Supreme Court of Tasmania|2002-11-13|Before: Valerie J, Slicer J

Allen v Kingborough Council & Ors [2002] TASSC 98 (13 November 2002)

CITATION: Allen v Kingborough Council & Ors [2002] TASSC 98

HEARING DATES: 3, 27 - 29 May, 9 September, 16 October 2002

Local Government - Town planning - General matters - Planning schemes and instruments and like matters - Tasmania - Whether review panel exceeded its authority - Taking into account purpose of development.

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council and Others (1979) 145 CLR 485, referred to.

Administrative Law - Judicial review on grounds of ultra vires or defective exercise of powers - Abuse of discretionary power - Consideration of irrelevant matter or refusal to consider relevant matter - Planning tribunal failing to consider matters made relevant by planning scheme.

Statutes - By-laws and regulations - Validity - Vagueness and uncertainty - Particular cases - State Coastal Policy - "Coastal zone" - Impossibility of determining extent.

Richard G Bejah Insurance & Financial Services Pty Ltd v Maning & Ors [2002] TASSC 36; Attorney-General v Estcourt and the Wilderness Society Inc (1995) 4 Tas R 335, considered.

Administrative Law - Judicial review at common law - Procedural fairness - Existence of obligation - Under legislation - Particular cases - Power to permit calling of further evidence.

Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347; R v Land Use Planning Review Panel; ex parte M F Cas Tas 131/1998; R v RMPAT; ex parte Aquatas 82/1998; Kain v Glamorgan/Spring Bay Council (1996) 90 LGERA 326, distinguished.

Administrative Law - Appeals from administrative bodies - Statutory appeals from administrative authorities to courts - Appeals from particular authorities - Resource Management and Planning Appeal Tribunal (Tas) - Questions of law - Duty to give reasons - Failure to give reasons.

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, applied.

Seablest Pty Ltd T/A Salamanca Executive Suites v Smith, Lowman, Upcher, Ambrose, Casimaty, Hobart City Council A24/1996, followed.

Second, Third and Fourth Respondents: R A Browne

Second, Third and Fourth Respondents: Fitzgerald Browne

Judgment Number: [2002] TASSC 98

LINDSAY & STEPHANIE FARRELL, GEOFFREY R & VALERIE J BAXTER,

ALISON & TOM & RORY & SAM NICHOLSON, DAVID MILLS,

1 The appellant seeks review of a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") rejecting his proposed subdivision of land at Killora Bay on Bruny Island. The original application for approval had not been determined by the Kingborough Council within the prescribed period and, pursuant to the Land Use Planning and Approvals Act 1993 ("LUPA"), there was a deemed approval upon conditions to be set by the Tribunal. The powers of the Tribunal were extensive, ranging from unconditional permission, to restrictions or conditions applicable to an original application. The land for which approval was sought was controlled by the Bruny Island Planning Scheme ("The Bruny Scheme") and was zoned as "village". At the time of its consideration of the application, the Tribunal was entitled and/or required to have regard to a range of legislative and Policy provisions which included:

* Environmental Protection and Biodiversity Conservation Act 1999 (Cth);

2 Those legislative, planning and policy provisions required the Tribunal to consider many planning principles and permitted extensive discretionary power in reconciling competing interests and implementing statements of general principle. It is not appropriate for this Court, given the nature of an appeal from the Tribunal, to identify and articulate each principle by reference to a particular enactment and policy and revisit each matter considered. Relevantly, many of the principles and planning requirements are replicated in the various statutory and regulatory provisions considered by the Tribunal.

3 The Tribunal did not reject outright the application. It stated, at par38, that:

"Upon all of the above evidence the Tribunal is satisfied that ultimately some subdivision of the subject site may reasonably occur."

4 However, it was not satisfied that the conditions which governed the form and nature of the proposed subdivision proposed by the appellant were sufficient to accommodate the appropriate development of the land as required by the relevant planning provisions and principles.

5 In its decision, the Tribunal reviewed the evidence placed before it in the light of the statutory requirements, much of it evidence in narrative form. It dealt with the dimensions of the particular lots, access, erosion, fire, geographic and botanic features, and the like, and the overall impact of development. It did not make precise findings on every aspect considered, but it is possible to identify issues decided against or in favour of the proposed development, which relevantly include:

(1) The proposal came within the ambit of the Village Zone of the Bruny Scheme which permitted subdivision for the purpose of human habitation. Specifically the Tribunal, at par15, found that the Bruny Scheme:

"... envisages approved building areas on each lot and prevention of the keeping of cats. Clause 6.1.1(f) is specific to the site, and therefore has more weight with respect to whether it is designated for subdivision and building, than the other more general provisions of the Scheme, when reading the Scheme as a whole. The Tribunal accordingly construes the Scheme as envisaging subdivision in the above terms, upon the site."

