TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Environment and Planning - Environmental planning - Development control - Existing uses - Operation of existing use provisions - Whether provisions apply to the use of works constructed subsequently - Whether existing use provisions create a "right" to use for the purposes of the Acts Interpretations Act 1931 (Tas), s16(1)(c).

Land Use Planning and Approvals Act 1993 (Tas), s20(3),

Acts Interpretation Act 1931 (Tas), s16(1)(c).

Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270, applied.

Judgment Number: [2006] TASSC 10

CALVARY HEALTH CARE TASMANIA INC v HOBART CITY COUNCIL

CALVARY HEALTH CARE TASMANIA INC v HOBART CITY COUNCIL

1 The appellant operates a hospital in Lenah Valley. The hospital has existed at its present site for many years. Within the hospital grounds there is a house at 20 Joynton Street. It has been used for hospital purposes since 1965. Prior to 1994, a fence covered with jasmine extended across the house block behind the house and on the other side of the fence there was a car park with a sealed surface. The nearest point of the car park to the back wall of the house was a distance of about five metres. Between 12 February 1994 and 11 March 1995 the fence and jasmine were removed by the appellant and the car park was extended to a line about one metre from the back wall of the house, effectively occupying much of what had previously been used as the "backyard" of 20 Joynton Street. Six parking spaces were marked out on the extended portion of the car park and thereafter they were used as part of the car park. No permit for the development or extended use of the car park was sought from the respondent, which was the local council.

2 The respondent took the view that the extension of the car park and use of the six parking spaces contravened the City of Hobart Planning Scheme 1982 ("the planning scheme"). It applied to the Resource Management and Planning Appeal Tribunal ("the Tribunal") under the Land Use Planning and Approvals Act 1993 ("LUPA"), s64, for an order restraining the appellant from using the six parking spaces for car parking. On 1 November 2004, the Tribunal made a finding that the use of the six parking spaces for car parking was contrary to the provisions of the planning scheme. On 17 February 2005, the Tribunal made orders restraining the appellant from using the two parking spaces that were nearest to the house of Mr and Mrs Davies at 20 Joynton Street and requiring the appellant to erect and maintain a barrier precluding access to those two parking spaces and the area between them and the Davies' boundary. An appeal by the appellant to a judge failed and this appeal was brought.

3 The major issue concerns existing use provisions in the Local Government Act 1962 ("the 1962 Act"), s759 and its replacement, LUPA, s20(3). It is the appellant's case that at the time of both enactments the land in question was being used for the purposes of the hospital and that because of either or both of those sections, the continued use of the land for the purposes of the hospital was permitted. It was submitted that for that reason the respondent's planning scheme did not apply to the use of the land for car parking for the purposes of the hospital and that the respondent's permission for the specific use of car parking was not required.

4 I will return in due course to the existing use provisions of the legislation. I refer next to the provisions of LUPA pursuant to which the Tribunal made its orders and to the provisions of the planning scheme. Section 63(2)(a) provided that "a person must not use land in a way, or undertake development or do any other act, that ... is contrary to a State Policy, a planning scheme or special planning order". The subsection referred to both the use of land and the undertaking of development. For the purposes of LUPA, unless the contrary intention appeared, s3(1) gave "development" and "use" different meanings:

(a) the construction, exterior alteration or exterior decoration of a building; and

(b) the demolition or removal of a building or works; and

(c) the construction or carrying out of works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings -

but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f), prescribed by the regulations for the purposes of this definition;

'use', in relation to land, includes the manner of utilising land but does not include the undertaking of development."

5 The respondent's application to the Tribunal was for civil enforcement proceedings under s64, the material provisions of which were:

"(1) Where a person contravenes or fails to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.

(ii) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings -

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed to comply with a provision of this Part; or

(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard -

(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and

(d) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and

(e) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.

(16) Proceedings under this section may be commenced at any time within 12 months after the date of the alleged contravention of, or failure to comply with, a provision of this Part."

6 Because the extension of the car park took place in 1994 or 1995, s64(16) prevented the respondent from basing its application on the work, that is to say, the development, that was carried out at that time. Instead it contended that the appellant, by continuing to use the six new parking spaces, was using land in a way that was contrary to the planning scheme, or doing acts that were contrary to the planning scheme, with the meaning of s63(2)(a).

