Environment and Planning - Courts and Tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Appeal against a refusal to grant a permit - Tribunal has no jurisdiction to grant permit.

Scurr and Others v Brisbane City Council and Another [1973] HCA 39; (1973) 133 CLR 242, referred to.

Land Use and Planning Appeal Act 1993 (Tas), s57.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s23(1).

Administrative Law - Judicial review legislation - Decision within the Act's application - What constitutes a decision.

Judicial Review Act 2000 (Tas), ss17(1) and 18(1).

Judgment Number: [2004] TASSC 122

BREAK O'DAY COUNCIL v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL, GLENCO ENSTONE PARK PASTORAL CO PTY LTD

1 The appellant Council has brought this appeal pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, ("the Appeal Act"), s25, and/or the Judicial Review Act 2000 ("the Review Act"), ss17(1) and/or 18(1). The appeal concerns a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") dated 20 July 2004.

The events leading to the making of the decision

2 Glenco Enstone Park Pastoral Co Pty Ltd, the second respondent, owned some land at Falmouth on Tasmania's east coast. It wished to subdivide it into 11 lots. It made a development application to the appellant Council for a permit to do this. On 10 March 2004, the Council made the following decision:

"That pursuant to Section 57 of the Land Use Planning & Approvals Act 1993 and the Break O' Day Planning Scheme 1996 that the application for an 11 LOT SUBDIVISION on land situated at 22464 TASMAN HIGHWAY, FALMOUTH described in Certificate of Title Volume 136082 Folio 1 be REFUSED due to the following reasons:

5 The application has not demonstrated compliance with the provisions of the Break O 'Day Planning Scheme 1996 by not providing correct information.

6 The application has not demonstrated compliance with table 8.1 (l) of the Break O' Day Planning Scheme 1996 by not ensuring that the balance land will be suitably protected.

7 The application has not demonstrated compliance with table 8.1 (p) of the Break O' Day Planning Scheme 1996 by not providing a complete Development Suitability Assessment as required for a parcel of land.

8 The application has not demonstrated compliance with table 8.1 (d), (e) and (n) of the Break O' Day Planning Scheme 1996 by not demonstrating how future residential development of the site can be viable and able to be approved by Council."

3 The Land Use Planning and Approvals Act 1993 ("LUPA"), s61(4), conferred on the appellant company a right of appeal to the Tribunal within 14 days after it was notified of the decision. The appellant company appealed to the Tribunal. The grounds of appeal were:

"1 The application is in accordance with the requirements of the Break O 'Day Planning Scheme.

2 Council argues that the application is deficient but hav [sic] not afforded the applicant the opportunity to provide additional information. This is contrary to their procedure with other applications."

4 That appeal was eight days out of time. The Appeal Act, s13(2), gave the Tribunal jurisdiction to extend the time for instituting an appeal. The respondent company sought such an extension of time. On 29 April 2004, the chairperson extended the time for the institution of the appeal. In the course of his written reasons for doing so, the chairperson noted the basis of the Council's refusal to grant a permit and said:

"Given council's basis for refusal of the application, it is important that any potential deficiency in the application be identified and rectified, before the appeal can proceed. The council is therefore directed within 10 days of the date of this letter to provide to the appellant and to the Tribunal as detailed as possible a list of the matters which it requires to be addressed in the application. It is directed that the appellants provide a response to that request within seven days of its receipt. In the event of a dispute as to the adequacy of the response, application can be made to the Tribunal for directions."

5 The chairperson also gave the following direction:

"It is directed that council, within 14 days, notify the adjoining landowners and place a notice in a newspaper circulating in the area, and notice on each public boundary of the land, of the existence and subject matter of the application and of the directions hearing set down for this appeal."

6 Mr McElwaine, who appeared for the appellant Council, both in the Tribunal and on this appeal, submitted that it was at this point the appeal "went off the rails". He submitted that the Tribunal should not have tried to rectify any deficiency in the application. Mr McElwaine's contention was that the jurisdiction of the Tribunal was either to uphold the Council's rejection of the application and dismiss the appeal, or allow the appeal and send the application back to the Council for determination in accordance with law. Mr Brett, who also appeared in the Tribunal and on this appeal on behalf of the developer, submitted that the directions given by the chairperson were appropriate and that the ambit of the appeal was not confined, as Mr McElwaine submitted. It was Mr Brett's submission that the Tribunal was authorised to exercise all the powers of the Council and, accordingly, was entitled to correct any deficiencies in the application and finally deal with it upon its merits.

