APPEALED FROM: Smith v Hobart City Council [2009] TASRMPAT 94

Environment and Planning - Environmental planning - Development control - Control of particular matters - Subdivision - Principles governing consent or approval - General principles - Refusal based on lack of access to adjoining lot - Adjoining lot subject to development application but with access by rights-of-way - Effect of refusal to require developer to give up land for road access - Whether refusal contrary to principle.

Coulson v Shoalhaven Shire Council (1974) 29 LGRA 166; Proctor v Brisbane City Council [1993] 81 LGERA 3, considered.

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, applied.

Judgment Number: [2010] TASSC 11

1 The Hobart City Council has appealed to this Court pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25, from a decision of the Resource Management and Planning Appeal Tribunal made on 15 May 2009. Mr and Mrs Smith, the first and second respondents, are the owners of a large bushland block at 502 Nelson Road, Mt Nelson, on which there is a residence and some outbuildings. The third respondent is the owner of 504 Nelson Road. He did not wish to be heard on this appeal, and I will call Mr and Mrs Smith "the respondents".

2 In May 2008 the respondents applied to the Council for a permit for a 12 lot subdivision of their land. This was a cul-de-sac arrangement with access from Nelson Road. At its northern end, the frontage of No 502 onto Nelson Road is a narrow strip of land about 27 metres wide and 56 metres long. Numbers 504 and 506 Nelson Road are small rectangular blocks which lie either side of that strip of land. The large rectangular bulk of the respondents' land is adjoined on its eastern side by a similar sized and shaped block, which is 512 Nelson Road. The main access to 512 Nelson Road is by a right-of-way about 3.6 metres wide over 512A Nelson Road, another smaller block which has full frontage to Nelson Road. There is another access to the south eastern corner of 512 Nelson Road by means of a right-of-way about 18 metres wide and 25 metres in length from Lalwinya Road.

3 On 18 December 2008 the Council refused the respondents' application. There were two grounds, only one of which is relevant to this appeal, and which is in the following terms:

"1 The proposal warrants refusal under Section 85(a) of the Local Government (Building and Miscellaneous Provisions) Act 1993, in that the roads will not suit the public convenience and will not give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area in which it is."

4 The respondents successfully appealed to the Tribunal which set aside the Council's decision. It ordered that a permit issue to the respondents in the terms of their application for a subdivision, and directed that the Council "and the developer" prepare a schedule of conditions to be attached to the development for the consideration of the Tribunal within 21 days. It is that decision which is the subject of this appeal.

5 The Council's concern was that the proposed subdivision of 502 Nelson Road ought to have included provision for means of vehicular access to 512 Nelson Road, that lot not having actual frontage to any roadway. This is clear from the documents and the evidence before the Tribunal. The following is taken from the proof of evidence of Amanda Beyer, Council Assistant Planner:

"Noting the neighbouring site's access deficiencies and its Residential 2 zoning under the City of Hobart Planning Scheme, a means of vehicular interconnectivity between the subject site and that site [No 512] is required to facilitate the future development of that plan. The potential efficiencies gained from the appropriate development of that land is zoned for Residential development, such as the site at 512 Nelson Road, are important not only from the municipal perspective, but from a wider metropolitan point of view. Enabling the proposed subdivision [502] to proceed without means of establishing vehicular interconnectivity would effectively 'sterilise' that lot and further subdivision potential and would make it difficult to achieve such efficiencies."

6 Acting under the Land Use Planning and Approvals Act 1993 ("LUPA"), s54, the Council requested additional information from the respondents. They were asked to demonstrate how satisfactory inter-communication "for residents of the City" can be obtained for the adjacent site at 512 Nelson Road. The reason for that requirement was so as to avoid the potential for "sterilisation" of any future development potential of the neighbouring lot at 512 Nelson Road. There were other requests for additional information which were complied with, but the respondents did not provide any information in relation to the inter-communication issue, and were content for their application to be considered as proposed.

7 The restricted forms of access to 512 Nelson Road resulted from the subdivision of land which was carried out over a number of years; most recently in 1972 when No 512A was made a separate lot, it previously having been left as a road inlet for the block as a whole, but regarded as no longer required as such, "as alternative road access will become available from the adjoining properties, in line with the road layout approved by the Town Planning Committee on 21 July, 1964". In 2006 the owner of 512 Nelson Road applied to the Council for approval of a subdivision. Again, under the LUPA, s54, the Council required additional information. One aspect of the request was to demonstrate how "legal frontage to the public road network can be provided to each lot ... in accordance with Section 109 of the Local Government (Building and Miscellaneous Provisions) Act 1993". Another aspect of the request was to show "how satisfactory inter-communication for residents of the City can be achieved ... in accordance with Section 85" of the same Act. The request for information was not met, and the application for the subdivision of 512 Nelson Road was treated by the Council as "stalled", pending the receipt of further information.