(2) There were potential problems associated with fire risk, namely:

"17 The line of the fire break is such that there is little useful land on the proposed Lot 4 which could accommodate a residence to the south-east of the fire break, and none on Lots 1, 2 or 3 which would do so.

24 The evidence for each party was further that each house site would require an access track, and clearance to avoid undue fire risk."

(3) The presence of nearby existing homes, some several hundred metres from the settlement of Killora, brought the area within the definition of "settlement" and did not attract a clause prohibiting "ribbon development" since:

"The proposed subdivision, assuming that it would give rise to residential development, would in the opinion of the Tribunal be based on the settlement or township at Langfords Point. Assuming that it constituted urban or residential development, it would not be in conflict in that respect with Clause 2.4.1 of the State Coastal Policy."

(4) Protection of an endangered species, the Forty-spotted Pardalote, nesting on the land, required the preservation of habitat, especially Eucalyptus viminalis because;

"A significant and continuing threat to the Forty-spotted Pardalote on Bruny Island is clearance and degradation of habitat of known colonies, and other areas of high quality habitat."

"... liable to displacement by Manorina melanocephala, the Noisy Minor and/or Pardalotus striatus the Striated Pardalote, each of which readily invade forest opened up by, inter alia, residential development."

In relation to this factor, the Tribunal noted the opinion of a consultant wildlife ecologist that:

"... it would be necessary to mitigate the potential impact by restrictions on activity likely to damage the habitat; by combining Lots 6 and 7 into a single lot; and extension of the boundary of Lot 1 in a southerly direction to encompass the entire northern colony adjacent to Killora Road."

In relation to the impact of domestic cats on the colony, the Tribunal expressed itself:

"... unable to evaluate the extent of the risk which this would constitute, but accepts that it is a relevant factor."

(5) The one plant species of conservation significance, the Tasmanian Pepper Cress, was "not considered at risk".

(6) The sands, sags and soil were prone to "erosion when ... disturbed", but that it was unlikely "the proposed subdivision would have any significant adverse impact on the site" but could be controlled by "careful subdivision".

(7) Sewer, sewage and storm water disposal were possible without health or environmental problems.

(8) Access from each lot to the beach should be restricted to one or two points of entry because:

"... there is a significant risk of erosion if owners of the proposed lots are allowed to establish their own routes ...".

(9) Subject to several conditions protecting Aboriginal relics, there was no likelihood of interference with Aboriginal cultural material.

(10) Existing road conditions were adequate to allow the proposed subdivisions.

6 There was some discussion during the course of the hearing concerning possible alterations to the proposal and a planning expert retained by the appellant accepted an opposing recommendation:

"... for consolidation of Lots 6 and 7 and extension of Lot 1 to encompass all of the northern Forty-spotted Pardalote colony habitat as appropriate."

This preparedness to modify the proposal, shown during the course of the hearing, is the basis of a ground of appeal.

7 The Tribunal was satisfied that some subdivision would be approved and invited the appellant to make a fresh application when further material was obtained and modifications submitted. It identified issues requiring further attention as being:

"Building envelopes and vegetation clearance zones; access ways from Nebraska Road; access from the lots to Killora Bay Beach; any Eucalyptus viminalis or other threatened species which would be affected by those building or clearance areas or accesses."

8 However, the Tribunal was not satisfied that the evidence:

(a) Showed that it is possible to locate any houses which would be placed upon the proposed lots, in a way which ensures that no or not undue number of Eucalyptus viminalis are lost.

(b) "... demonstrated a way to protect the habitat values of existing stands of E viminalis, whilst allowing for both house fire protection envelopes and access ways. It may be that as a result of these matters the proposed lot boundaries need adjusting further."

"... the establishment of adequate access tracks to the beach which at the same time protect the erodable cliff and steep slope area ...".

"... need the establishment of interrelating rights of way over some lots in favour of those lots which cannot enjoy direct access to the beach because of the erosion potential factors"

and that such matters could not be resolved once the subdivision had been completed.

(d) Whether desired or practicable house location might:

"... mean that one or more of the proposed lots is unsuitable in terms of its extent or boundaries."

9 On the basis of the above identified matters, the Tribunal concluded that it was "unable to determine these matters upon the evidence before it: and determined "that it is not appropriate to allow the proposed subdivision".

10 The appellant advanced 10 grounds of appeal. They can be characterised as improper regard to future consequence or ultimate use (grounds 1 - 3), procedural irregularity (grounds 4, 5 8 and 9), failure to provide adequate reasons (grounds 6 and 7) and reliance on a policy statement held by this Court to be invalid (ground 10).

