APPEALED FROM: J Champion v Dorset Council [2014] TASRMPAT 013

Environment and Planning - Environmental planning - Development control - Consents, approvals and permits - Validity - Other matters - Whether council deemed to have made decision to grant a permit - Non-compliance with notice requirement - Failure of council to make decision.

Land Use Planning and Approvals Act 1993 (Tas), s59(1).

Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355, referred to.

Environment and Planning - Courts and tribunals with environment jurisdiction - Tasmania - Supreme Court - Right of appeal from decision of Resource Management and Planning Appeal Tribunal - Tribunal without jurisdiction.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s25(1).

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338, followed.

Judgment Number: [2014] TASSC 34

1. This is a case about a shed in Ringarooma. On 13 December last a man named Joshua Champion applied to the Dorset Council for a permit under s57 of the Land Use Planning and Approvals Act 1993 ("the Act") for the shed to be used for what he called "a Service Industry Use (motor vehicle/machine repair)". The council published the usual form of advertisement in The Examiner on 21 December, and gave written notice of the application to the owners and occupiers of adjoining properties. The notices specified the closing date for representations about the proposal as 4 January 2014. The author of the notices had made a mistake. The council's offices were about to close for the Christmas and New Year period. They were closed from 2pm on Tuesday, 24 December until 8.30am on Monday, 6 January. That mistake has resulted in months of confusion.
2. When someone applies for a permit under s57, and the application is publicised by means of an advertisement and notices, members of the public are meant to have a period of at least 14 days during which they may inspect the application and related plans, and make representations to the council. Section 57 of the Act contains the following relevant subsections:

"(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."

1. The contents of the advertisement and notices are prescribed by reg8 of the Land Use Planning and Approvals Regulations 2004. That regulation reads as follows:

"(1) For the purposes of section 57(3) of the Act, notice by a planning authority of an application for a permit is to be -

(a) advertised in a daily newspaper circulating generally in the area relevant to the application; and

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

(c) given to the owners and occupiers of all properties adjoining the land that is the subject of the application; and

(d) displayed on the land that is the subject of the application -

(ii) as near as possible to each public boundary.

(2) Subregulations (1)(c) and (d) are taken to have been complied with if notice has been served under section 14 of the Major Infrastructure Development Approvals Act 1999 on each owner of land within a proposed corridor as if the land within the proposed corridor were land that was the subject of an application for a permit referred to in section 57 of the Act.

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

(b) advise that representations may be made in accordance with section 57(5) of the Act, together with details of where and when representations can be lodged; and

(c) include any other details determined by the planning authority."

1. When a council's offices are closed, during a holiday period or otherwise, the 14-day period fixed by s57(5) is automatically extended by s57(5AA). That subsection reads as follows:

"(5AA) If the time period specified in subsection (5) includes any days on which the office of the planning authority is closed during normal business hours in that part of the State where the land subject to the application for a permit is situated, that period is to be extended by the number of those days."

1. The date in the council's notices should not have been 4 January. Because of s57(5AA), it had to be a later date to allow for the closure period. And the council could have allowed a further period of up to 14 days pursuant to s57(5).
2. At a council meeting on 17 February, a vote was taken on a motion to approve the granting of the permit sought by Mr Champion. The motion was lost. However it seems that the council did not resolve to refuse the application. It did not make a decision either to grant it or to refuse it.
3. Under s57(6) of the Act, when there is an application for a permit, a council has a duty either to grant it or refuse it, and time limits apply. That subsection reads as follows:

"(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

(i) in a case where the Heritage Council has not, under section 39(3) of the Historic Cultural Heritage Act 1995, required extra time to consider the application, on the expiration of the period of 42 days from the day on which the planning authority received the application or such further period as is agreed, in writing, by the planning authority and the applicant before the expiration of that 42-day period; or

(ii) in a case where the Heritage Council has, under section 39(3) of the Historic Cultural Heritage Act 1995, required extra time to consider the application, on the expiration of the period of 56 days from the day on which the planning authority received the application or such further period as is agreed, in writing, by the planning authority and the applicant before the expiration of that 56-day period."