8 The difficulties faced by the owner of 512 Nelson Road relating to the frontage to public roads arise, as noted in the Council's request, under the provisions of the Local Government (Building and Miscellaneous Provisions) Act 1993 ("LG(BMP)A"). Section 84(1)(a) of that Act provides that a plan for subdivision is not to be approved if any proposed lot does not have the qualities of a minimum lot. The LG(BMP)A, s109, sets out the requirements for minimum lots which, in general terms, include frontages (of varying dimensions depending upon the area in which the development is situated) "upon a road". Section 109(3)(i) enables a lot with all the qualities of a minimum lot except in respect of frontage, to qualify in certain circumstances where it has access to a road by a right-of-way of at least 3.6 metres wide.

9 In this case the Tribunal treated 512 Nelson Road as "landlocked", at least so far as the particular subdivision of it was concerned. It noted however, that strata title development which is not subject to the provisions of the LG(BMP)A, would be possible. The extent of any such development would, of course, be subject to the exercise of the Council's discretion. Further, it was common ground before me that some limited subdivision development on 512 Nelson Road is possible, subject to the grant of a permit. It would appear that up to three lots close to Nelson Road might fall within the LG(BMP)A, s109(3)(i).

10 By virtue of the LUPA, s5, the Tribunal was to exercise its powers in such a manner as to further the following objectives:

"PART 1 - Objectives of the Resource Management and Planning System of Tasmania

1 The objectives of the resource management and planning system of Tasmania are -

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; and

(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.

...

PART 2 ** - Objectives of the Planning Process Established by this Act**

The objectives of the planning process established by this Act are, in support of the objectives set out in Part 1 of this Schedule -

(a) to require sound strategic planning and co-ordinated action by State and local government; and

(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and

(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and

(d) to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and

(e) to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals; and

(f) to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania; and

(g) to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value; and

(h) to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; and

(i) to provide a planning framework which fully considers land capability."

11 The relevant land is in Precinct 36C of the Residential 2 Zone as provided for in the City of Hobart Planning Scheme 1982. The objective of the Residential 2 Zone is:

"... to sustain and enhance the character and amenity of areas of predominantly detached houses, with limited development of complementary dwelling-types and minimum intrusion or further development of non-residential uses not necessary to serve local residents."

12 The statement of desired future character for the precinct is that it:

"... should continue to develop primarily with detached housing in a bushland setting. The use of materials that blend with the colours and textures of the natural vegetation should be encouraged ...".

13 Section 85(a) of the LG(BMP)A is reflected in the terms of the Council's refusal. It provides as follows:

"85 Refusal of application for subdivision

The council may refuse to approve a plan of subdivision if it is of the opinion -

(a) that the roads will not suit the public convenience, or will not give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area in which it is;"

14 With a view to demonstrating an unreasonable burden, the respondents' evidence put before the Tribunal focussed on the practicalities and the financial impact of altering the configuration of the proposed subdivision in order to provide road access to the boundary of 512 Nelson Road. This included expert evidence from a valuer, a civil engineer, a surveyor, and a planning consultant. The surveyor, Mr Noel Leary, put forward to the Tribunal an alternative layout which provided access to 512 Nelson Road. He said that he had been asked to do this "in the context of the appeal". This access was achieved by the removal of lot 7 with, in its place, a road to the boundary of No 512. The Council's Strategic Planning Engineer, Mr Leon Parker, agreed that this proposal would be suitable subject to some possible minor changes in terms of engineering detail and lot layout. However, the respondents' position remained one of contending for the original proposal as rejected by the Council.

15 Mr Parker accepted a proposition put to him in cross-examination that the Council was effectively expecting a private landowner to provide a benefit to another private landowner. Various ways in which the Council may have gone, or could go, about securing access to No 512 were canvassed with him. In cross-examination, Ms Beyer accepted that it was "a failure of 512 to adequately resolve its access issues for subdivision which is the core reason for refusal of [the respondents'] application".