"That the Tribunal erred in law in that the application before it was for the approval of a plan of subdivision and the Tribunal erred in requiring that it must be satisfied that any development consequential upon the subdivision may and will be adequately controlled."

12 The application of the subdivision of land was not determined by the Kingborough Council within the period required by LUPA, s59, and by virtue of subs(3), the appellant was entitled to:

"... apply to the Appeal Tribunal for an order determining the conditions on which the permit was to be granted."

13 The application was for approval of a subdivision in accordance with the Local Government (Building and Miscellaneous Provisions) Act 1993, Pt3, which generally provides:

"81 - (1) An owner of land must not subdivide the land except in accordance with -

(b) a plan of subdivision which has been approved by the granting of a permit under the Land Use Planning and Approvals Act 1993.

(2) Unless the relevant planning scheme or interim order provides otherwise, an application for approval of a subdivision plan is to be made as if it were an application for a discretionary permit under section 57 of the Land Use Planning and Approvals Act 1993."

14 The combination of that enactment and the Local Government Act 1962, s733A (since repealed by No 50 of 1990) required consideration of the Bruny Scheme. The Bruny Scheme applies to a subdivision as defined by the Local Government Act, s462, but refers to development as meaning:

"(a) the carrying out of building, engineering, mining or other operations in, on, over, or under the land;

(b) the demolition, in whole or in part, of any building or other works on the land;

(d) the carrying out of any procedure or the doing of any other thing that, by virtue of any provisions in this Scheme, is treated as development for the purpose of the Scheme;"

15 Part 5 of the Bruny Scheme refers to "Subdivision Applications" which, in turn, renders the application as discretionary under LUPA, s57, which affords wide discretionary power. The Council was entitled to pay regard to a wide range of discretionary powers to "settle" the terms of the subdivision. Its failure to do so was "deemed to constitute a decision to grant a permit on conditions to be determined by the Appeal Tribunal". The Tribunal was permitted, after hearing the application (s59(4)):

"... in addition to its powers under the Resource Management and Planning Appeal Tribunal Act 1993 -

(b) grant the permit and direct that the permit must contain specified conditions; or

(c) in the case of an application for a permit to which section 57 applies, direct that a permit must not be granted."

16 Central to the appeal is the contention that the Tribunal went beyond its power by considering the "ultimate use" of the proposal, whereas it ought to have been confined to "reasonable conditions" which determined the "layout" of the subdivision (Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council and Others (1979) 145 CLR 485) and not the purpose for which the land was intended. It is said that once the subdivision was "settled", there could be further consideration of "consequent" conditions.

17 The problem for the appellant is that if there remains a specific statutory prohibition to the proposal, external to the Bruny Scheme, the Tribunal was required to reject the development because it would be contrary to law. In this case the existence of the Threatened Species Protection Act required the Tribunal to consider the impact of development on habitat. Much of its reasoning and conclusion was dependent on this consideration. The Tribunal was required to consider "ultimate use" and, by necessary implication, "proposed layout" in determining this issue.

18 Grounds 2 and 3 of the notice of appeal claim error in that:

"2 The Tribunal erred in law in rejecting the application for subdivision upon the grounds that the following needed to be identified and be part of the application or evidence in support of the application:

(i) Building envelopes and vegetation clearance zones;

(iv) Any eucalyptus viminalis or other threatened species which would be affected by those building or clearance areas or accesses;

3 The Tribunal erred in law in that it rejected the appellant's application for subdivision upon the basis that it did not include an application for the ultimate use or development of each lot to be crated in the subdivision."

19 Even if the basis for rejecting ground 1 is incorrect, the Tribunal was nevertheless permitted and required to pay regard to the intended use and impact of the proposal by the application of the Bruny Scheme. The Local Government (Building and Miscellaneous Provisions) Act prohibits the approval of a subdivision unless certain pre-conditions are met (s84) and sets out criteria which, unless met, require refusal. It also imposes specific minimum conditions which include "access" drainage and inundation (s109(1)(f), (g) and (h)). Absence of any particular provision from the Bruny Scheme does not relieve a planning authority from the requirements of the above legislation, which requires consideration of "ultimate use".

20 The Tribunal was also required to pay regard to the objectives stated in LUPA, SchI, which include:

"1 The objectives of the resource management and planning system of Tasmania are -

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

2 In clause 1(a), 'sustainable development' means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while -

(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c) avoiding, remedying or mitigating any adverse effects of activities on the environment.

The objectives of the planning process established by this Act are, in support of the objectives set out in Part 1 of this Schedule -

(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and

(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and

(d) to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels."

and apply to planning schemes (LUPA, s20) and permits (LUPA, ss20, 50, 51). These requirements are replicated, in part, in the State Policies and Projects Act 1993.

