Grunseth v Resource Planning and Development Commission [2008] TASSC 35

[90]

45 Because the Commission approved the draft amendment on 13 December 2006, without specifying a date upon which it would come into operation, it in fact came into operation on 20 December 2006 by virtue of LUPA, s42(4). There was evidence that on 23 December 2006, the Council advertised the approval of the amendment in the Mercury newspaper. The application of the appellants for judicial review was filed on 23 January 2007. The hearing of the application concluded on 31 August 2007 and the judgment from which the appeal has been brought was published on 16 November 2007. The learned judge was entitled to infer, in the absence of evidence that any other persons had applied for judicial review of the Commission's decision, that none had done so and having regard to the passage of time, it was becoming increasingly unlikely that other persons would do so. His Honour quite properly commented on the lapse of time since the publication of the advertisements in December 2005 and January 2006 and the likelihood that considerable inconvenience might flow from quashing the decision, and noted that persons may have acted on the amendments and might be disadvantaged. The comment of the learned judge that the more that had been done in reliance upon the validity of the Council's advertisements, the more difficult it was for the appellants, or any others minded to seek a review of that which had transpired, to obtain relief, was an appropriate one in all the circumstances. The finding that it was unlikely that another applicant could establish an entitlement to an order quashing the Commission's decision was open having regard to all the matters I have been discussing. The more time passes without an application by another person that is based on the inadequacy of the advertisements, makes it increasingly unlikely that the decision will be quashed in the future. The Judicial Review Act, s23(2), expressly empowers a court to refuse to consider an application for review of a decision in circumstances where the application was not made within a reasonable time after the decision was made. For these reasons, ground 6 fails.

[115]

"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.

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.

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.

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."

[131]

What, then, is the effect upon this appeal of what I regard as the inadequacy of public notice of Myer's application? In argument two distinct aspects of this question were discussed, the first being whether the requirements of s 22(1) concerning the content of advertisements was mandatory or only directory, the second being whether, whatever the nature of those requirements, any shortcomings in the advertisements could be relied upon in the proceedings before the Local Government Court. The applicable principles determining the choice between a mandatory and a directory interpretation are well settled and are succinctly stated in a passage from Maxwell on the Interpretation of Statutes, 12th ed (1969), pp 314-315, which has been referred to with approval in a number of the authorities; in SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; (1964) VR 229 , Gillard J undertook a quite detailed consideration of the application of those principles to a situation not unlike the present. His Honour was there concerned with a notice requirement appearing in Victorian town planning legislation and, although details of that legislation differ significantly from the terms of s 22, his Honour's discussion of the principles affecting a choice between a mandatory and a directory interpretation are, I think, in point in the present case.

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 upon the giving of public notice for the attainment of its objects.

I doubt, however, whether, in the present case, a distinction of any substance exists between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application. It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v Lyme Regis Corporation [1962] 1 QB 718 provides a modern instance of this. When the requirement is that 'particulars of the application' should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation."

[156]

76 The reasons of the delegates, without annexures, run to some 19 pages. They adequately summarise the draft amendment, its intended objectives and its effects. They deal with each criterion and state the objections to each, including the material and critiques set out in the Productivity Commission Inquiry Report entitled Impacts of Native Vegetation and Bio Diversity Regulations. The delegates considered the interrelationship of the proposed management regime and existing Private Tree Reserves and differing statutory provisions, including the Kingborough Planning Scheme, the Bruny Planning Scheme 1986, the Threatened Species Protection Act 1995, the Environment Protection and Biodiversity Conservation Act 1999, the Nature Conservation Act 2002, and the State Policies set out in the State Coastal Policy 1996, the State Policy on the Protection of Agricultural Land 2000, and the State Policy on Water Quality Management 1997. The delegates analysed each of the thirteen criteria for a subdivision required by the amendment cl 9.4.2.1(b), set out in Table 9.1. They dealt with the objections advanced by the opponent representors, made some amendments to the draft, and in some instances identified further amendments or assessments necessary if the Council wished to pursue certain matters such as boundary adjustment or in the implementation of the scheme. The reasons were thorough, disciplined and wide-ranging. The appellants had the opportunity to advance other material or reasoning through the first appellant and can show no significant matters not raised or dealt with by the delegates. An artificial or theoretical construct that something else might have been advanced by another person who might have appeared, did not prevent the learned primary judge from making the finding, if such is the import of his statement. He was not precluded, in the exercise of discretion, from either declining to take the construct into account or concluding that no other reasonable argument was apparent. This ground ought fail.

Grunseth v Resource Planning and Development Commission [2008] TASSC 35 - TASSC 2008 case summary — Zoe

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Grunseth v Resource Planning and Development Commission [2008] TASSC 35 (25 July 2008)

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