16 At the conclusion of the evidence, counsel for Mr and Mrs Smith submitted to the Tribunal that the Council had exceeded its power. It was put that the Council's position was that if the subdivision was approved, an opportunity was lost to ensure that 512 Nelson Road was subdivided to its full potential. That, it was submitted, was "a misuse of ... power". The point was pursued in terms of a submission that "the sole reason for refusing has got nothing whatsoever to do with [Mr and Mrs Smith's] subdivision but it's because we haven't provided the road to the boundary to facilitate the private development of 512". And hence, because of s59 on that basis, it was argued that there was no valid decision. That meant, because of s59 of the LUPA[1], that there was therefore a deemed grant of a permit subject to conditions to be imposed by the Tribunal.

17 It was further argued that on the whole of the evidence, the Council's decision when viewed objectively, was "totally unreasonable", involving "cross subsidisation by one private landowner to another". Counsel submitted that it was "grossly unfair" for the Council to have proceeded in way in which it did, and identified other ways in which Council or the owner could go about rectifying the issue of access to No 512, without any significant impact on the respondents.

18 It can be seen that in the proceedings before the Tribunal, much emphasis was placed on the motives of the Council and the reasons for their actions. Those actions, of course, were to seek additional information as to the inter-communication issue, and then to refuse the application when the respondents failed to comply with that request. At this point it is worth noting that the Tribunal was exercising original jurisdiction, and was carrying out the same functions under the LUPA as was the Council when it first considered the application: see the Resource Management and Planning Appeal Tribunal Act, s23(1), and Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99 at [16]. Although the way in which the parties conduct a case before the Tribunal serves to define the issues, and the proceedings take on an adversarial appearance, the Tribunal's role was to consider the application afresh.

19 Although it is not directly an issue in the appeal to this Court, I think it is appropriate to set out the way in which the Tribunal dealt with the submission that the Council had acted beyond its power. After setting out s85(a) of the LG(BMP)A, the Tribunal continued:

"10 ... Mr and Mrs Smith submit that reliance on this Section is in effect a misuse of power since the Section does not confer a power on the Council to refuse to grant a permit to them (or for that matter anybody else) because of the belief that certain activity was necessary to facilitate future development. The submission is based upon the well known principle that a power may not be used by an administrative decision-maker for some purpose other than, or ulterior to, the purpose for which it is conferred (see in re Arkless [2003] TASSC 93). The submission is rejected.

11 Notwithstanding the evidence that emerged at the hearing, it is clear enough, as the Tribunal has already ruled in relation to an associated appeal, that the decision of the Council, ostensibly based upon Section 85(a) was, on the face of it at least, within power. The Council was entitled to refuse to approve a plan of subdivision if it was of the opinion that the roads would not suit the public convenience or would not give satisfactory intercommunication to the inhabitants both of the subdivision and the municipal area in which it is.

12 That such a conclusion may not have been justified, particularly in light of the evidence and concessions made at the hearing, is beside the point. It does not follow from the fact that evidence did not support a particular conclusion that the decision was not within power. The Council was, and is, entitled to reach an opinion that roads will not suit public convenience or they will not give satisfactory intercommunication in respect of any plan of subdivision, and having reached that opinion, is entitled (not obliged) to refuse to approve that plan. ..."[sic]

20 The submission was accordingly rejected and the Tribunal proceeded to consider the merits. Having regard to the arguments put to me, I will have to set out all the relevant paragraphs of the reasons. They are as follows:

"14 The Tribunal is, however, unequivocally of the view that there is no merit in the Council's position. All of the evidence points to the fact that the only appropriate decision in the circumstances of this case is one authorising the grant of a permit.

15 It emerged at the hearing (and was clear enough before that) that the Council's position was only that the proposal for a subdivision of 502 Nelson Road should be rejected because it did not allow for a through road to be constructed to the boundary of 512 Nelson Road.

16 512 Nelson Road is another block of land, which, despite its number, adjoins the boundary of 502 Nelson Road. It has a different owner. It also has been the subject of an application for a subdivision permit. The evidence disclosed that that application was made to the Council in 2006. The evidence also disclosed that that application for a permit had 'stalled' as a result of a failure, or, perhaps, inability, on the part of the Applicant for the permit to answer a request made by the Council pursuant to Section 54 of the Land Use Planning and Approvals Act 1993 (the 'Land Use Act')

17 That Section 54 request was directed to addressing an obvious problem with that proposal, namely the fact that the proposal for the subdivision of 512 Nelson Road was, to say the least, problematic because the lot does not have frontage to a road as required by the Local Government (Building and Miscellaneous Provisions) Act 1993 (see Section 109). It follows from this that 512 Nelson Road is 'landlocked' at least so far as subdivision is concerned even though it has two methods of access. The first - a right-of-way 3.6 metres wide - gives access to and from Nelson Road. The second - a right-of-way 18 metres wide in the south-western corner of the block - gives access to and from Lalwinya Court. But neither provides 'frontage' in terms of the Local Government (Building and Miscellaneous Provisions) Act 1993. Unless and until this difficulty can be overcome it is clearly the case that no permit would, or could, issue from the Council authorising the subdivision.

