Supreme Court of Tasmania|2007-11-16|Before: Evans J

Grunseth v Resource Planning and Development Commission [2007] TASSC 92 (16 November 2007)

Administrative Law - Judicial review - Reviewable decisions and conduct - Decisions to which judicial review applies - Decisions under an enactment - Generally - Decision not authorised or made without jurisdiction.

Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs and Anor (1996) 137 ALR 103; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, referred to.

Griffith University v Tang [2005] HCA 7; (2004) 221 CLR 99, distinguished.

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Amendment to planning schemes - Notice and advertising - Sufficiency of advertisement.

Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Scurr & Ors v Brisbane City Council & Anor [1973] HCA 39; (1973) 133 CLR 242; Litevale Pty Ltd v Lismore City Council (1997) 97 LGERA 91, referred to.

Administrative Law - Judicial review - Power of Courts under judicial review legislation - Generally - Discretion as to relief.

Australian Broadcasting Tribunal v Bond & Ord [1990] HCA 33; (1990) 170 CLR 321; Montreal Street Railway Company v Normandin [1971] AC 170; Woods v Bate (1987) 7 NSWLR 560; Emanuele v Australian Securities Commission (1997) 71 ALJR; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; Curac v Shoalhaven City Council & Ors (1993) 81 LGERA 124, referred to.

Judicial Review Act 2000 (Tas), ss27(1) and 38(1)(a)(ii)

First Respondent: Director of Public Prosecutions

Attorney-General: Director of Public Prosecutions

Judgment Number: [2007] TASSC 92

JON REIDER GRUNSETH, SALTEL INC and APOLLO BAY GROUP LLC

v RESOURCE PLANNING AND DEVELOPMENT COMMISSION,

1 The applicants, Jon Grunseth, Saltel Inc ("Saltel") and Apollo Bay Group LLC ("Apollo Bay"), have applied pursuant to the Judicial Review Act 2000 for an order quashing a decision made by the Resource Planning and Development Commission ("the Commission") on 13 December 2006 approving draft amendment 2005-4 to the Kingborough Planning Scheme 2000 ("the Scheme"). Amendment 2005-4 relates to the subdivision of land zoned environmental management in the Municipality of Kingborough. The applicants own land on Bruny Island within that zone. In very brief summary, the amendment reduces the capacity for subdivision within the zone by, for example, increasing the minimum lot size for the assessment of subdivisions from 5 to 20 hectares, and reducing the maximum lot yield from 20 to 10 lots.

2 The statutory scheme that governs the amendment of planning schemes includes a provision requiring the advertisement of notice of any proposed amendment. The applicants contend that the advertisements purportedly published in satisfaction of that requirement were inadequate and in consequence the Commission's decision should be quashed. To this end the applicants rely on the Judicial Review Act, s17, which relevantly 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.

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

(a) that a breach of the rules of natural justice happened relating to the making of the decision;

(b) that procedures that were required by law to be observed relating to the making of the decision were not observed;

(d) that the decision was not authorised by the enactment under which it was purported to be made;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);"

3 Counsel for the Attorney-General sought to circumvent the application with an argument that if the applicants' contention is correct, then the Commission's decision is not one that can be reviewed under the Judicial Review Act. This is said to be so because that Act, s4(1), provides that a decision to which the Act applies means "a decision of an administrative character made ... under an enactment ...".

4 In support of his argument, counsel relied on the following passage from Griffith University v Tang [2005] HCA 7; (2004) 221 CLR 99, Gummow, Callinan and Hayne JJ at par89:

"The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise."

5 Counsel submits that consistent with the first criterion, for a decision to be made under an enactment, it must be expressly or impliedly authorised by the enactment and of necessity a decision is not so authorised if beyond jurisdiction or not authorised, or made contrary to the requisite procedure. To so construe the Judicial Review Act, s4(1), would be contrary to the plain purposes of that Act and could render a number of the grounds detailed in s17(2) (as well as s18) nugatory. The grounds I have in mind are (b), (c) and (d) in both those subsections. Insofar as s17(2) and s18(2) spell out the grounds upon which application may be made for the review of a decision made under an enactment or conduct related to the making of a decision made under an enactment, they are protective provisions. Of necessity, provisions of this nature must be construed as providing relief, other than when the enactment that authorised the decision has been complied with, for when the enactment has been complied with, relief is not necessary. The relief is available to deal with failures to comply with the enactment, that is, a decision purportedly made under the enactment. That this is so is well illustrated by decisions in relation to the statutory protection provided in relation to conduct that require that the conduct was done pursuant to, or in execution of, a statutory provision: see Little v The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, Dixon J at 108, and Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ at 605.

