Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s27.

Shire of Sherbrooke v F L Byrne Pty Ltd [1987] VicRp 29; [1987] VR 353, referred to.

Pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s27 and upon the request of the parties, the Appeal Tribunal has referred to this Court the following questions of law for decision:

"1 Is clause 7.7 of the Municipality of Kingborough Planning Scheme 1988 ultra vires?

2 Is clause 7.1.1 of the Municipality of Kingborough Planning Scheme 1988 ultra vires?

3 Is clause 5.3.7(b) of the Municipality of Kingborough Planning Scheme 1988 ultra vires?

4 Does the Kingston Central Commercial Zone Development Plan have any force or effect prior to the full implementation of that Development Plan as recommended by it and if so to what extent?"

On 10 February 1988, the Draft Kingborough Planning Scheme 1988 was provisionally approved by the Kingborough Council pursuant to the Local Government Act 1962 ("the Act"), s726. Four days later it was submitted to the Commissioner for Town and Country Planning ("the Commissioner") for provisional approval by him pursuant to the Act, s727. On 22 March 1990, the Commissioner advised the respondent Council of his requirements for alterations and amendments to the draft planning scheme pursuant to the Act, s727(2). The alterations included a requirement to introduce a Kingston Central Special Area and make appropriate provisions for its development.

On 24 April 1990, the Commissioner provisionally approved the Kingborough Planning Scheme 1988 incorporating the amendments required by him. The scheme included the following clause:

7.7.1 The purpose of this Special Area Clause is to require subdivision and development within the main retail/commercial and surrounding areas to be undertaken in accordance with an approved development plan.

7.7.2 All subdivision and all new development other than demolitions, minor alterations and change of use of existing buildings or land shall be prohibited if it is contrary to a development plan approved under Clause 7.7.4 for the integrated development of this area.

7.7.3 The development plan for the Kingston Central Special Area shall be prepared and shall comply with the relevant requirements of clause 8.2.

7.7.4 The Council shall approve a development plan for the Kingston Central Area after it has:

i) referred the draft development plan to all State & Commonwealth departments or agencies which may be affected by the plan, allowing 28 days for a response.

ii) sought public comments on the draft development plan by public notification which allows 21 days for comments to be received, and

iii) taken into account all the views and comments received in accordance with sub-clause (i) & (ii), and where appropriate amended the development plan accordingly."

The other two clauses in the scheme, the subject of questions 3 and 2 respectively provide:

(b) In every case where a Special Area provision is inconsistent with any requirement of the zone the Special Area provision shall take precedence."

"7.1.1 A Special Area delineated on the Plan is land of particular interest, value, sensitivity or hazard where, in order to ensure that subdivision or development is compatible with the nature of that Special Area, provisions additional to, in lieu of or varying from those for the underlying zone are to apply."

It is common ground that the draft development plan was referred to all relevant departments and that public comment on it was sought by public notification in accordance with

cl 7.7.4(i) and (ii). It is also common ground that on 21 August 1991, after having fulfilled the foregoing requirements, the Kingborough Council passed a resolution adopting the objectives, findings, allocation strategy and planning principles of the Kingborough Development Plan (albeit as the plan has been variously described). It did not, however, purport to approve the entirety of the document and resolved to give consideration to a number of proposed amendments to the planning scheme itself, including the deletion of cl 7.7 and "the replacement of reference to a Special Area to [sic] the insertion of two new terms: the Kingston Central Activities District and the Kingston Central Area". Other changes to be given consideration included rezoning an area within the Special Area, namely Kingston Town Shopping Centre, from "Central Commercial Zone" to "Special Commercial Zone".

On 30 March 1992, the Commissioner for Town and Country Planning finally approved the Kingborough Planning Scheme 1988 pursuant to the Act, s730, with the scheme to come into effect on 6 April 1992. On 4 April 1992, public notice of the final approval was given pursuant to the Act, s730(3).

The right of local councils to initiate schemes or other methods of planning and controlling the development of land within their jurisdictions was, for present purposes, created by the Act. Because such schemes impact upon the rights of individual land owners, as well as upon those of the community at large, the Act sets out a regime for the determination of objections. The right of objection is given by s727 after provisional approval is given by the Commissioner. At that stage he may already have required the municipality to alter or amend the scheme in a manner which the municipality itself may find objectionable. Following public notification and display of the scheme, every owner and occupier of rateable property within the area affected by the scheme has a right of objection to the scheme and may, by notice in writing addressed to the Council, give notice of his objection and of the grounds thereof at any time within three months after the first public notification of the scheme. Section 728(1) provides:

"728 - (1) Where a municipality has received objections under section 727, it shall, not later than 3 months, or such longer period as the Commissioner, by notice in writing given at any time to the municipality, allows in relation to those objections, after the expiration of the period of 3 months referred to in subsection (4) of that section, forward them to the Commissioner, together with a statement of its opinion and views as to the merit of the several objections; and if the scheme has been prepared or altered by the Commissioner otherwise than at the request of the municipality, it may itself object, as prescribed, to the scheme or alteration."

If there are no objections received within three months, the municipality must advise the Commissioner of that fact within a further seven days (s728(2)).

By s729 the Commissioner is authorised to determine the objections. If the objections are not at first upheld, objectors must be advised when and where the objection will be heard. It has been held that this requirement is mandatory and that failure to so notify an objector will render the subsequent purported approval of the scheme a nulity (Devonport Municipality v Spence Products Pty Ltd (1970) 24 LGRA 79).