18 But it is no proper use of planning power to rectify this difficulty for an adjoining landowner by endeavouring to require Mr and Mrs Smith to provide access at the cost of one lot of their proposed 12 lot subdivision. As Helsham J in Coulson v Shoalhaven Shire Council (1974) 29 LGRA 166 said at 172:

'Planning principles involve public considerations, including the placing of restrictions on the rights of owners of land to use, enjoy, or even retain their land, in the interests of the community, and no doubt tree preservation and private access to public roads are matters involving public consideration; but to suggest that these considerations enable the alteration of rights of property as between private individuals, that they can be used to compel one owner to confer a private right of property on another, seems to be foreign altogether to the notion of the application of town or country planning principle to matters of subdivision.'

19 The Tribunal quite agrees.

20 To refuse to grant to Mr and Mrs Smith the permit that they seek on the basis that they in turn have refused to submit a proposal which provides a road to the boundary of 512 Nelson Road would be to 'compel one owner to confer a private right of property on another'. It would compel Mr and Mrs Smith to, at considerable cost to them (as the Valuer, Mr Wilson, explained in his evidence), rectify a problem not of their making. It would compel them to confer a significantly valuable right upon another neighbouring landowner without any certainty of ever receiving any, let alone adequate, compensation. Mr Wilson, the Valuer, gave evidence that block 7, that which is proposed to be the road, was worth in the order of $185,000. Whether it is that lot, or another lot valued at $180,000 is largely academic; the fact is that the loss of a lot worth that amount of money from a relatively modest subdivision is, in the Tribunal's view, a significant impost upon Mr and Mrs Smith that ought not be visited upon them.

21 It is not as if the land at 512 Nelson Road is rendered utterly sterile. For a start, as quite properly conceded by Mr Morris on behalf of the Council, the land would be available for strata titling. In fact it seems that in excess of 40 residences could be constructed on that lot and strata titled. Strata titling does not require the same road frontage as a subdivision. Strata titling would be entirely consistent with the Statement of Desired Future Character of the area.

22 Secondly, there is absolutely nothing to prevent the owner of 512 Nelson Road from acquiring ownership of the right-of-way in the south-eastern corner of the lot to Lalwinya Court. There is nothing either to prevent the owner of 512 Nelson Road (or for that fact the Council) acquiring, in the open marketplace, one of the lots of Mr and Mrs Smith's proposed subdivision to enable a road to be constructed through to the boundary of 512 Nelson Road. Another possible solution (and the Tribunal does not overlook Mr Parker's misgivings about this) is the acquisition of one of the lots with houses that fronts Nelson Road and the subsequent demolition of one of those houses to provide an access road to 512 Nelson Road. Any or all of these solutions are available to cure a problem created by a decision taken by the Council in 1972 to allow the subdivision of 512 Nelson Road as it then was into its present form.

23 The Council, too, was well empowered to at any time since that decision was made to have made appropriate arrangements for road reservation under the terms of its planning scheme. It has not chosen to do so.

24 The case advanced by the Council that there was the possibility that Mr and Mrs Smith may be compensated at some stage, either now or at an undefined, unspecified time in the future, is so speculative and so vague as to not be a matter that this Tribunal considers it is appropriate to have regard to. In short, to do as the Council suggests would impose a significant financial impost upon Mr and Mrs Smith and confer upon the owners of 512 Nelson Road a significant financial advantage.

25 Such an approach is contrary to principle and not warranted or justified in the circumstances of this case."

"1 The Tribunal erred in law in that it found that there was no proper planning power to rectify the difficulty relating to access to 512 Nelson Road ('the adjoining block') when the provisions of s85(a) of the Local Government (Building and Miscellaneous Provisions) Act 1993 empowered the tribunal to consider whether the roads in the subdivision would not suit the public convenience or give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area and, if thought fit, refuse the application for the subdivision.

2 The Tribunal erred in law in that it ought to have found that the provisions of s85(a) of the Local Government (Building and Miscellaneous Provisions) Act 1993 provided sufficient power to refuse the application for the subdivision.

3 The Tribunal erred in law in finding that to impose a requirement on the 1st respondents to provide access to the adjoining lot was contrary to principle.