6 The decision in Griffith University v Tang relied upon by counsel for the Attorney-General involved the Judicial Review Act 1991 (Qld). That Act, s4(a), is in similar terms to the Judicial Review Act (Tas), s4(1), and the Administrative Decisions (Judicial Review) Act 1977 (Cth), s3(1). Each of these sections contains a provision that the Act in question applies to "a decision of an administrative character ... made under an enactment". Prior to the decision in Griffith University v Tang, there was a welter of authority in existence to the effect that a decision is made under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act (Cth), s3(1), if the decision is made in purported reliance upon the statutory authority bestowed by the enactment. It is not necessary to detail the decisions. Many of them can be found in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs and Anor (1996) 137 ALR 103 at 125 - 127. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 315 and 339 is a decision to the same effect with reference to somewhat different provisions contained in the Administrative Appeals Tribunal Act 1975 (Cth).

7 The focus of Griffith University v Tang was on whether the decision under review was made under an enactment, or a contractual, or other legal power. I have no doubt that the passage from this authority that is relied upon by counsel for the Attorney-General was not intended to have the impact contended for by counsel and was not intended to over-rule the authorities I have referred to. The argument is rejected.

8 The Kingborough Council ("the Council") is a planning authority for the purposes of the Land Use Planning and Approvals Act 1993. Except where otherwise indicated, all references to sections are references to sections in that Act. A planning authority may amend a planning scheme, s34. After preparing a draft amendment to a planning scheme, the planning authority must determine whether it satisfies the requirements of s32 and, if so, certify to that effect, s35(1)(a). This the Council did in relation to draft amendment 2005-4 on 12 December 2005. As to advertising the draft amendment and publicly exhibiting it, s38 and the Land Use Planning and Approvals Regulations 2004, reg6, relevantly provide:

"38 After giving to the Commission a copy of a draft amendment of a planning scheme and the instrument certifying that the amendment meets the requirements specified in section 32, the planning authority must -

(a) cause a copy of the draft amendment to be placed on public exhibition for a period, being not less than 3 weeks and not more than 2 months, determined by the planning authority; and

(b) advertise, as prescribed, the exhibition of the draft amendment."

"6 (1) For the purposes of sections 38(b) and 41B(1)(b) of the Act, the exhibition of a draft amendment is to be advertised on at least 2 occasions in a daily newspaper circulating generally in the area covered by the draft amendment, with at least one of those advertisements to be on a Saturday.

(3) An advertisement under subregulation (1) is to -

(a) specify where and when copies of the draft amendment may be inspected; and

(b) describe the content of the draft amendment and the location of the affected area; and

(c) specify that representations in relation to the draft amendment may be submitted in accordance with section 39(1) of the Act; and

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

9 Advertisements were published by the Council for the purposes of the above provisions on 17 December 2005, 14 January 2006 and 21 January 2006. Each advertisement was the same, save that the date for lodging representations was extended. The final advertisement was as follows:

"KINGBOROUGH PLANNING SCHEME 2000

NOTICE IS HEREBY GIVEN that the proposed amendment known as Amendment 2005-4 to the Kingborough Planning Scheme 2000 has been certified as suitable for public exhibition by Kingborough Council and may be inspected during office hours at the Council Offices, Channel Highway, Kingston, and the Resource Planning and Development Commission, 3rd Floor TGIO Building, 144-148 Macquarie Street, Hobart.

In accordance with Sections 38 and 39 of the Land Use Planning and Approvals Act 1993 any person has a right of representation in relation to the draft amendment.

Notice of the representation and the grounds thereof shall be made in writing and lodged with the General Manager by 5 pm on Thursday 16th February, 2006.

The proposal is as follows:

2005-4 Amendment clarifying the outcomes and standards for subdivision in the Environmental Management Zone.

10 After the exhibition period, the Council provided the Commission with a report in conformity with s39(2) comprising:

• a copy of the 33 representations received;

• a statement of its opinion as to the merit of each representation, including its views as to the need to modify the draft amendment in the light of the representation and the impact of the representation on the draft amendment as a whole; and

• a recommended modification to the draft amendment.

11 Pursuant to s40(1), the Commission considered the draft amendment, the representations and the Council's report and as required by s40(2), the Commission conducted hearings on 4 and 5 September 2006 in the course of which it addressed the 33 representations. Some representors had no notice of the Council's recommended modification to the draft amendment. Accordingly, the hearing was adjourned to enable the Council to provide notice of the modification to all representors. That having been done, the hearing was reconvened on 1 November 2006. Thereafter the Commission prepared a detailed report in which it approved the draft amendment as modified pursuant to s42.