By s730, it is provided that when all objections to the scheme have been disposed of and the requirements of the Commissioner, if any, for the modification of the scheme have been complied with, the Commissioner, with the approval of the Minister, shall finally approve the scheme.

Modifications and alterations to the scheme may be made subsequently, but the scheme for lodging and hearing objections set out in ss727 - 729 is preserved in respect of them.

The appellant, against this background, contends that a provision in a statutory scheme which requires the preparation of a separate regime in respect of portion of the land in the planning scheme and which by-passes the procedure for objection laid down in the Act, is ultra vires.

Clause 5.3.7 authorises the making of special area provisions in certain cases and says that to the extent that any such provisions are inconsistent with any requirement of the zone, the former are to take precedence. Thus, if the scheme has a zoning provision creating a particular use a discretionary use within land which overlaps a special area and the special area provision makes that use prohibited within the special area, the latter provision prevails. I understand that to be arguably the case here (I say "arguably" because it is my understanding that the use is said to be implicitly prohibited by the development plan rather than specifically).

Clause 7.1.1 is merely descriptive of special areas. Neither it nor cl 5.3.7 is ultra vires. It is within the power of those charged with creating the scheme to make provision for special areas and to give those provisions priority over other general provisions. However, these clauses will be ineffective if the scheme purports to create a machinery for laying down such provisions which is beyond the powers conferred by the Act.

This brings us squarely to cl 7.7 and the four following sub-clauses which purport to create such a machinery. Clause 7.7.1 requires the creation of a development plan for the Kingston Central Special Area which is delineated on a plan which forms part of the scheme. The approval is required to be given by the Council by cl 7.7.4, after notification to relevant government departments and the members of the public, and after the Council has taken into account the input received from those notified. It is, no doubt, a fair and reasonable method of giving those interested an opportunity to object if they wish to, but it in no way resembles the method chosen by Parliament for interested parties to object to the provisions of the scheme which may affect them and for those objections to be determined. That method requires the objections to be commented on by the Council and finally determined by the Commissioner. The method set out in cl 7.7 leaves the Council the final arbiter of the contents of the development plan which will take precedence over the planning scheme. In my view, such a regime is inconsistent with that contemplated by Parliament and is ultra vires.

In Shire of Sherbrooke v F L Byrne Pty Ltd [1987] VicRp 29; [1987] VR 353, Southwell J held that a clause in a planning scheme requiring that certain land be subdivided only in accordance with a permit granted in accordance with a development plan was ultra vires insofar as it purported to prohibit the granting of a permit until a development plan was promulgated. At 364 he referred to the categorisation of the plan by the Planning Appeal Board Chairman as a plan which was extraneous to the scheme, did not recognise public input and did not have to be deposited for inspection, placed on exhibition and adopted after an opportunity had been given for objection and consideration of those objections by an independent panel, and said:

"Where the legislature has been at pains to ensure public participation in the processes leading to the adoption of a scheme and at pains to protect the rights of aggrieved person to appeal on the merits of an application, I find it startling that by the interposition of a 'management plan' or 'development plan', the terms of which, so it is claimed, are not subject to appeal, the Shire can so easily deny that right."

At the same page he referred to the comment of Gobbo J in Shire of Sherbrooke v Aitken [1981] VicRp 82; [1981] VR 873 at 876 that:

"It would require very compelling language in the Act to deprive an applicant of appeal rights available to other aggrieved applicants."

It is true that the case before Southwell J has several distinguishing features from the present. The development plan contemplated by cl 7.7 does require to be publicly notified and does require objections to be considered by the Council. Further, the development plan in this case was in existence and came before the Council on 21 August 1991, nearly eight months before the Commissioner gave his final approval to the planning scheme (although how effective it was is somewhat debatable, as only parts of it were adopted). However, the Act requires that objections to those matters covered by a planning scheme are to be determined by the Commissioner. Counsel for the respondent submitted that he was not an independent arbiter - that it was an appeal "from Caesar to Caesar", as he had already approved the plan provisionally - but that was the method of determination selected by Parliament and the Commissioner's provisional approval of a planning scheme prepared by the municipality would not normally preclude him, armed with his specialist skills in town and country planning, from a fair review of objections to it by owners and rate payers affected.

I do not regard the Commissioner's final approval of the planning scheme, with the concurrence of the Minister, on 30 March 1992, as somehow perfecting the development plan or so much of it as, on the evidence, the Council had approved. The development plan was not required to be placed before the Commissioner and the evidence is silent as to whether he was aware of its contents when he approved the planning scheme. It was not required to be, nor on the evidence was it, part of the scheme.

It may be that the Commissioner required some such provision as cl 7.7 as the prelude to an amendment of the scheme and anticipated the incorporation of the substance of the development plan into it at a later time. As I have said, the provisions as to objections would apply to an amendment and would allow that statutory process to be undertaken before its contents became enforceable as part of the scheme. However, there is no evidence that the development plan has been treated as an amendment or has taken effect as such, and on the ordinary construction of cl 7.7, it purports to provide that a development plan approved by the Council, without undergoing the processes required of an amendment, can impose conditions and restrictions which over-ride other parts of the scheme.

4 The Kingston Central Commercial Zone Development Plan has no force and effect.