4 The Tribunal erred in law in applying a principle relating to the alteration of rights of property as between individuals, when the power given in s85(a) is a planning power requiring public considerations in the interests of the community.

5 The Tribunal erred in law in that it took into account considerations irrelevant to the issue under s85(a) that the roads in the subdivision would not suit the public convenience or give satisfactory intercommunication to the inhabitants both of the subdivision and the municipal area, namely:

(a) that the land in the adjoining lot would be available for strata titling;

(b) that there was nothing to prevent the owners of the adjoining lot or the appellant acquiring, in the open market place on the lots in the subdivision to enable access to the adjoining lot;

(c) that the appellant could acquire a lot with a house with frontage to Nelson Road and subsequently demolish the house to provide access to the adjoining lot;

(d) that the solutions referred to in paragraphs (a) to (c) of this ground were available to cure a problem created by a decision taken by the appellant in 1972 to allow the subdivision of the adjoining lot into its present form;

(e) that a requirement to provide access to the adjoining lot would impose a significant financial impost on the respondents and confer a significant financial advantage on the owners of the adjoining lot was contrary to principle."

22 The Council's arguments can be summarised as follows:

•

the Tribunal correctly determined that the Council was acting within its power, and not for some ulterior or extraneous purpose;

•

section 85(a) of the LG(BMP)A specifically enables refusal to approve a plan of subdivision if the planning authority is of the opinion that the roads will not suit the public convenience or will not give satisfactory communication to the inhabitants, both of the subdivision and the municipal area in which it is;

•

the provisions of the LG(BMP)A also contemplate refusals in circumstances in which the owner/developer may have to give up land or accept some limitation on the proposal - see s85(d)[2];

•

that Act also makes provision for the imposition of conditions as part of an approval, which may require the owner to sell land or set aside land to be acquired by the highway authority - see s83(1)[3];

•

the Tribunal erred in applying a principle, said to be derived from Coulson v Shoalhaven Shire Council (1974) 29 LGERA 166, that it was not a proper use of planning power to rectify an access difficulty for an adjoining landowner, and in the process provide an advantage to that owner at the expense of the proponent.

23 The relevant passage in Coulson's case appears in the passage of the Tribunal's reasons which I have set out above, but it is convenient to set out the essence of it. Helsham J said that planning principles involve public considerations which, in the interests of the community, include the placing of restrictions on the rights of owners, even to retain their land, but such considerations do not enable the alteration of the rights of property as between private individuals, and cannot be used to compel one owner to confer a private right of property on another.

24 The Council submits that Coulson's case, at the least, can be distinguished on its facts and because of the differences in legislative schemes. Coulson's case concerned the exercise of a discretion to impose conditions when granting approval for a subdivision. The legislative scheme set out matters which a council must take into account. These included existing and proposed means of access to each separate parcel, and the provisions of any planning scheme. A subdivision was approved subject to a condition that there be a right-of-way in favour of an adjoining allotment. Helsham J held that the question of securing access to private land outside the subdivided land did not fall within the first provision. The question then arose as to whether any provision of a planning scheme was relevant. An Interim Development Order was in force, but at its highest, it only provided that the council should have regard to planning principles which it considered relevant. It was in that context that Helsham J made the remarks quoted by the Tribunal.

25 Coulson's case was considered by the Queensland Court of Appeal in Proctor v Brisbane City Council (1993) 81 LGERA 3. That case also concerned questions of conditions imposed on the approval of a subdivision. The planning authority approved the subdivision but decided not to impose a condition sought by an objector, which would have provided a road access to his land (lot 1), across the subdivided land (lot 111). The issue was whether or not the condition was "relevant or reasonably required by the proposed subdivision" in accordance with the terms of the statute. On appeal to the Planning & Environment Court, the objector failed, and took his argument to the Court of Appeal. It was common ground in the appeal that the court below would have been wrong in confining its attention to issues of whether the objector's land was "sterilised or landlocked" by the development, about which there was debate.

26 It was argued that the condition of access should not have been imposed. Coulson's case was cited as authority for the point that to do so would be beyond power. In a joint judgment, Pincus JA, Thomas and McKenzie JJ set out the passage from Coulson's case under consideration, and at 402 - 403 said:

"It appears that the implication that such a condition amounts to compelling one owner to confer a private right of property on another is erroneous, as may be seen from the discussion of a similar point in Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 at 154; [1962] HCA 36; 8 LGRA 247 at 254-255. There, the High Court examined the proposition that imposing as a condition of approval that a subdivider transfer 20 acres to the Crown free of cost for park and recreation purposes was a confiscation. That was rejected (at 154; 254-255):

'If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the Act down in some fashion by appealing to a principle of construction that has to do with confiscation.'