7 Under the planning scheme the whole of the hospital grounds, including 20 Joynton Street, were zoned "Special Use 7". Table A1 of the scheme specified in relation to land so zoned that uses of the land falling within "Use Group VI" were permitted, and Table A2 specified within that use group "the development of land for a hospital, a welfare institution".

8 It was provided by the planning scheme, cl 1.5.1, that no person shall carry out any development within the planning area without first obtaining the written approval of the respondent issued in accordance with the administrative provisions of Pt 2 of the scheme. Clause 2.1.1, which was contained in Pt 2, required any person "wishing to undertake a development (including use)" to lodge an application in a prescribed form. Clause 2.3.2 required the respondent, before granting or refusing approval for any development or imposing conditions in respect of any development, to have regard to various things, including "the Desired Future Character of the Precinct in which the development is situated".

9 The land, on which the six car parking spaces are situated, fell within the Calvary Hospital Precinct for which the desired future character was stated by cl 5.22.1 to include:

"The Precinct should continue to function primarily as a general hospital with associated health services. Further development of the hospital and its associated uses shall only occur in accordance with the 'Calvary Hospital Master Plan', Number MP2 as finally approved by the Commissioner for Town and Country Planning on 13th November 1992 ... Accepting the ability to develop in accordance with and subject to the restrictions of the 'Calvary Hospital Master Plan', any development shall ensure that the amenity of adjacent residential areas is maintained."

10 The provisions of the planning scheme relating to the Calvary Hospital Master Plan Number MP2 ("the master plan") were inserted by an amendment that took effect on 13 November 1992 upon the amendment being approved by the Commissioner for Town and Country Planning pursuant to the 1962 Act. At that time any existing use "rights" existed by virtue of the 1962 Act, s759(1), and not by virtue of LUPA, s20(3) - (6), which did not commence to operate until 1 January 1994.

11 In its first decision, the Tribunal noted that the six parking spaces were about a metre from the house and that the master plan provided for a setback approximately five metres from the house. It concluded therefore, that the planning scheme prohibited the location and use of the six parking spaces. It then went on to consider whether the appellant had existing use rights pursuant to LUPA, s20. It accepted that the proper description of the "use" of 20 Joynton Street was as part of the hospital, and that parking on the hospital site should be considered as part of the hospital use, rather than as a different use. It also accepted that the hospital use had continued since a time prior to the 1992 amendment to the planning scheme that adopted the master plan. It took the view that the existing use rights of LUPA, s20(3)(a) arose when a planning scheme purported to prevent the continuance of an existing use and that the master plan did not purport to do that. Instead it "regulates the developments and activities which may occur as and in connection with" the hospital use, the Tribunal said. It rejected an argument that the area of land had been held in reserve for use as a car park in the future, holding that there was insufficient evidence of that.

12 It is common ground that at all material times, for the purpose of the planning scheme and the relevant legislation, the "use" of the whole hospital site, including the land in question, was as a hospital, and that parking was not a separate use, but an activity incidental to the hospital use. The appellant's contention is that it acquired relevant existing use rights pursuant to the 1962 Act, s759(1), and that it had those existing use rights when the reference to the master plan was inserted in the planning scheme by the amendment that was approved on 13 November 1992. The appellant's further contention is that it continues to have existing use rights by virtue of s759(1) or, alternatively LUPA, s20(3) - (6), once it took effect on 1 January 1994.

13 The 1962 Act, s759(1), provided that "no planning scheme, master plan, or interim order under this Part affects (a) the continuance of a lawful use of land; or (b) the maintenance and repair of a lawfully erected building or structure, existing when the scheme, plan, or order takes effect". LUPA, s20(3) - (6) provides:

"(3) Subject to subsections (4), (5) and (6), nothing in any planning scheme is to -

(a) prevent the continuance of the use of any land, upon which buildings or works are not erected, for the purposes for which it was being lawfully used before the coming into operation of the scheme; or

(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation, or the maintenance or repair of such a building; or

(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or

(d) prevent the use of any building or works for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or

(e) require the removal or alteration of any lawfully constructed buildings or works; or

(f) prevent a development, which was lawfully commenced but not completed before the coming into operation of the scheme, from being completed within -

(ii) any lesser or greater period specified in respect of the completion of that development under the terms of a permit granted before the coming into operation of the scheme.