21 The Bruny Planning Scheme, Pt6, provided for "minimum lot size and density" of a subdivision in a village zone and governed the application. But Pt5, applicable to all subdivisions, required consideration of many factors, including:

"5.2.4 As provided for under the Act, Council shall, in its determination of an application to subdivide, take into consideration requirements particular to this Scheme, including:

c) the suitability of the land including its slope and topography for its intended purpose;

d) the suitability of the layout of streets and allotments having regard to:-

v) the amenity to be gained by careful design and location of streets and lot boundaries, retention of sound existing trees and the use of favourable aspects for lots when available;

j) the successive stages in which subdivision is intended to proceed;

m) the age, condition, number and density of native trees and flora, and the nature of the soil, its drainage characteristics and overall slope of the land;

n) land which has high scenic, historic or landscape qualities worthy of preservation, particularly coastal and woodland areas and tourist routes;

22 The proposal of the appellant attempted to address those matters, and the Tribunal was required to deal with them. Parliament and the Bruny Scheme required the lots comprised in the proposed subdivision to be suitable for the stated purpose since approval gave a right to build. Determination of lot boundaries, access rights, or easements and fire protection zones could not be left for subsequent control. The Tribunal was not satisfied that:

(2) the subdivision provided for interrelating rights of way and access to the foreshore;

(3) the allotments did not adequately accommodate the competing factors of:

It was entitled to so do. Grounds 2 and 3 have not been made out.

23 Following the hearing of grounds 1 - 9 of the appeal, the appellant sought leave to amend his notice of appeal by the addition of ground 10, which states:

"The Tribunal erred in law in that it took into account the State Coastal Policy being an invalid document."

24 The application was made following the decision of Richard G Bejah Insurance & Financial Services Pty Ltd v Maning & Ors [2002] TASSC 36 delivered on 16 June 2002. In that decision, Crawford J held that the State Coastal Policy was invalid on the ground of uncertainty.

25 The application was strenuously opposed by all respondents, primarily on the grounds that the issue had not been raised at the hearing (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310), the appellant was bound by the conduct of his case (Metwally v University of Wollongong (No 2) (1985) 60 ALR 68) and the need for finality in the conduct of litigation (Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367; R v Unger (1977) 2 NSWLR 990). The amendment was allowed during the course of the hearing.

26 The Tribunal had previously determined in its decision W Maning & Ors v Break O'Day Council and Nunn J159/2001, as a matter of jurisdictional competence (Attorney-General v Estcourt and the Wilderness Society Inc (1995) 4 Tas R 335), that the Policy was one which could be validly taken into account in its determination. Counsel for the appellant did not concede the correctness of that decision but, appropriately, did not seek to re-argue its basis before the Tribunal. The decision of the Tribunal was detailed and the product of detailed submissions. Challenge to its basis and import was for any appellate process and repetition of the same arguments previously advanced was inappropriate and likely to have been unproductive. In his opening statement to the Tribunal, counsel for the appellant specifically referred to the determination, adding that "no doubt the Tribunal will be guided by it(s) previous ruling". He advised the Tribunal that the determination was the subject of an appeal adding:

"We would certainly submit that in the present case the scheme in question consistent with the policy, if indeed the policy is valid, has clearly set aside and made a delineation that the village zone is proposed to be developed and that as is the rule residential but otherwise there is blanket prohibition."

27 Counsel returned to the issue in his closing submissions and attempted to distinguish the application of the determination, stating, in response to a question from the Chairman:

"... that is an appropriate legal interpretation for the Tribunal but clearly the Tribunal has considered in Manning v the Break O'Day Council what it regards as a settlement.

CHAIRMAN: Can that be right, though - I mean, you can have two different schemes with equally different definitions of a settlement or - it might be the case - the State Coastal Policy, could it mean both?

MR SPENCE: No - the State Coastal Policy, assuming it is valid, is - and it is not conceded that it is given that - yes - clearly we would submit that there were, I think I said in opening that there were differences from the Manning case to this present case given the difference in the scheme. We would submit that - and quite clearly that is the case, the Break O'Day Scheme, the performance based scheme, there is reference to the alternative, Mr Graham drafted, the alternative solutions and that was in context to the State Coastal Policy. We would submit that one has to and I think that the Tribunal has held in the Manning case that the State Coastal Policy doesn't apply to individual developers."

28 Mr Graham, who represented the respondents, also relied on the previous ruling in support of the case for the objectors.

29 The import of the Policy was clearly an issue raised on the hearing and the appellant clearly did not concede its validity.