Neither Coulson nor any other authority which we have found provides reason to doubt the Council's power to impose such a condition as the appellant seeks. It would be advantageous to the owner of lot 1 to have the access; the advantage is reflected in the appellant's offer to pay money towards the cost of provision of access. It may be said that if the desired access were provided, that would be a private advantage for the appellant arising out of subdivision, because no doubt the access could augment the value of his property, but the access would, it must be remembered, be a public, not a private road, and one which persons other than the appellant could use.

...... If the lot 111 development either sterilised lot 1 or landlocked it - assuming one can ascribe a sufficiently precise meaning to those notions - then there would surely be a good case for imposing the condition in favour of lot 1. But the obverse is not so, because an access condition not required to prevent sterilisation or landlocking might still be good." [My emphasis]

"It may be that a condition which is not reasonably required by the subdivision is nevertheless lawful, because relevant. Support for this view may be found in the approach of the High Court in Lloyd v Robinson where the statute did not expressly require that a subdivisional condition be relevant. The High Court upheld an 'open space' condition as being in the Court's opinion 'well within the limits of a proper understanding of the Board's functions under the Act' and 'entirely relevant to the application for approval'. The Court also said (at 154; 254):

'If it were correct the Board could never give an approval of a subdivision conditionally upon the applicant's giving up the land for any purpose, for roads, for public recreational areas, for foreshore reservation purposes, or for anything else, however relevant the condition might be to the observance of proper standards in local development.'

It may well be that a condition which is in no proper sense of the word 'required' by a subdivision is nevertheless relevant ... as falling within the proper limits of a local authority's functions under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as 'required' - reasonably or otherwise - by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located."

28 As to the respondents' arguments in this case, they strongly urge that the Tribunal's decision did not involve any error of law and was one plainly made on the merits, as par14 of the reasons shows[4]. They argue that:

•

the Tribunal's reasons should be read as a whole, and that par18 which makes reference to the comments of Helsham J in Coulson's case, should be construed as illustrative of the reasons the merits did not lie with a refusal. They say it is preferable to read pars20 - 25 inclusive as the detailed reasons, before reading the conclusion reached in par18.

•

in any event, the passage from Coulson's case is unexceptionable, and it is not a proper use of the planning power to rectify a difficulty facing the owner of No 512 in relation to future development, and one previously created by the Council itself.

29 In order for the appellant to succeed, a material vitiating error needs to be shown, and a mere suggestion of error is insufficient; Michaelis Bayley (Vic) Pty Ltd v Melbourne and Metropolitan Board of Works (1980) 44 LGERA 65 and Teston Investments Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 62 LGERA 346. My only concern is with the argued question of law, and I have no role to play in relation to the merits of the matter; Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275 at 279 [8] - [9] citing Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J at 40 - 41.

30 In determining the preliminary point, the Tribunal can be taken to have decided that the Council was not using the power "for some purpose other than, or ulterior to, the purpose for which it is conferred ..." see par10 of the Tribunal's reasons. That being the case, apart from focusing attention on the substantive issues, the reasons for the Council's refusal became of little consequence. The Tribunal was faced with the exercise of the discretion under the LUPA, s57, as affected by the relevant provisions of the LG(BMP)A. It was required to determine for itself whether it should approve, approve on conditions, or refuse the proposal for subdivision as put before it.

31 The Tribunal was thus required to consider the matters referred to in the LG(BMP)A, s85(a). A particular focus was on the second limb of that provision. The respondents did not argue before this Court that the notion of "inter-communication" did not include the present inhabitants of one lot, or the future inhabitants of that lot as it may exist in the future as a result of development.

32 At least in the case of subdivisions, it seems without doubt that in the absence of any invalidating improper purpose and subject to any particular statutory provisions, it is not contrary to principle for a planning authority to take action which requires the giving up of land or imposes a financial burden on a developer, to the advantage of an adjoining landowner. That is to say, a proper exercise of the power for planning purposes may have that result. To put it another way, the conferral of a benefit on an adjoining landowner by the proper use of a planning power, may simply be a consequence of the exercise of that power. That proposition is clear from what the High Court said in Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 at 154, as discussed in Proctor's case (above).