What happened after the extension of time was granted?

7 There was compliance with the chairperson's directions and proofs of evidence from four persons dealing with the merits of the application, were prepared. The Tribunal, comprising three members, sat on 22 June 2004. At the outset, Mr McElwaine sought a preliminary ruling from the Tribunal. He made the same submission as he made on this appeal and contended that the Tribunal should not consider the merits of the application, only the issue of whether the Council was right to have refused it. Mr Brett submitted that the Tribunal was not so confined and that the Council had wide powers upon the hearing of the appeal and should therefore embark upon a hearing as to the merits of the development application.

8 At the conclusion of the submissions, the Tribunal adjourned for a few minutes. Upon the resumption of the hearing, the presiding member, Ms Imlach, said:

"Well gentlemen we have heard your submissions in relation to the question of our jurisdiction in this matter. But if you are agreeable we will reserve our decision and proceed today on the - to hear the matter on its merits."

9 It was a somewhat surprising decision because it left unclear the issues that the hearing and the evidence had to address. However, the hearing did proceed and evidence concerning the merits of the application was given and tested by cross-examination. At the conclusion of the evidence, the Tribunal adjourned upon the basis it would make a decision on the preliminary point raised by Mr McElwaine and then hear submissions on the evidence if it was necessary to do so.

10 The Tribunal published to the parties a letter dated 20 July 2004. It recited the competing submissions that had been made to it on the preliminary point and then set out the Appeal Act, s23(1), which provides:

"23 - (1) For the purpose of determining an appeal, the Appeal Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal.

"The Tribunal accepts Mr Brett's contention that there is no warrant for a distinction to be made in relation to the type of appeal or limiting the power of the Tribunal in some way upon an appeal because of what Council did. The Tribunal accepts this approach to be correct.

The Tribunal is of the opinion on the evidence before it that the Council did not exercise its power properly in refusing the permit without compliance with Section 57(1).

It is proposed by the Tribunal that it set aside the decision of the Council as notified by its letter of 10 March 2004 and remit the matter for reconsideration by the Council in accordance with any directions the Tribunal may deem necessary.

The Tribunal would be pleased to receive written submissions from Counsel within 14 days from today's date, as to whether the Tribunal should adopt this or any other course."

12 It seems to me, with respect, that the "decision" is unclear, contradictory and lacking in reasons:

(a) First, it accepts Mr Brett's submission to the effect that the Tribunal has power to deal with the application on the merits, but declines to do so, opting to send the application back to the Council.

(b) Second, it proposes to remit to the Council for reconsideration in accordance with any directions the Tribunal deems necessary, but does not specify what those directions are.

(c) It gives no reasons for the opinion that the Council did not exercise its power properly in refusing the permit without compliance with s57(3). [It was common ground that the reference in the letter to s57(1) was a typographical error and should have been a reference to s57(3).]

(d) The last paragraph makes it uncertain whether any decision at all has been made, or whether the letter is no more than an invitation to make submissions about what decision the Tribunal should make.

13 LUPA is the starting point. Relevantly it provides a scheme for planning authorities to deal with development applications. It is enacted in Pt4 of LUPA under the heading "Enforcement of Planning Controls". Section 51 forbids the commencement of any use or development which, under a planning scheme, requires a permit, unless the planning authority which administers the scheme has granted a permit for that use or development.

14 Section 57 provides for application for permits. It is a key provision in this part of LUPA. Section 57(2) specifies what the planning authority may do in the following terms:

"(2) The planning authority may, on receipt of an application for a permit to which this section applies, refuse to grant the permit and, if it does so -

(a) it does not have to comply with subsection (3); and

(c) it must, within 7 days of refusing to grant the permit, serve on the applicant notice of its decision."

15 It may be noted that s57(2) only empowers a planning authority to refuse an application. If the authority is not minded to refuse the application, subss(3) - (8) prescribe what must be done. These important provisions enable the public to have input into the planning authority decision-making process. It is only necessary to set out subss(3) - (6). It may be noted that subs(6) empowers a planning authority to grant or refuse a permit:

"(3) Unless the planning authority requires the applicant to give notice, the authority must give notice, as prescribed, of an application for a permit.

(4) A notice referred to in subsection (3) is, in addition to any other matters required to be contained in it, to name a place where a copy of the application, and of all plans and other documents submitted with the application, will be open to inspection by the public at all reasonable hours during the period for which representations may be made.