30 The question was raised during the course of the hearing of this appeal and counsel for the appellant did not then seek to add an amended ground. He took that decision following an exchange with the Court as to whether it would require a revisiting of a secondary matter, already subject to judicial review. On 17 June 2002, after the conclusion of argument in relation to this hearing, the reasons for judgment in Richard G Bejah Insurance & Financial Services Pty Ltd v Maning & Ors (supra) were published. Shortly thereafter, the appellant sought leave to add ground 10 to his notice of appeal, framed in accordance with those reasons. Irrespective of that application, this Court would have been required to consider whether the decision impacted on this appeal and afforded the parties an opportunity to contend for the validity or otherwise of the Policy and, assuming invalidity, the import or otherwise of that status on this appeal. This was not a case where an unsuccessful party seeks, after a judgment or verdict, to rely upon a decision given after the event (R v Unger (supra); Piening v Wireless [1968] HCA 7; (1968) 117 CLR 498; Eggins v Broomshead Bowling and Recreation Club Ltd (1986) 5 NSWLR 521; cf Western Suburbs Hospital v Currie (1987) NSWLR 511). Nor did the amendment affect the way in which the parties had conducted their respective cases during the initial hearing (Asia Pacific Resources Pty Ltd v Forestry Tasmania 101/1997) and they had opportunity to argue the point during the continued hearing of the appeal. It was for these reasons that leave was granted.

31 However, the amendment does not avail the appellant. Central to the RMPAT hearing was the status of the land. Under the Bruny Scheme, the land was classified as a "zoned village". The Tribunal found that, in addition:

"... the proposed subdivision land lies within the Coastal Zone under the State Coastal Policy 1996."

The clauses of that Policy relevant to this appeal are:

"2.4.1 Care will be taken to minimise, or where possible totally avoid, any impact on environmentally sensitive areas from the expansion of urban and residential areas, including the provision of infrastructure for urban and residential areas.

2.4.2 Urban and residential development in the coastal zone will be based on existing towns and townships. Compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast.

2.4.3 Any urban and residential development in the coastal zone, future and existing, will be identified through designation of areas in planning schemes consistent with the objectives, principles and outcomes of this Policy."

32 The appellant was concerned that the location of the proposed subdivision might attract the terms "ribbon development" and "unrelated cluster developments" referred to in the Policy, cl 2.4.3 and, irrespective of its status as a "zoned village" within the Bruny Scheme would be prohibited because of the Policy. The respondents had contended that the development was "individual" and came within the ambit of cl 2.4.2. On this point, the Tribunal found in the appellant's favour, finding, at par20:

"20 The proposed subdivision would extend north from the group of three houses at Langfords Point, in turn several hundred metres from the settlement at Killora. The evidence was that the three houses at Langfords Point have been there for many years. The question arises whether the proposed subdivision would be, within Clause 2.4.2. of the State Coastal Policy, 'based on existing towns and townships'. In the present case, that is, whether it would be 'based on' a 'township'. The collection of houses at Langfords Point falls within the definition of a 'settlement'. A 'township' is defined in the Macquarie Dictionary to include a settlement. The proposed subdivision, assuming that it would give rise to residential development, would in the opinion of the Tribunal be based on the settlement or township at Langfords Point. Assuming that it constituted urban or residential development, it would not be in conflict in that respect with Clause 2.4.1 of the State Coastal Policy."

33 Assuming that the State Coastal Policy is invalid for the reasons stated in Bejah (supra), the determination by the Tribunal was that it had no effect in this case and any error has no import.

34 The appellant correctly contended that the Tribunal further referred to the provisions of the Policy in relation to its determination.

35 The State Coastal Policy was created under the State Policies and Projects Act, which determines the functions and effects of the Policy (s5), requires a panel to amend planning schemes in cases of inconsistency (s13(3)), provides for paramouncy in instances of inconsistency (s13(1)) and imposes sanction in the event of contravention (s14). The decision in Bejah (supra) held the Policy to be invalid because it was impossible to determine the geographical extent of the application of the Policy. The institutional application of the Policy was expressed as:

This Policy applies to the Crown in all its capacities, in particularly by force of ss4 and 14 of the State Policies and Projects Act 1993 and s63(2) of the Land Use Planning and Approvals Act 1993. Subject to contrary statutory provision, it also applies to statutory authorities.

Planning authorities are also required to give effect to this Policy.

The State Coastal Policy applies to all of Tasmania, including all islands except for Macquarie Island which is subject to a special management regime."

36 Whether or not it is invalid has no effect on the matters considered by the Tribunal in this case. The relevant statements appearing in the Policy were already replicated in the Bruny Scheme or legislative provisions, or had no effect on the Commonwealth enactment. No amendment was required of the Bruny Scheme or relevant legislation relevant to the determination of the Tribunal since there was no inconsistency between them and the Policy. The Tribunal was entitled to rely on concurrent provisions and the invalidity of one did not impact on the other. An analysis of the various matters raised by the appellant (comprehensively outlined by counsel for the first respondent) shows concurrence, or absence of inconsistency, in all matters raised by the appellant other than that of the import of cl 2.4.2 found in the appellant's favour.