(4) Subsection (3) does not apply to a use of land -

(a) which has stopped for a continuous period of 2 years; or

(b) which has stopped for 2 or more periods which together total 2 years in any period of 3 years; or

(c) in the case of a use which is seasonal in nature, if the use does not take place for 2 years in succession.

(5) Subsection (3) does not apply to the extension or transfer from one part of a parcel of land to another of a use previously confined to the first-mentioned part of that parcel of land.

(6) Subsection (3) does not apply where a use of any land, building or work is substantially intensified."

14 On the first appeal, the learned judge thought it was clear that by virtue of both s759(1) and s20(3)(a), none of the provisions inserted into the planning scheme by the 1992 amendment could prevent the continuance of the hospital use of the land to which the appeal relates, because the land was being lawfully used for hospital purposes before that amendment. The appellant contended that it followed that nothing in the amended planning scheme could operate so as to regulate its use of the land for hospital purposes. On the other hand, the respondent and Mr and Mrs Davies contended that s20(3)(a) did not operate so as to prevent the planning scheme from regulating the use of the relevant land for hospital purposes, and that the second sentence of cl 5.22.1 of the planning scheme validly and effectively prohibited further "development of the hospital and its associated uses" otherwise than in accordance with the master plan.

15 The learned judge referred to two cases which stressed the difference between "use" and "development", a difference which is made clear for the purposes of LUPA by s3(1). Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448 concerned the Town and Country Planning Act 1961 (Vic), s17(1D), which provided that nothing in any interim development order "shall prevent the continuance of the use of any land for the purposes of which it was being lawfully used immediately before the coming into operation of the order". The High Court emphasised the difference between continuing a use and carrying out a development and held that a proposal to subdivide into rural residential lots part of land that that been lawfully used for rural purposes before the order came into operation, was validly prohibited by the order, because the continuing use section protected only the continuation of a lawful use and not a development of the land by subdivision and sale. The other case was Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council [2001] VSC 302; (2001) 117 LGERA 43, which concerned the Planning and Environment Act 1987 (Vic), s6(3)(a), a provision in almost identical terms to LUPA, s20(3)(a). A landowner, who had existing use rights for six single-storey units, wished to demolish and replace the units with six double-storey detached buildings. Balmford J drew the distinction between "use" and "development" and held that what was proposed was a development and was not protected by the existing use provisions of s6(3)(a).

16 The learned judge determined the existing use aspect of the first appeal adversely to the appellant. The grounds of the appeal attack his Honour's conclusions which were:

"24 If Calvary's contentions as to the scope of its existing use rights are correct, a planning scheme may contain provisions that validly and effectively regulate or prohibit development for the purpose of a use consistent with the scheme, but cannot in any respect validly or effectively provide for the regulation or restriction of development for the purpose of a lawful existing use that does not conform with the scheme. That result would be absurd. Parliament surely cannot have intended it. The ordinary literal meaning of the words "prevent the continuance of the use of any land" in s20(3)(a) relates to prevention of the use, rather than regulation of the use. The LUPA Act draws a distinction between use and development. In my view, it follows from all of this that s20(3)(a) has nothing to do with development.

25 In my view any provisions of the planning scheme or the master plan that regulate the continuance of the hospital use of the relevant land, or development for the purpose of that use, are valid and effective despite the provisions of s20(3)(a)."

"42 The provisions of the master plan do not prohibit any activity that was being engaged in for hospital purposes prior to the 1992 amendments. They regulate and limit development, and the carrying on of pre-existing activities in areas of the hospital grounds where they have not previously been carried on. The Tribunal was perfectly right to hold that the master plan regulates developments and activities, rather than purporting to prevent, cut down or restrict the hospital use."

18 His Honour held that the Tribunal had been correct when it held that the use of the six parking spaces in 2004 was contrary to the provisions of the planning scheme.

19 I will return later to the question whether LUPA, s20(3), has any application at all in the circumstances of this case or whether instead the appellant's rights are governed by the 1962 Act, s759. I will first consider what s20(3) means.