(5) Any person may make representations relating to the application during the period of 14 days commencing on the date on which notice of the application is given under subsection (3) or such further period not exceeding 14 days as the planning authority may allow.

(5A) A person may, by notice in writing to a planning authority, withdraw a representation made under subsection (5) at any time before the planning authority grants or refuses to grant a permit under subsection (6).

(5B) If a person withdraws a representation under subsection (5A), that person is taken not to have made a representation under subsection (5).

(6) Unless the planning authority has refused to grant a permit under subsection (2), it must grant or refuse to grant the permit -

(a) not earlier than the expiration of the period of 14 days, or such further period as may be allowed under subsection (5), beginning on the date on which notice of the application for a permit is given under subsection (3); and

(b) not later than the expiration of the period of 42 days from the day on which the authority received the application or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period."

16 Statutory Rule 262/1993, reg11(1), prescribes the content of the subs(3) notice in the following terms:

"11 - (1) Notice by a planning authority under section 57 (3) of the Act of an application for a permit is to -

(a) be advertised in a daily newspaper circulating generally in the area; and

(b) be displayed at the planning authority's office; and

(c) be served on the owners and occupiers of any properties adjoining the land the subject of the application; and

(d) describe the content of the development proposal and the location of the affected area; and

(e) contain a statement advising of the right of any person to make representations in accordance with section 57 (5) of the Act; and

(f) be displayed in a size not less than A4 on the land the subject of the application as near as possible to each public boundary.

17 LUPA, s61, confers a right of appeal against decisions of a planning authority, including decisions to grant permits, to refuse to grant permits, and to impose conditions on permits. Section 61(4) confers those rights of appeal upon an applicant for a permit. Significantly, s61(5) confers a right of appeal against a decision to grant a permit on any person who has made a representation to a planning authority pursuant to s57(5).

18 LUPA, s62, confers powers on the Tribunal after it has heard an appeal. Subsection (1) expresses these powers to be additional to the powers conferred on the Tribunal by the Appeal Act. I have already set out the provisions of the Appeal Act, s23(1). The additional powers conferred by LUPA, s62, relevantly include a power to direct a planning authority to grant, grant conditionally, or refuse, an application.

19 It appears from the "decision" of the Tribunal that it accepted Mr Brett's submission that it could determine the appeal on the merits because the Council could have done that and the Appeal Act, s23, gives the Tribunal the powers of the Council. In my view that reasoning is fatally flawed. The Council did not have the power to grant the permit because the prescribed public notice inviting any interested person to make a submission to the planning authority had not been given. There was non-compliance with LUPA, s57(3). The planning authority had no jurisdiction to grant the permit until:

* fourteen days or such extended period, after publication of the notice had elapsed (subs(4)); and

* the planning authority had considered any representations made to it.

20 It follows that if the Council had no power to grant the permit, the Tribunal had no power to grant the permit. Consequently, its power was limited to a determination of whether the Council's resolution to refuse the permit without proceeding in accordance with s57(3) was right or wrong. The advertisement that the chairperson directed be placed in the newspaper did not cure that defect and confer jurisdiction. It did not comply with reg11.

21 In the course of his submissions in this Court, Mr Brett accepted that the advertisement directed by the chairperson was not a prescribed notice, but argued that had that notice complied with reg11, the powers conferred by the Appeal Act, s23, were wide enough to empower the Tribunal to comply with s57(3) - (8) in lieu of the Council and determine the application on its merits. I think I should make some observations about that submission because I do not think it is correct. The powers conferred by the Appeal Act, s23, do not, in my view, extend to include the prerequisites prescribed by LUPA, s57(3) - (5). The following can be said about that construction:

* It is inconsistent with the general powers and functions of the Tribunal. The Tribunal functions after a decision has been made by a planning authority. The only decision that can be made without compliance with LUPA, s57(3) - (5) is that an application for a permit be refused. No decision can be made to grant a permit until there has been compliance with those subsections.

* It is unlikely that Parliament intended to give the Tribunal power to proceed in accordance with s57(3) for it would mean that the Tribunal proceedings would have to adjourn for the 14 days (or extended period) as provided by subs(5).

* LUPA, s57(5A), confers a right on a representor to withdraw a representation, but only by notice in writing to a planning authority.

* To construe the Appeal Act, s23, as conferring power to give the LUPA, s57(3), notice is completely inconsistent with the terms of that notice as prescribed by reg11.