33 The cases of Coulson and Proctor were dealing with the imposition of conditions. It is well established that conditions imposed by planning authorities in relation to development approvals must be for a planning purpose and not for any ulterior purpose, they must fairly and reasonably relate to the development, and they must not be so unreasonable that no reasonable planning authority could have imposed them: Newbury District Council v Secretary of State for the Environment [1981] AC 578 and Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30. The High Court in Lloyd v Robinson (above at 154) made it clear that in the case of a subdivision, the granting of approval was a privilege and that conditions may be the price paid for that approval. In those circumstances it is said not to be unreasonable to require a developer to make up its mind whether to incur additional expense in order to achieve what is necessary to satisfy the planning authority. Ambulatory conditions might properly be imposed to achieve the planning authority's objective: Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VR 781 and Gosford Shire Council v Anthony George Pty Ltd (No 2) [1968] 2 NSWR 546.

34 Speaking more broadly, it is established that, in general, factors such as the financial means of an applicant and the viability of the proposed project are not relevant planning considerations: Gosford Shire Council v Anthony George Pty Ltd (No 2) (above) and City West Housing Pty Ltd v Sydney City Council [1999] NSWLEC 246 at [131] - [137]. But this may not be so in cases of community oriented projects - R v Westminster City Council; Ex parte Monahan [1990] 1 QB 87; Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119 at [36] - [37], or where particular provisions of a statutory scheme make them relevant - City West Housing Pty Ltd v Sydney City Council (above); Ingram v Western Australian Planning Commission [2003] WASCA 77.

35 To return to what should be made of Coulson's case, in Proctor the court said that neither Coulson nor any other authority which had been found, suggested that the planning authority did not have within its scheme, the power to impose a condition by which the developer had to provide access to an adjoining lot. The same can be said of the statutory scheme within which the Tribunal was operating in this case. Further, it may well be that the comments of Helsham J in Coulson should be taken as no more than referring to improper purpose in the true sense, and to the invalidity of any tainted decision. That would seem to arise from the passage immediately following the one relied on by the Tribunal. The further comments of Helsham J (at 172) are as follows:

"I have not overlooked that aspect of the condition of approval which requires the plaintiffs to grant an easement in gross to the defendant council. If this were intended to spread some patina of public involvement over what is no more than the attempted use of power to compel the grant of a private right of way, then it achieves nothing. There is no suggestion at all that any town or country principles are involved in the council obtaining a right of way to this piece of private land. No claim that any such principles were involved was advanced." [My emphasis]

36 In granting the permit, the Tribunal took the view that:

•

(relying on Coulson's case) it was not a proper use of planning power to rectify the difficulty for an adjoining landowner by endeavouring to require the respondents to provide access at the cost of one of their lots;

•

to refuse to grant the permit on the basis that the respondents refused to submit a proposal which provided a road to the boundary of No 512, was to compel the respondents to confer a private right of property on the owner of No 512;

•

to do as the Council suggested, imposed a significant financial impost upon Mr and Mrs Smith and conferred upon the owner of 512 Nelson Road a significant financial advantage;

•

this approach was "contrary to principle and not warranted or justified in the circumstances of this case".

37 The question for the Tribunal was whether or not the permit should be granted. The imposition of a condition of access to No 512 was opposed. In order to properly determine the matter, the Tribunal was to have regard to all relevant considerations. Those considerations included the fair, orderly and sustainable development of the land. In particular, the Tribunal had to consider whether the roads set out in the proposal would give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area in which it was, within the meaning of the LG(BMP)A, s85(a). Such considerations and the pursuit of proper planning purposes might give rise to a refusal to grant the permit because of future possible access difficulties to No 512. That this in turn might, in a practical sense, require or compel the respondents to modify their plan at their cost may be the price that has to be paid for approval. In the absence of improper purpose, that outcome is merely a consequence of the exercise of the power. It also has to be borne in mind that the benefit of the approval runs with the land, and that the approval might not be acted on for some considerable time and by subsequent owners.

38 I am satisfied from the reasons that the Tribunal directed itself as a matter of law, that the planning power could not be properly used in such a way which may ultimately impose a burden on the developer and consequentially confer an advantage on an adjoining landowner, in the ways involved. I cannot accept the argument that the statements of principle made by the Tribunal should be viewed simply as illustration or illumination of its views as to the merits. The Tribunal did not appear to embark upon any real consideration of the factual issues and planning considerations raised by the LG(BMP)A, s85(a). It is plain from the language used that the Tribunal treated itself as bound in principle to grant the permit, because to do otherwise would effectively force the respondents into providing an acceptable access to No 512. In my view, applying the comments in Lloyd v Robinson (above) and for the reasons which I have set out in the discussion of the applicable principles, the Tribunal erred in its approach in law.