37 The Tribunal was primarily engaged in making a judgment in accordance with general statements of principle applicable to the appellant's development of land. It was not required, apart from jurisdictional questions or the determination of land status, to interpret the meaning of particular words or the specific effect of a particular phrase. It was dealing with the effect of development on a natural resource and its impact on the surrounds. It was required to effect a balance between competing interests and statements of principle. It did so within the ambit of legislative provisions and planning principles. Identification and isolation of a particular statement of general principle which might differ in precise language if another statement is selected does not, of itself, demonstrate error in the exercise of judgment or the decision-making process.

38 This Court did not seek detailed argument on the correctness of the decision in Bejah (supra) and no separate or additional arguments were put in relation to the validity or otherwise of the State Coastal Policy. This determination is made on the assumption that for the reasons given in Bejah that the Policy, as a whole, has no application, on that assumption none of the matters relied upon by the appellant warrant the upholding of ground 10 of the appeal and it ought be dismissed or, if upheld, have no effect on the disposition of this appeal.

39 The grounds of appeal relevant to the general claim of unfairness are;

"4 The Tribunal erred in law in that it failed to afford the appellant natural justice in that failed [sic] to raise with the appellant or provide the appellant the opportunity of providing:

(i) Building envelopes and vegetation clearance zones;

(iv) Any eucalyptus viminalis or other threatened species which would be affected by those building or clearance areas or accesses.

5 Further, or in the alternative, to ground 4 the Tribunal erred in law in that it had a duty to allow the appellant to adduce evidence on the following matters:

(i) Building envelopes and vegetation clearance zones;

(iv) Any eucalyptus viminalis or other threatened species which would be affected by those building or clearance areas or accesses;

That duty arising from the subject matter, scope and purpose of the Land Use Planning and Approvals Act 1993 and the Resource Management and Planning Appeal Tribunal Act 1993 ('RMPAT') one facet of which was a duty to endeavour to facilitate a decision based upon merit.

8 The Tribunal erred in law in that it took into account an irrelevant consideration in not affording the appellant an opportunity to call further evidence and rejecting the application: viz

That there is such a potential for change to the layout of the subdivision.

9 The Tribunal erred in law in that it misdirected itself as to why it ought not afford the appellant the opportunity of calling further evidence in that it stated there was a potential for change to the layout of the subdivision and that the appropriate course was to reject the proposed subdivision."

40 It has been necessary to consider in detail the reasons given by the Tribunal in rejecting the application in the form proposed, in order to understand the basis of these grounds advanced by the appellant.

41 The Tribunal was dealing with a proposal which had, by law, been deemed to have been approved. It was required to consider appropriate conditions which accorded with planning requirements. This was not an "all or nothing" determination. Central to the determination were:

(1) The number of lots included in the subdivision.

(2) The impact of the creation of houses on those lots, the siting of such homes and the impact of habitation on the surrounds.

(3) The need to preserve the nature of the foreshore and lessen the onset of erosion and destruction of flora which would prevent or inhibit erosion.

(4) Protection of an endangered species and its habitat.

42 It was a complex mixture and each factor impacted on the other. The appellant had already modified an earlier proposal and had, quite properly, attempted to develop his land in accordance with appropriate measures designed to accommodate environmental requirements. The respondents were attempting to limit the extent of development and restrict impact. Variation of a specific condition required consideration of its impact on others already agreed to or which had accommodated a different factor.

43 An expert witness retained by the appellant had, in his evidence, conceded certain criticisms of the proposal and had suggested certain measures which would accommodate some of the concerns identified during the course of the hearing. One of the issues was whether the number and size of the lots to be included in the subdivision were sufficient or insufficient to accommodate the needs for the preservation of habitat. An example of the preparedness of the witness Shepherd to acknowledge the validity and expertise of a witness giving a different opinion can be seen in the following exchanges with counsel:

"I haven't been asked to resolve the issue of seven lots, or five lots, or even some of the minor boundary modifications that Doctor Bell had suggested. They seem to me to be a good idea, but I haven't assessed them in detail.

And yet you say they should be implemented ... I think that on the basis of the advice given from Doctor Bell, they are certainly worth considering. But it's his area of expertise, not mine.

I am aware of, and I acknowledge though Doctor Bell's consideration about the potential fragmentation of the forty spotted pardalote habitat. And I suppose, in response to that, all I can say is, that if that is a matter of priority, in other words determining weight, then I would suggest that, yes, the modifications that Doctor Bell has suggested are appropriate. If it's not a matter of priority or determining weight, and we'll have to wait until we hear from Doctor Bell on that matter, then I'm happy with the seven lot subdivision. I'm simply guided by his advice in this particular matter."