20 By par(a) it is prescribed that nothing in a planning scheme is to prevent the continuance of the use of any land, upon which buildings or works are not erected, for the purposes for which it was being lawfully used before the coming into operation of the scheme. The paragraph does not apply to land upon which buildings or works have been erected or constructed. Provisions in those regards are made by pars(b) and (c). By par(b), nothing in a planning scheme is to prevent the continuance of the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation, or the maintenance or repair of such a building. The paragraph only applies to the use of a pre-existing building and not to mere land or works. The meaning of "building" is in s3(1) and is unremarkable, except that it includes a fence. By par(c), nothing in a planning scheme is to prevent the continuance of the use of any works which were constructed before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation. The paragraph only applies to the use of pre-existing works and not to mere land or buildings. The meaning of "works", by s3(1), includes any change to the natural or existing condition or topography of land including (inter alia) the removal of vegetation or top soil. On a particular piece of land there may be a building or buildings and some works and there may also be bare land, that is to say land on which no building has been erected and no works have been constructed. If so, then all of pars(a), (b) and (c) might apply to the piece of land in question, although individually each paragraph would only apply to a part of it. Paragraph (d) protects the use of any building or works for any purpose for which the building was being lawfully erected or for which the works were being lawfully carried out immediately before that coming into operation. Section 20(3) also makes it clear that developments (which by s3(1) include a building and works) have no protection from the application of a planning scheme that relates to them except, as provided by par(f), developments lawfully commenced but not completed before the coming into operation of the planning scheme, provided they are completed within a limited period of time.

21 With those exceptions, the use of land, whether it consists of bare land or has a building or works upon it, is provided with no relevant protection from the application of a planning scheme that relates to it.

22 When the appellant demolished the fence, removed the hedge and extended the sealed car park after the commencement of both the planning scheme and LUPA, it had no protection from s20(3) for its use of the works it constructed at that time. Neither the scheme or LUPA permitted the construction of the works or the subsequent use of the extended car park, certainly not without a permit first having been obtained under the scheme. Although s64 proceedings relating to the development could not be commenced once 12 months after the carrying out of the development had elapsed, because of s64(16), such proceedings could still be commenced, at all relevant times, in relation to the use of the development which had been continuing without the protection of s20(3).

What relevant existing use rights did the appellant have before LUPA?

23 The Tribunal found that 20 Joynton Street was purchased in 1965 for use by the hospital and it was so used from the time of its purchase up to the commencement of LUPA on 1 January 1994 and thereafter. At the time of the commencement of the relevant provisions of the planning scheme, including MP2, on 13 November 1992, the property was being used for the hospital as an office, consulting rooms and dwelling for a hospital employee, Dr Schreuder. In its reasons published on 1 November 2004, the Tribunal said: "It was not contended for Council, and (sic) nor was there any evidence to suggest, that the use of 20 Joynton Street for the purposes of the hospital was in any way unlawful." It may be inferred that the Tribunal determined that the use was lawful immediately before the planning scheme commenced to operate on 13 November 1992. On that date the existing use provisions of the 1962 Act, s759(1), were in operation.

24 It is the appellant's case that by virtue of s759(1), it had the right to continue to use the subject land for the purposes of its hospital, unaffected by the planning scheme once it commenced to operate on 13 November 1992, and it still had that right at the time LUPA commenced to operate and impliedly repealed s759(1). The 1962 Act was not expressly repealed when LUPA commenced on 1 January 1994. The express repeal of all of the 1962 Act, including s759, was effected 16 days later by the Local Government Act 1993, s350 and Sch9, when that Act commenced to operate on 17 January 1994.

25 For the respondent and Mr and Mrs Davies it was argued that the appellant's existing use rights have at all material times since the enactment of LUPA been governed by s20(3), and that the 1962 Act, s759(1), ceased to operate in relation to those rights either with the implied repeal of s759(1) by LUPA or its express repeal a few days later.

26 To that argument the appellant countered that, by its terms, s20 purports only to regulate what can be provided in a planning scheme prepared after the commencement of LUPA and it has no application to a prior scheme, such as the planning scheme involved here. However, s20 should not be so confined because of the provisions of LUPA, s87A and Sch4 cl 5(a) and (i) (originally contained in the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 Sch1 cl 2 but subsequently imported into LUPA pursuant to the Legislation Publication Act 1996, s30). They provide that a prior scheme continues in force as if it was a planning scheme made under LUPA and a scheme finally approved by the Commissioner for Town and Country Planning under the 1962 Act, s730, is taken to be a planning scheme finally approved under LUPA, s29. It follows that LUPA, s20(3), applies equally to prior schemes and to future schemes made under it.