39 It follows from what I have said that grounds 1 to 4 inclusive of the appeal are made out. I should say something separately about ground 5 which asserts that the Tribunal erred in taking into account five considerations which were irrelevant to the issue under the LG(BMP)A, s85(a). As will be recalled, the first three considerations are that No 512 would be available for strata titling, that the owner of No 512 or the appellant could acquire one of the respondents' subdivided lots for the purposes of access, or the Council could acquire a lot with a house with frontage to Nelson Road and demolish it for access.

40 In a real sense, it may be unnecessary to consider this ground. This is because, as I have said, the Tribunal did not appear to consider the issues raised by the LG(BMP)A, s85(a). The Tribunal made several references to imposing a significant impost on the respondents to the advantage of the owner of No 512. There is an erroneous reference to a refusal to grant the permit being tantamount to compelling one owner to confer a private right of property on another.[5] That, together with the discussion of strata titling and the alternate means by which the Council or the owner of No 512 could secure better access to that lot, can reasonably be viewed as the factual basis upon which the Tribunal decided, as a matter of purported principle, that it was unnecessary and undesirable to refuse the permit.

41 If it be correct that the Tribunal gave due consideration to the s85(a) issues, then some discrimination in approach to the five asserted irrelevant considerations is necessary. Section 85(a) involves an examination of whether the roads of the subdivision will suit the public convenience or will give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area in which it is. If not, the permit may be refused. That exercise involves an assessment of what is, and what is not, convenient to the public. No doubt "the public convenience" is not merely a contemporary matter and has a future aspect to it, in the sense that potentialities have to be looked at. Similarly, the "inter-communication" issue requires an assessment of the number and distribution of the inhabitants, both presently and as far as can be reasonably predicted in the future.

42 As to the first three alleged irrelevant considerations, I am not prepared to say that a proper consideration of the issues arising under s85(a) would preclude such matters. The focus is on the suitability and effect of the roads of the subdivision. The various ways in which No 512 might be developed, and the differing consequences, may well be relevant in that exercise. Further, in the investigation of the suitability and impact of the roads of the subdivision of No 502, I am not persuaded that the practicalities and realities of how access might otherwise be obtained to any development on No 512, would not be relevant.

43 The last two considerations said to be irrelevant to the issue under s85(a) are that the solutions to the access problems of No 512 were put forward to cure a problem created by earlier planning decisions of the Council, and that to provide access to the adjoining lot would impose a significant financial impost, and at the same time confer a financial advantage on the owner of No 512. For the reasons which I have already given in relation to grounds 1 to 4, I agree that these matters are irrelevant to the proper determination of issues under s85(a), and I would add, to the broader exercise facing the Tribunal, excluding of course, any arguments of improper purpose.

44 For those reasons, I allow the appeal and set aside the orders of the Tribunal made on 15 May 2009. I order that the appeal to the Resource Management and Planning Appeal Tribunal be reheard before a differently constituted tribunal.

[1] 59 Failure to determine an application for a permit

(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) or 58(2) is deemed to constitute a decision to grant a permit on conditions to be determined by the Appeal Tribunal.

[2] 85 Refusal of application for subdivision

The council may refuse to approve a plan of subdivision if it is of the opinion -

(d) that the layout should be altered to include or omit -

(ii) alleys or rights of way to give access to the rear of lots; or

(iv) littoral or riparian reserves of up to 30 metres in from the shore of the sea or the bank of a river, rivulet or lake; or

(vi) where the ground on one side is higher than on the other, wider roads in order to give reasonable access to both sides; or

(vii) licences to embank highways under the Highways Act 1951; or

(viii) provision for widening or deviating ways on or adjoining land comprised in the subdivision; or

(ix) provision for the preservation of trees and shrubs.

[3] 83 Approval of plan of subdivision

(1) Subject to section 116, the council, as a condition of its approval of a plan of subdivision, may -

(a) require the owner to sell to it for a nominal consideration any land shown on the plan as set apart for a public open space or for drainage purposes; or

(b) require the owner to mark on the plan in respect of any proposed way, the words "to be acquired by the highway authority".

[4] "The Tribunal is ... unequivocally of the view that there is no merit in the Council's position. All of the evidence points to the fact that the only appropriate decision in the circumstances ... is one authorising the grant of a permit."

[5] The access proposal from the respondents' subdivision to the boundary of No 512, would give the owner a public road to his boundary, but he would not acquire any proprietary interest.