1. If a council neither refuses nor grants a permit within the required time, s59(1) deems the council to have decided to grant a permit, on conditions to be determined by the Resource Management and Planning Appeal Tribunal ("the Tribunal"). That subsection reads as follows:

"(1) The failure of a planning authority to determine an application for a permit to which section 57 or 58 applies before the expiration of the period, or, where applicable, the further period, referred to in section 57(6)(b)(i) or (ii) or 58(2) is deemed to constitute a decision to grant a permit on conditions to be determined by the Appeal Tribunal."

1. Under s59(3), if a planning authority has failed to determine an application before the expiration of the relevant period, the applicant may apply to the Tribunal for an order determining the conditions on which the permit is granted. On 20 March the Tribunal received a "notice of appeal" from Mr Champion's solicitor, seeking "an order determining the conditions on which the permit is granted, pursuant to section 59(3)".
2. A couple who were opposed to Mr Champion obtaining a permit, Mr and Mrs Shaw, applied to be joined as parties to the proceedings before the Tribunal. On 24 March the Tribunal ordered that they be joined.
3. In the proceedings before the Tribunal, the council contended that the Tribunal had no jurisdiction. It conceded that the notices sent to the owners of adjoining land had been defective. It contended that, as a result, s59(3) did not apply, there was no deemed decision to grant a permit, and the Tribunal had no jurisdiction to do anything. The Tribunal received written submissions from all parties. On 16 April the Tribunal, constituted by its chairman, Mr Geason, delivered a decision holding that it had jurisdiction, and ordering that the matter be remitted to the council to be re-advertised and determined in accordance with the Act: J Champion v Dorset Council [2014] TASRMPAT 013.
4. This is an appeal from that decision. The Tribunal, Mr Champion, and Mr and Mrs Shaw all filed notices of submission, submitting to any order that the Court may make. None of them were represented at the hearing. Only the council was represented.
5. The Tribunal's reasons for ordering that the matter be remitted to the council to be re-advertised and determined in accordance with the Act can be summarised as follows:
   • Section 57(3) of the Act had not been complied with. That was because the notices to the owners and occupiers of adjoining properties did not properly state when representations could be lodged. Because of that irregularity, the council had not given notice, as prescribed, of the application for a permit.
   • The application made to the council was a valid application.
   • For the purposes of s57(6)(b), time began to run when the council received that application. That is to say, after the council received that application on 13 December, it had 42 days within which to grant or refuse a permit. It did neither.
   • Under s57(6)(a), a council is required to grant or refuse a permit no earlier than the expiration of 14 days after notice of the application is given under s57(3). Since notice was not given in accordance with s57(3), that time period had not commenced to run, and the council was prohibited from granting or refusing the permit.
   • However it did not follow that the operation of s59 was delayed. Once the 42-day period fixed by s57(6)(b) expired without the permit being granted or refused, s59 became applicable.
   • Such an interpretation of the relevant provisions ensures that the conduct of councils was supervised.
   • Because the council had failed to comply with its notification obligation under s57(3), the council's "decision" was invalid, and the Tribunal had no jurisdiction "to entertain the merits appeal".
6. On the basis of that reasoning, the Tribunal said, at [26] of its reasons:

"In the circumstances the Tribunal orders that this matter be remitted to the Council to be readvertised and determined in accordance with the Act."

1. Counsel for the council submitted to me that, on a proper interpretation of the relevant statutory provisions, s59(1) and (3) did not apply to an application that had not been advertised and notified in accordance with s57(3). I agree.
2. When the notification requirements of s57(3) are not complied with in a timely manner, there is an inconsistency between pars(a) and (b) of s57(6) if both are read literally. In the situation that arose in this case, read literally, s57(6)(a) required the council not to make a decision, whereas s57(6)(b) required the council to make one. In order to avoid that inconsistency, it is necessary to determine which paragraph should prevail. The Tribunal's decision was consistent with par(b) prevailing.
3. In order to determine which paragraph should prevail, it is appropriate to consider the two provisions in their statutory context. It can readily be seen that the Act requires public notification of every permit application, requires public access to the application and related documents, permits any member of the public to make a representation to the relevant planning authority, and permits any person who has made such a representation to appeal to the Tribunal: ss57(3), (4), (5), 61(5).
4. The significance of such a statutory regime was made clear by Stephen J in Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 when his Honour said, at 251 - 252, referring to a similar section in a Queensland statute:

"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 ... 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 [sic] upon the giving of public notice for the attainment of its objects."

