17A Victoria Esplanade, Bellerive - Starting Box - Notification - Consent of Owner - Ss.52 & 57 LUPAA 1993 - Jurisdiction

Clarence City Council & Bellerive Yacht Club Inc Respondents

This was a determination of whether the Tribunal has jurisdiction, having regard to the requirements of Sections 52 and 57 of the Land Use Planning Approvals Act 1993. The issues were the subject of representations made and responded to in writing without a hearing.

1. Each of these appeals relates to a conditional permit granted by Council for a starting box at 17A Victoria Esplanade, Bellerive for yacht races and events. It was contended for the Appellant that the Tribunal had no jurisdiction. The basis of that contention was that the Council did not have before it a valid application, and further that Council did not comply with the requirements of Section 57 of the Land Use Planning Approvals Act 1993, by failing to validly notify the application to the public.

2. The relevant provisions of the above Act are as follows:-

"52 (1) If the applicant for a permit is not the owner of the land in respect of which the permit is required and a planning scheme or a special planning order does not provide otherwise, an application is to -

(b) be accompanied by the written permission of the owner to the making of the application.

3. Section 57 of the above Act applies to applications for permits in respect of the use or development which are "discretionary". With respect to notification it relevantly provides:

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

(4) A notice referred to in sub section (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 within a period of 14 days commencing on the date on which notice of the application is given under sub section (3) or such further period not exceeding 14 days as the planning authority may allow."

4. The Land Use Planning and Approvals Regulations 1993 No. 262 provide in respect notices of application for a permit, as follows:

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

(a) is to be advertised in a daily newspaper circulating generally in the areas; and

(b) be displayed at the planning authorities office; and

(c) be served on the owners and occupiers of any property 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 that makes representations in accordance with Section 57(5) of the Act; and

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

5. With respect to the requirements of Section 52 of the Act, the following facts were not contested.

(a) The application applied to land owned by the Crown in the right of the state of Tasmania.

(b) The application form stated the owner of the land to be "Bellerive Yacht Club".

The space provided in the application form for the owner of the land to endorse his consent was signed by Mr J A Smith, Commodore of the Bellerive Yacht Club Inc. Neither Mr Smith nor the Bellerive Yacht Club Inc. were the owners of the land the subject of the application. The above application was lodged with Council on the 12th or 13th August 1999.

(c) By letter dated the 20th August 1999 from the Clarence City Council to the Bellerive Yacht Club Inc., additional information with respect to the application was requested, including "written consent of the owner for this development application".

(d) By letter dated the 14th October 1999 the Bellerive Yacht Club Inc. wrote to Clarence City Council quoting part of the letter also dated 14th October 1999 from the Department of Primary Industries Water and Environment. A copy of the Department's letter was forwarded to Clarence City Council by the Department by letter dated 18th October 1999 and received by the Clarence City Council on the 19th October 1999. The latter document was the first document provided to the Clarence City Council signed on behalf of the Crown as owner of the land.

The Tribunal finds according to the above uncontested facts.

6. It was contended for Council that the owner was aware of and consented to the application, and was in no way disadvantaged by the consideration of the application. That matter was not the subject of evidence, however it is assumed in favour of Council, in the following consideration.

7. It was also contended for Council that there had been no attempt to deceive any representor and no representor had been disadvantaged by the timing and method of the owners consent; this also is assumed in favour of the Council, for the purposes of the following considerations.

8. Having regard to the above facts, it is clear that the development application in its form on the 12th or 13th August 1999 when it was lodged with Council, was neither signed by the owner of the land nor accompanied by the written consent of the owner of the land, to the making of the application. The development application in its form on the 12th or 13th August 1999 when lodged with Council, failed to comply with Section 52 (1) of the Act. It was not therefore a valid application.

9. Council tendered copies of the letter from the Bellerive Yacht Club Inc. dated the 14th October 1999, and of the letters from the Department of Primary Industries Water and Environment dated the 14th October 1999 to the Bellerive Yacht Club Inc., and dated 18th October 1999 to Council. The latter letter was according to the agreed facts received on the 19th October 1999. Those letters, taken together with the original document lodged on the 12th or 13th August 1999, completed the development application, which was then "made" at the date on which it was complete and therefore valid.

10. That the development application was not complete until Council received the letter of the 14th October 1999 and that of the 18th October 1999, is consistent with the facts that Council sought material from the applicant necessary to complete the development application. There is no reason why an application may not consist of more than one document. Commonly applications subsist of several, including a form of application, and plans. Again, there is no reason why all of the documents to constitute the application should necessarily be lodged at the same time. It is consistent with Council having a complete application, that the documents may be lodged at different times, the application not being complete until all have been lodged. Similarly, with any documents required to accompany the application, the application is not complete until the documents required to accompany it have also been lodged.

11. The above analysis would facilitate resolution of planning application and issues, rather than delaying their resolution. To find otherwise would require an applicant to commence his application, by, either withdrawing the documents from Council and lodging them all at once, or alternately by lodging a fresh set of all documents, so the each "accompanied" the other. That would be to impose a pointless formality in the planning process.

12. Accordingly, the Tribunal finds that after the 19th October 1999 the application satisfied the requirements of Section 52(1) of the above Act, and that after 19th October 1999 there was a valid application before Council.

13. It was also contended for S & A Palmer, that the application had not been properly notified pursuant to Section 57 of the above Act.

14. The only newspaper advertisement was published on the 16th October 1999. Section 57 of the Act refers to notice of "an application", which must mean a complete and valid application. Regulation 11(a) above was therefore not complied with. The only newspaper advertisement refers to an opportunity to inspect the application documents from the 16th October 1999 but there was no valid application with Council on the 16th October 1999. The advertisement was therefore misleading.

15. Letters notifying neighboring property owners referred to a period for representations for "14 days until the 6th September 1999", which latter date had already passed. Although the letter later stated that the period for representations was 14 days commencing on the date of the letter, the letter was ambiguous and unclear and therefore did not constitute a valid notice.

16. The Tribunal therefore finds that the application was not properly notified in the above respects, in that Section 57 and the above regulations were not complied with. There was therefore no valid decision capable of being made by Council, and the purported decision of 29th November 1999 was invalid. It follows that the notices of appeal lodged in matters 317/99P, 318/99 P, 321/99P, and 322/99P, are invalid, there being no right of appeal given by the Act, against an invalid decision by Council.