Counsel for the appellant dealt with the possibility of variation of conditions in the following manner:

"There has been some issue - well Doctor Bell raised the issue of reduction of the subdivision by one lot or by amalgamating lot six an [sic] seven. We would submit that, whilst that is not necessarily urged upon the Tribunal, if that was to be the difference between a rejection or approval, we would submit that it is within the Tribunal's jurisdiction to make such a variation in the form of a condition. We would submit, pursuant to the principles that, I think, Mr Chairman has allocated to Fox No 2 about what constitutes a change in the actual proposal that a reduction by one lot would not be regarded as a change in the proposal, it would be a condition which may be justified by the evidence put forward.

In conclusion, it is our submission that the Tribunal ought direct that a permit be issued by the council to the applicant containing such conditions as are appropriate based upon the conditions put forward by Mr Shepherd."

44 Counsel did not seek an adjournment of the hearing to enable the appellant to further modify his proposal or call further evidence. The Tribunal considered the issue of modification and identified:

45 The Tribunal further considered the alteration of the number of lots by combination of lots or reduction of boundaries, stating, at par38:

"It may be that as a result of these matters the proposed lot boundaries need adjusting further. To combine lots 6 and 7 into one lot may, for example, still not provide a place for a residence and its access and associated tracks which does not cause an unacceptable loss of E viminalis. It may be that for that reason there is no further suitable house site, south of the existing house on lot 5. Similarly, the establishment of adequate access tracks to the beach which at the same time protect the erodable cliff and steep slope area, will need the establishment of interrelating rights of way over some lots in favour of those lots which cannot enjoy direct access to the beach because of the erosion potential factors. That matter cannot be resolved once the subdivision has been completed. Similarly, the potential location of any house site in a position which would both allow the kinds of view which would be available over the Channel, and at the same time do not require unreasonable clearing of the vegetation on the sites, as well as satisfying the other factors of fire protection and eucalypt protection referred to above, may mean that one or more of the proposed lots is unsuitable in terms of its extent or boundaries. The Tribunal is unable to determine these matters upon the evidence before it."

46 It then considered and rejected the possibility of extending the hearing, stating, at par40:

"The Tribunal has the option of affording the applicant an opportunity to call further evidence with respect to the above matters of concern. Upon the evidence given however the Tribunal considers that there is such a potential for change to the layout of the subdivision that the appropriate course is to reject the proposed subdivision. When the relevant material has been obtained, a fresh application may be made, addressing the above matters. Having regard to all of the above matters, the Tribunal considers that it is not appropriate to allow the proposed subdivision."

47 The appellant sought to meet the issue with two propositions. The first is that the matters identified amounted to modifications which permitted either orders varying the conditions or the calling of further evidence (grounds 4 and 5) or ought have granted the application leaving the minor modifications to be made at the time of the sealing of the final plan or the grant of approval for specific buildings (grounds 8 and 9).

48 The matters identified by the Tribunal were substantial issues and not minor modifications susceptible to easy variation (Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347; R v Land Use Planning Review Panel; ex parte M F Cas Tas 131/1998; R v RMPAT; ex parte Aquatas 82/1998). The Tribunal doubtless had discretion to adjourn the hearing to enable the appellant the opportunity to redress the identified difficulties. But it was entitled to determine its own procedure provided that it "ensures that every party ... is given a reasonable opportunity to present the party's case" (RMPAT, ss16, 19). This is not a case where documents were not disclosed (Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49) or particular knowledge derived from the expertise of a specialist tribunal is used in the decision-making process without opportunity for the parties to test or respond to it (Kellar v Drainage Tribunal [1980] VicRp 43; [1980] VR 449). Whilst the Tribunal has a duty to achieve a "merits" based outcome (RMPAT, s22(1)(b), (3)(b)), it could not be expected to redraw the proposal. In Kain v Glamorgan/Spring Bay Council (1996) 90 LGERA 326, Wright J held that the refusal to grant a permit for the sale of liquor from an existing commercial complex because of the absence of a "floor plan" was erroneous since the Tribunal failed to either remit the matter to the Council or advert to "alternative methods of disposition". His Honour remained "unpersuaded that the Tribunal breached the rules of natural justice", but rather that the planning authorities failed in a proper exercise of a statutory duty. In this case, the matter could not be remitted to the Council and the complexities of the unresolved issues did not permit easy resolution. It was impracticable, for example, for the Tribunal to redesign the allotments to allow for appropriate access to the foreshore or specify which areas of vegetation ought be retained so as to enable compliance with the provisions of the Threatened Species Protection Act or any applicable provisions of the Environment Protection and Biodiversity Conservation Act (Cth).