1. It is true that s57(3) was enacted in 1993, before the commencement of s10A of the Acts Interpretation Act 1931. When a provision enacted after the commencement of that section uses the word "must", that word must be construed as being mandatory. When the word "must" is used in an earlier provision, it may or may not be appropriate to construe it as being mandatory.
2. When a statutory provision regulating the exercise of a statutory power is not complied with, and a question arises as to the validity or invalidity of a purported exercise of that statutory power, it is necessary to determine "whether there can be discerned a legislative purpose to invalidate any act" done in the purported exercise of the statutory power: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [91]. This case does not concern the validity or invalidity of an exercise of the statutory power to grant a permit, but it involves a similar question as to the applicability or inapplicability of the provision in s59(1) deeming the council to have decided to grant a permit. The Act does not address the situation that arose in this case. However I think it is clear, particularly in the light of Scurr, that s57(3) is a mandatory provision and that any decision to grant a permit is invalid if s57(3) is not complied with.
3. It must follow that, when the notification requirements of s57(3) have not been complied with, s57(6)(a) prevails over s57(6)(b); that s59(1) does not then operate so as to deem a council to have decided to grant a permit; and that no application may then be made under s59(3). That is to say, Mr Champion was not entitled to apply to the Tribunal for "an order determining the conditions on which the permit is granted". It follows that his application to the Tribunal was not a valid application, and that the Tribunal had no jurisdiction. In particular, it had no jurisdiction to remit the matter to the council.
4. If s57(6)(b) prevailed, and s59(1) operated to deem the council to have decided to grant a permit, the consequences would be quite strange. The applicant for the permit would be entitled to make an application to the Tribunal under s59(3) for an order determining the permit conditions. On its face, s59(4) would give the Tribunal a discretion either to grant the permit unconditionally, to grant it with conditions, or to direct that a permit must not be granted. But the granting of a permit, with or without conditions, would be contrary to the scheme of the Act. And a direction that a permit must not be granted could be most unfair to the applicant. If the matter were remitted to the council, which could perhaps be done under s23(2)(c)(ii) of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), the council would again face the problem that it had not made a decision within 42 days of receiving the application, as required by s57(6)(b). There would be no way out of the maze.
5. Section 59(6) of the Act provides that, for the purposes of the RMPAT Act, an application under s59 is deemed to be an appeal. Section 25(1) of that Act provides that any party to "an appeal" before the Tribunal may appeal to this Court, on a question of law, from any "decision" of the Tribunal in the appeal. In my view, s25(1) should be interpreted as conferring a right of appeal from "decisions" made by the Tribunal when it had no jurisdiction. Such an interpretation would promote the purposes or objects of the RMPAT Act and be consistent with the decision of the Full Court of the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338. It must follow that s25(1) also permits a party to appeal from a decision of the Tribunal made in reliance on s59 of the Act when it in fact had no jurisdiction.
6. For these reasons, I have decided to allow the appeal, set aside the orders of the Tribunal, and, in substitution for that decision, make a decision that Mr Champion's s59(3) application be dismissed for want of jurisdiction.
7. It must follow that the council has before it a s57 application that has not been publicised as required by s57(3). Mr and Mrs Shaw contended before the Tribunal that, for a number of reasons, it was not a valid s57 application. The Tribunal did not address their arguments. The council's grounds of appeal included one contending that the Tribunal thereby erred in law, but I have not needed to address that ground. If the council were to seek to comply with s57(3) now, it would be unable to comply with s57(6)(b). In the circumstances, if Mr Champion still wants the shed to be used as proposed last December, a fresh s57 application might be desirable. That, of course, is a matter for him.