Court of Appeal – Application for leave – whether error in finding conflict with the Planning Scheme – whether error in construing and applying policy – adequacy of reasons – whether remitted matter to be heard by same Judge

Facts: This was an Application for leave to appeal against a decision of the Planning and Environment Court which allowed a submitter appeal. That appeal concerned Council's approval of an application for a material change of use to facilitate development of a Neighbourhood Centre.

In allowing the appeal, the primary judge had concluded that the proposal conflicted with the provisions of the Planning Scheme in that it sought to use land identified for use as a Convenience Centre for a higher order use; it used residential land for commercial purposes; it sought to increase the area restriction for commercial activity permitted by the Planning Scheme; could not be described as being of a "domestic scale"; and did not meet only the needs of the immediate residential population. The Primary Judge then considered whether the proposal should be approved, notwithstanding its conflict with the Scheme. He concluded that need had not been established. The merits of the proposal were otherwise dealt with in three brief paragraphs.

Sunland contended that the primary judge erred:

  1. in finding that the proposal conflicted with the Planning Scheme;
  2. in construing and applying the Council's Urban Growth Policy ("UG Policy"); and
  3. by failing to give adequate reasons.

Decision: The Court held that:

  1. A conflict with a Planning Scheme was not to be found only where the approval of an application would have a consequence which the Scheme expressly identified as a conflict. Whether or not a conflict existed was to be determined by a consideration of the relevant provisions of the Planning Scheme in light of all the relevant facts.
  2. It had not been shown that the primary judge erred in finding a conflict with the Scheme resulting from the proposed use of the land as a Neighbourhood Centre. Such a use would prevent the use of its land for its designated use as a Convenience Centre.
  3. Although it appeared that there was conflict with the Scheme, it was preferable, having regard to the necessarily limited ventilation of factual questions before this Court, to express no concluded view on the point.
  4. No error or law in the primary judge's treatment of the UG Policy was identified.
  5. The existence of a conflict or conflicts was by no means obvious. In order to decide the question it was necessary to identify and construe the relevant provisions of the Scheme and, in some instances, to consider the application to the facts of the provisions so construed.
  6. It was thus incumbent on the primary judge to provide adequate reasons for his conclusions as to the existence and extent of conflict. Failure to give such reasons would be an error of law.
  7. The primary judge's reasons as to the existence of conflict essentially consisted of assertions. There was no discussion or even identification of the critical provisions of the Scheme. The process of reasoning in which the critical conclusions were reached was not identified even in a rudimentary way. Consequently, Sunland had succeeded in identifying an error of law.
  8. The reasons did not explain, adequately, the findings of the primary judge in relation to the expert evidence, the reasons for such findings or why the arguments advanced by the Council and Sunland as to why the proposal should be approved, notwithstanding inconsistency, were rejected. The inadequacy of the reasons in that regard also constituted an error of law.
  9. The matter should be remitted to the Planning and Environment Court.
  10. Whilst not doubting the primary judge's ability and capacity to determine the matter according to law, consistently with these reasons, any re-hearing should be before a different judge in order to avoid a real risk of allegations of apprehended bias with the attendant possibility of a further appeal and delays.

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