12 On 13 December 2006 that approval was published by the Commission and signed by the chairperson of the Commission. On 23 January 2007, the applicants filed the application that is now before me.

13 Section 38(b) required the Council to advertise, as prescribed, the exhibition of the draft amendment. Regulation 6 details what is prescribed. It includes a requirement that the advertisement "describe the content of the draft amendment and the location of the affected area", reg6(3)(b). The applicants contend that the advertisement published by the Council did not satisfy either of these requirements, that is, describe the content of the draft amendment or the location of the affected area. The land affected by amendment 2005-4 is land subject to the Scheme zoned environmental management. The advertisement published by the Council clearly identifies that it involves the Scheme and specifies that it relates to "outcomes and standards for subdivision in the Environmental Management Zone". I am satisfied that this is sufficient to satisfy the requirement that the advertisement describe the location of the affected area.

14 The only information in the advertisement that goes any way towards describing the content of the draft amendment is the last paragraph which states:

2005-4 Amendment clarifying the outcomes and standards for subdivision in the Environmental Management Zone."

Insofar as this paragraph can be said to describe the content of the draft amendment the word "clarifying" is central to that description. The meanings ascribed to clarifying by the Macquarie dictionary, 2nd revised edition, are:

"Clarify, -fied, -fying. 1 to make or become clear, pure, or intelligible. 2 to make a liquid clear by removing sediment, often by hearing gently. - clarification, -clarifier."

15 In the context of an amendment to a planning scheme, the description of an amendment as a clarification would ordinarily mean that it does not significantly change that which went before, but made it more intelligible, for example, by clearing up ambiguities and uncertainties. Amendment 2005-4 cannot properly be described as clarifying outcomes and standards for subdivision, it substantially changes them. That this is so is made clear by a summary of the amendment provided by the Council to all the owners of land in the zone under cover of a letter of 25 January 2006. That summary includes the following:

•

Makes subdivision only possible where conservation outcomes are achieved. All such outcomes are defined and the more outcomes achieved the greater the opportunity for subdivision.

•

But this subdivision must occur on land of least environmental value and the larger the subdivision, the greater the clustering and the greater the conservation reserve (eg 5% developed where 10 lots created).

•

Increasing the minimum lot size for the assessment of subdivisions from 5 to 20 ha. This effectively reduces the number of lots able to be subdivided across the whole municipality - in theory, from well over 1,000 to a few hundred. Much less than this would have potential to be subdivided into more than 1 lot.

•

Reducing the maximum lot yield from 20 to 10 lots, and then only where certain key criteria (conservation outcomes) are met. This is closer to the incentives available in WA and Qld (typically allow 3-4 lots).

•

Employs the use of average densities in the outcomes table to drive the assessment.

•

Restricts all future subdivision potential for any land in the Environmental Management Zone to 1 lot (even where land has an area of over 20 ha) unless the outcomes for habitat protection, threatened species management or the like are achieved.

•

Requires clustering of all new lots to minimize site disturbance. This is mandatory, compared with the current scheme where clustering is only preferred.

•

Avoids extended battle-axe blocks that create new lots hundreds of metres from roads. Currently subdividers are overcoming the road frontage aspect of the subdivision clause by creating very long accesses in order to create lots with the best views.

•

Requires management plans that extend from no less than 10 years for smaller subdivisions (1 lot) up to 20 years for larger subdivisions (10 lots).

•

Explicitly recognizes the State Coastal Policy, in that it actively discourages coastal development and focuses on any new lots being around any existing small lots, or towns and settlements.

•

Addresses legal concerns about certain wording eg 'parent lot' versus 'the land' etc.

•

Confirms subdivision can only be assessed against the zone standards - irrespective of whether land has dual zoning (currently not well defined)."

For example, insofar as the amendment reduces the capacity to subdivide within the zone by increasing the minimum lot size for the assessment of subdivisions from 5 hectares to 20 hectares and reducing the maximum lot yield from 20 lots to 10 lots, the amendment goes well beyond clarifying the outcomes and standards for subdivision in the zone and significantly changes them. From this perspective it can be said that the advertisement does not in fact describe the content of the amendment and insofar as it purports to do so, it is misleading. As to the effect of this non-compliance, I drew the attention of counsel to s42(3)(b), which relates to a failure to comply with a procedural provision, and s43(2), which relates to a failure to comply with a provision within a prescribed period. As no counsel has suggested that these provisions have any application, I will not address them.