27 It was further argued for the appellant that the Acts Interpretation Act 1931, s16(1)(c), required that s20(3) should not be given a retrospective operation so as to affect an existing right or privilege. Section 16(1)(c) provides that "where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not ... affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed". It was submitted for the appellant that at the time LUPA commenced to operate on 1 January 1994, the appellant had acquired or accrued a right under the 1962 Act, s759(1), to continue its lawful use of the subject land for the purposes of the hospital and that because the contrary was not expressly provided, the implied or express repeal of s759(1) did not affect that right.

28 A similar argument was rejected by three of the five judges in Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270. Stephen J, with whom McTiernan J at 276 and Walsh J at 277 agreed, held at 293 - 294 that the consent under a planning scheme of a municipal council to the use of land for a particular purpose, so as to make that use lawful, did not confer rights or privileges in the sense words similar to those in s16(1)(c) were used. The similar words there being considered were in cl 65(1)(b) of a planning scheme called the Warringah Scheme Ordinance, which provided that the revocation, pursuant to statute, of a prior planning scheme, pursuant to which a particular use of land had been lawful, "shall not affect ... any right, privilege, obligation or liability acquired, accrued or incurred under that Scheme or under the Act in relation to that Scheme". This Court should apply the view of Stephen J. Prior to the day on which the planning scheme commenced, the appellant's lawful use of the land was not pursuant to any right or privilege, as those words are used in s16(1)(c). Counsel for the appellant sought to distinguish Eaton upon the basis that the appellant's right to continue to use the land exists by virtue of the 1962 Act, s759(1), and not by virtue of a planning scheme, but there is no merit in that argument. The question that is raised is whether the appellant had a "right" or "privilege" as those words are used in s16(1)(c) and for the reasons given by Stephen J, it did not. Section 759(1) did not purport to create any right or privilege for the appellant, but merely prescribed that the lawful use of land in the past could continue unaffected by a later scheme. It is to the nature of that prior lawful use, and whether the appellant had a "right" to it, that is to be considered for the purposes of s16(1)(c).

29 Reference was also made by counsel to Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, in which the facts and circumstances were completely different than here and in which the prior legislation that was held to create a right which was protected by provisions similar to s16(1)(c), expressly gave to the child of a deceased lessee "the like right to continue in possession" (my italics) as the deceased would have had. Section 759(1) cannot be likened to that provision.

30 I would hold that Parliament has made it clear that LUPA, s20(3) - (6) governs the continuance of prior lawful uses of land, buildings and works to the exclusion of the 1962 Act, s759(1).

31 Although it does not affect the outcome of the appeal, I have concluded that the learned judge fell into error when he held that "the ordinary literal meaning of the words 'prevent the continuance of the use of any land' in s20(3)(a) relates to prevention of the use, rather than regulation of the use", and that "any provisions of the planning scheme or the master plan that regulate the continuance of the hospital use of the relevant land, or development for the purpose of that use, are valid and effective despite the provisions of s20(3)(a)". While they were largely correct statements so far as future developments are concerned, they were too sweeping with regard to the continuance of uses that immediately before the coming into operation of a planning scheme were lawful. If all the occupier of land does is continue a previous lawful use without any development in the form of buildings or works, s20(3) makes it clear that the continuance cannot be prevented by the planning scheme. To use a planning scheme to prevent a use in the guise of regulation would be a breach of the protection of s20(3). Nevertheless, once some development is proposed or undertaken, the development and its subsequent use are subject to the planning scheme that is in operation at the time.

32 The Tribunal was entitled to conclude that the use of the six parking spaces in question, following the construction of the necessary works leading to their creation, was in breach of MP2. The order of the Tribunal restraining the appellant from using two of the parking spaces was within power.

CALVARY HEALTH CARE TASMANIA INC v HOBART CITY COUNCIL

34 I have had the advantage of reading in draft form the reasons for judgment by the learned President. I agree with his reasoning and conclusion and, likewise, I would dismiss the appeal.

CALVARY HEALTH CARE TASMANIA INC v HOBART CITY COUNCIL

35 I agree with the reasons of Crawford J and would dismiss the appeal.