* As mentioned, a right of appeal against a grant of a permit is conferred upon a person who has made a representation in accordance with LUPA, s57(5). That provision is completely inconsistent with the proposition that if the planning authority does not give notice in accordance with s57(3), the Tribunal can do so in its stead and proceed to a hearing on the merits.

22 The significance of a statutory regime such as that enacted by LUPA, s57, was referred to by the High Court in Scurr and Others v Brisbane City Council and Another [1973] HCA 39; (1973) 133 CLR 242. In that case, Stephen J said of a similar section in the City of Brisbane Town Planning Act 1964 - 1971 (Qld), s22, at 251 - 252:

"This section secures the attainment of two important goals. It provides the council with the views of those who oppose an application; written grounds of objection will be before it, supported by relevant facts and circumstances and it will thus be relieved of the special burdens associated with decision-making when only one side of the argument is known. It also provides objectors with an opportunity both to make their views known and, if their objections are unavailing, then to appeal to the Local Government Court against the proposed decision of the council."

"I have already referred to the important part played by the advertising of the making of an application and to the extent to which the working of the statutory provisions depends upon its adequacy; there can, I think, be no doubt but that it is mandatory that there must be a giving of public notice by means of advertisements and that those advertisements must contain some particulars of the application. The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the council and the section is wholly dependant upon the giving of public notice for the attainment of its objects."

23 The Council sought to enliven the jurisdiction of this Court by the reference to two statutes. The Appeal Act, s25(1) provides:

"25 - (1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal."

The Review Act, s17(1), provides:

"17 - (1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."

24 Both statutory provisions confer jurisdiction to review "a decision". I have read and reread the Tribunal's letter dated 20 July 2004, under the hand of the presiding member, and have reached the conclusion that it does not constitute a decision within the meaning of those two statutory provisions. I have set out the material parts of the letter earlier in these reasons. Paragraph 1 is no more than a statement that the Tribunal adopts a submission made to it as a correct approach. Paragraph 2 expresses an opinion which might be construed as a decision but for the final paragraph. Paragraph 3 specifies a proposal which, of course, is no more than a reference to possible future conduct. The last paragraph qualifies all preceding paragraphs and plainly seeks submission with respect to the adoption of the proposal in par3, the correctness of the opinion expressed in par2, "or any other course."

25 I conclude the Court does not have jurisdiction to entertain an appeal pursuant to the Appeal Act, s25(1), nor for an order of review of a decision pursuant to the Review Act, s17(1).

26 Upon the hearing of this appeal, Mr McElwaine sought and obtained an order amending his application under the Review Act to rely, in the alternative, on s18(1) to seek a review of the conduct of the Tribunal for the purpose of making a decision, viz, on the developer's appeal from the Council's refusal to grant a permit. Relevantly, the Review Act, s18, provides:

"18 - (1) If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies (whether by that person or by another person), a person who is aggrieved by the conduct may apply to the Court for an order of review relating to the conduct.

(2) An application may be made on any one or more of the following grounds:

(i) has been, is being, or is likely to be, committed in the course of the conduct; or

(ii) is likely to be committed in the making of the proposed decision."

27 I have come to the conclusion that the appellant Council is entitled to an order of review of the Tribunal's conduct for the purpose of making the relevant decision. The whole of the proceedings in the Tribunal appears to have been based upon a misunderstanding of its powers. Thus, I am satisfied that an error of law has been committed in the course of the relevant conduct and that there is jurisdiction to make an order of review of that conduct. Pursuant to the Review Act, s27(2), this Court has a power to declare the rights of the parties. The issue for the Tribunal was whether the appellant Council was correct in refusing to grant the application for a permit. The absence of any reasons for the Tribunal's opinion, and the absence of any findings of fact by the Tribunal, makes it impossible to make any declaratory order about that issue.

28 The only other power this Court has upon an application to review conduct is enacted in the Review Act, s27(2)(b):

"(2) On an application for an order of review relating to conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Court may make either or both of the following orders:

(b) an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties."

29 It might perhaps be said that this appeal and the application for review is premature and submissions should have been made to the Tribunal so that a final decision could be made. However, the respondent did not make any submissions to this effect upon the hearing of this appeal.

30 The Tribunal is a party to these proceedings which include, by amendment, an application for a review of conduct. It may be appropriate to make some order directing the Tribunal to do or refrain from doing something as authorised by the Review Act, s27(2)(b), but I will need to hear counsel about this before proceeding further.