16 The requirement that the content of the amendment be advertised is an aspect of the first step in a statutory scheme calculated to give those who might be affected by an amendment notice of what is proposed and provide them with an opportunity to be heard in relation to the proposal. The Council's failure to comply with its obligations in this regard provides a legitimate basis for the applicants' contention that, in consequence, the Commission's ultimate decision approving the amendment is invalid. Where a decision has been made subsequent to the breach of a provision in the statutory framework that authorises the making of the decision, the test that determines the validity of the decision is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid, Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, par93.

17 The requirement in reg6(3)(b) that the advertisement describe the content of the amendment serves a number of significant purposes. It is a means of providing those who may be affected by the amendment with notice of what is proposed and, in conjunction with requirements that the advertisement specify that representations may be made in relation to the amendment and explain how they may be made, it also provided a means for interested parties to have their views considered by the Council and the Commission and be involved in a hearing conducted by the Commission. In these circumstances, consistent with decisions including Scurr & Ors v Brisbane City Council & Anor [1973] HCA 39; (1973) 133 CLR 242, and Litevale Pty Ltd v Lismore City Council (1997) 97 LGERA 91, in the ordinary course it would be concluded that in consequence of the Council's breach, the Commission's decision was invalid and relief would follow. However, the circumstances before me suggest that this may not be an ordinary case. It is accordingly necessary for me to address the Court's discretion in relation to the granting of relief. The Court's power to make orders are expressed in terms of a discretion in the Judicial Review Act s27(1). See also that Act s38(1)(a)(ii) and Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321, Mason CJ at 338.

18 Before turning to the circumstances of the applicants' case, I refer to the reluctance of courts to invalidate acts done pursuant to a statutory power because of a failure to comply with a prior statutory requirement. The authorities I have in mind relate to the construction of the statutory power in question. However, the considerations that explain this reluctance are also relevant to the discretion I am called upon to exercise.

19 In Montreal Street Railway Company v Normandin [1917] AC 170 at 175, Sir Arthur Channell, who delivered the decision of the Privy Council, said:

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."

20 In Woods v Bate (1987) 7 NSWLR 560 at 567, McHugh JA said:

In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition: see Simpson v Attorney-General [1955] NZLR 271; Clayton Heffron; Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306; Ex parte Tasker; Re Hannan [1971] 1 NSWLR 804; Attorney-General (NSW): Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 reversed on another ground sub nom Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd) (1977) 52 ALJR 218; 17 ALR 63; Tasker v Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont (1978) 52 ALJR 589; 20 ALR 314."

21 In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 71 ALJR 717, Kirby J said at 739:

"There is a reason for the tendency in the series of cases cited by McHugh JA in Woods v Bate ... and in other cases to like effect, for the reluctance of courts in recent times to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition. Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. ... An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing."

22 Mr Grunseth owns 126.6 hectares of land on Lennon Road, Bruny Island. He is the sole shareholder in Saltel which, together with Apollo Bay, own 160.9 hectares of land as tenants in common. This land is on the opposite side of Lennon Road to Mr Grunseth's land. Two affidavits sworn by Mr Grunseth were read. He was not cross-examined. He was authorised by the other applicants to make the affidavits. An affidavit sworn by Anthony Ferrier, the director of community planning and development of the Council, was read. He was not cross-examined. Mr Grunseth communicated with Mr Ferrier in relation to the proposed amendment between September 2006 and October 2006 and Mr Ferrier says that he understood from Mr Grunseth that Mr Grunseth had full authority to speak for, and act on behalf of, Saltel and Apollo Bay.

23 The inadequate advertisements in contention were published in December 2005 and January 2006. From late 2005 until the end of March 2006, the Council conducted 11 public meetings in various parts of the municipality to discuss its review of the Scheme. One of those meetings was at Alonnah, Bruny Island, on 19 January 2006. The discussion at that meeting was dominated by draft amendment 2005-4 which was then on public exhibition. Mr Grunseth was a very active participant in the meeting. His main concern was the impact of the amendment on the potential to subdivide land. Notes taken at the meeting record that the features of the proposed amendment were explained and include a record of Mr Grunseth saying that he wanted the whole planning scheme amendment slowed down. The notes also record that a complaint was made that it should be possible to subdivide land down to 5 hectare blocks in the environmental management zone. Mr Grunseth makes no mention of this meeting in his affidavits.

24 By letter dated 25 January 2006 the council sent letters to all owners of land on Bruny Island zoned environmental management. That letter sets out full details of the draft amendment. An extract from that letter is set out in par15 above. Mr Grunseth is on the list of addressees to whom the letter was sent, his address being recorded as 258 Lennon Road. Saltel and Apollo Bay are on the list at the same address. Mr Grunseth says that his street address is 259 Lennon Road, Bruny Island, and that he does not know what the street address is for Saltel or Apollo Bay. As their land is on the opposite side of the road to that of Mr Grunseth, it would not be surprising if their street address is 258 Lennon Road. Mr Grunseth does not deny that he or those entities received the letter. At a different point in the affidavit to which I am referring he says that all his mail was redirected to the Kettering Post Office from where he collected it from time to time.