49 The Tribunal was not rejecting the appellant's right to develop. It was required to fix conditions and the appellant had, and continues to have, the right to put a fresh proposal to the Tribunal which takes into account the issues identified. There was no denial of procedural fairness and grounds 4 and 5 ought fail.

50 The second proposition is that the Tribunal was either not required to pay regard to the eventual use of the parcels of land (ground 8 - irrelevant consideration) or was wrong in concluding that the proposal could not be readily amended by an alteration of boundaries and easements at the time the plan was sealed or the granting of building permits at the time of construction. The power to grant a permit contingent upon an adherence of title was recognised by Evans J in Howie v Clarence City Council & Anor [2001] TASSC 53; (2001) 114 LGERA 155), but was not possible in this case. The power to permit ancillary conditions might be recognised in cases where the decision constitutes a "consent to the application" (Television Corporation Ltd v Commonwealth [1963] HCA 30; (1963) 109 CLR 59), provided that the conditions are not significant (Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Transport Action Group Against Motorways Inc v Roads and Traffic Authority and Another [1999] NSWCA 196; (1999) 46 NSWLR 598). In this case, there had been a deemed approval and the Tribunal was required to define the final conditions attaching to the permitted use of the land. Questions of whether habitat could be protected by combining lots 6 and 7 or reducing other respective areas could not be left to the authority responsible for the sealed plan. The location of a house required consideration of appropriate vegetation clearance and its interrelationship with fire protection. The finding "such a potential change" objected to means no more than a recognition of the varied permutations of the relevant factors. Those permutations required the detailed formulation of a proposal not an "ad hoc" judgment. Any attempt by the Tribunal to impose further conditions would have required it to afford opportunity to the respondents to further contest the new formulation. Repeated refinement would not have resulted in a decision on "the merits".

51 Grounds 6 and 7 of the notice of appeal claim error in that:

"6 The Tribunal erred in law in that it failed to provide adequate reasons as required by s24 (2) of the RMPAT as to why it would not afford the appellant the opportunity to call further evidence.

7 The Tribunal erred in law in that contrary to s24 (2) the RMPAT [sic] it failed to provide reasons explaining what it meant by 'upon the evidence given however the Tribunal considers that there is such a potential for change to the layout of the subdivision that the appropriate course is to reject the proposed subdivision'."

52 The conclusion of the Tribunal that there was "such a potential for change to the layout of the subdivisions" is self-evident. The matters identified by the Tribunal and their permutations are clearly apparent from any review of the original application, evidence and the reasons for determination.

53 The Tribunal acknowledged that alteration to one component impacted on the other matters raised at the hearing and properly concluded that it could not easily frame the conditions required to accommodate the competing interests. The Tribunal did not "reject the subdivision". It invited substantive modification which might have required resurvey of the proposed allotments, which in itself constituted a "potential for change". There is no substance in ground 7 of the notice of appeal.

54 The appellant did not seek an adjournment of the proceedings, but simply indicated that he was content for modification to be made to the proposed conditions. Counsel for the appellant concluded his submission by stating:

"... that the Tribunal ought direct that a permit be issued by the Council to the applicant containing such conditions as are appropriate based upon the conditions put forward by Mr Shepherd."

55 The Tribunal had not been requested to rule upon an application for an adjournment or leave. It stated that it had an option to afford the appellant the opportunity to call fresh evidence, but that the complexities apparent from the evidence warranted a fresh approach rather than an "ad hoc" variation. The reasoning process is apparent from the language of the decision. The exposure of reasoning was sufficient for the issue (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Seablest Pty Ltd T/A Salamanca Executive Suites v Smith, Lowman, Upcher, Ambrose, Casimaty, Hobart City Council A24/1996; Transend Networks Pty Ltd v Launceston City Council & Ors [2001] TASSC 134). Grounds 6 and 7 ought be dismissed.

56 Grounds 1 - 9 have not been made out. Assuming the appellant has succeeded in establishing the validity of ground 10, the appeal ought nevertheless be dismissed. RMPAT, s25, permits "appeal to the Supreme Court, on a question of law from any decision" which permits the Court to:

"(5) ... may make such orders as it considers appropriate.

(6) Without limiting subsection (5), the orders that may be made by the Supreme Court on an appeal include -

(a) an order affirming a decision of the Appeal Tribunal; and

(b) an order setting aside a decision of the Appeal Tribunal and -

(i) making a decision in substitution for the decision set aside; or

Allen v Kingborough Council & Ors [2002] TASSC 98

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (220 paragraphs)

Allen v Kingborough Council & Ors [2002] TASSC 98 (13 November 2002)

Parties

Legislation Cited (5)

Cases Cited (17)