25 The February 2006 edition of the Bruny News, a local Bruny Island newspaper, included a press release from the Council outlining the objectives of the proposed amendment and advice that the Council would conduct an information and workshop session in relation to the amendment, at the Lunawanna Hall on 8 February 2006. A that meeting Council staff, including Mr Ferrier, explained the details of the amendment. Mr Grunseth does not refer to the Bruny News report or this meeting in his affidavits.

26 The time for making representations expired on 16 February 2006. Mr Grunseth says: "I did not make any representation in response to the advertisement, which only described the amendment as a 'clarification'". He does not say he was not then aware of the substance of the draft amendment.

27 Mr Grunseth says he did not attend the Commission's hearing on the amendment on 4 and 5 September 2006 as he was out of Australia. I conclude that he was in Australia by 7 September 2006 as he had a scheduled meeting with Mr Ferrier on that date, as well as meetings with him on 29 September and 17 October 2006. Mr Ferrier says that between early September 2006 and late October 2006, there were also various unscheduled meetings and phone conversations between he and Mr Grunseth, which often dealt with how amendment 2005-4 would bear on a subdivision application being advanced by Mr Grunseth.

28 The hearing before the Commission on 4 and 5 September 2006 was adjourned because some representors did not have prior notice of the Council's recommended modification to the amendment. Following the adjournment, the Council sent a letter to each representor dated 20 September 2006 enclosing a copy of the amendment showing the modification proposed, together with a copy of the amendment as it would appear in the Scheme if approved. The letter also detailed what the modification to the amendment involved. As Mr Grunseth was not a representor, a copy of this letter was not forwarded to him. He obtained a copy of the letter and its enclosures from a representor, Gill Fowler. He also spoke to another of the representors, Keith Bill, who told him that there had been changes made to the amendment and that there was to be a further hearing. Mr Grunseth says: "I recognised when I saw the changed amendment that there was a substantial change to the scheme concerning subdivisions in land zone environmental management". Mr Grunseth appeared at the adjourned hearing before the Commission on 1 November 2006 as the representative of the Bruny Island Community Association. On 13 December 2006 the Commission approved the amendments to the Scheme.

29 The inadequate advertisements upon which the applicants seek to rely in order to obtain relief were published approximately 11 to 12 months prior to the decision of the Commission which the applicants seek to quash. The time lapse between the advertisements and the Commission's decision is significant because considerable inconvenience may flow from quashing the decision. The process would have to start again and a good deal of that which was done may have to be done again. Anyone who has acted on the decision may be disadvantaged. These are the sorts of reasons why a grant of relief consequent upon judicial review is discretionary. The more that has been done in reliance upon the validity of the Council's advertisements, the more difficult it is for the applicants, or any others minded to seek a review of that which transpired, to obtain relief.

30 A difficulty faced by a respondent opposing relief arising from the inadequacy of a notice such as the advertisements in question is that whilst lack of prejudice to an applicant may be demonstrated, the Court cannot be sure that other members of the public have not been prejudiced. See Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, Wilson J at 518 and Curac v Shoalhaven City Council & Ors (1993) 81 LGERA 124 at 130.

31 Mr Grunseth does not explicitly assert that he or the other applicants were disadvantaged by the inadequacy of the advertisements and I am not satisfied that they were. From the stand point of a refusal to grant relief, I do not consider that I must be satisfied that there is no possibility that some other interested person may be able to establish an entitlement to relief. On the information before me, I consider it unlikely that another applicant could establish such an entitlement. The Council went to considerable lengths to ensure that interested persons were aware of what was involved in the proposed amendment. It is unlikely that an interested person will be able to establish that he or she was prejudiced by the advertisements. The Commission conducted hearings in relation to the amendment over three days, in the course of which 33 representations were dealt with. It seems likely that most of the plausible objections to the amendment that could be raised were raised and were canvassed in the course of that hearing. In the circumstances there is no reason to conclude that a re-hearing before the Commission would result in a different outcome. Against this background I decline to grant the applicants the relief that they seek. The application is dismissed.

Use Planning and Approvals Act 1993

Use Planning and Approvals Regulations 2004

Grunseth v Resource Planning and Development Commission [2007] TASSC 92

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Judgment (54 paragraphs)

Grunseth v Resource Planning and Development Commission [2007] TASSC 92 (16 November 2007)

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