Local Government - Town planning - Consent and approval of councils (development and like application) - Matters for consideration of council - Generally - Discretion of consent authority.

Land Use Planning and Approvals Act 1993 (TAS).

Fawcett Properties Ltd v Buckingham County Council [1961] AC 636; Twenty Seven Properties Ltd v Corporation of Noarlunga & Ors (1975) 11 SASR 188; Corporation of the City of Unley v Claude Neon Limited & Anor (1983) 32 SASR 329; DOMA Pty Ltd v City of Hobart [1983] Tas R 132; Anglo-United Securities Pty Ltd & Anor v Willoughby Municipal Council (1964) 11 LGRA 44, referred to.

Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17, followed.

Judgment Number: [2001] TASSC 53

1 The appellant challenges a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") granting a permit to the Hobart Christian Life Centre ("the Centre") to change the use of a residence at 10 Petchey Street, Bellerive ("the property") from a dwelling to a church and ancillary uses.

2 The property is roughly rectangular in shape. It fronts on Petchey Street and is surrounded on its other three sides by property owned by the Centre upon which it conducts a church and related activities. The property is within the area controlled by the Eastern Shore Planning Scheme 1963 ("the Scheme"). The property and its surrounding neighbourhood are zoned Residential D. The category of use designated as "Church" by the Scheme is discretionary in the Residential D zone.

3 Having entered into an agreement to purchase the property, the Centre lodged a development application with the Council seeking a permit to change its use. The application included the following information:

* "Proposal Description: Use of home as annexe to existing church at 8 Petchey St."

* "Use of Building: Currently a home, proposed for use as part of church."

4 The Clarence City Council ("the Council") approved the application and granted a permit subject to conditions which did not involve any variation to the change of use sought, that is, a change of use from a dwelling to a church and ancillary uses.

5 The appellant and several others appealed against the Council's decision to the Tribunal pursuant to the Land Use Planning and Approvals Act 1993 ("the Act"), s61. As allowed by the Act, s16(1)(e), on such an appeal the Tribunal may hear the matter afresh and take into account evidence not put before the Council. On the hearing of the appeal, evidence was adduced in the interests of the Centre, the Council and Dr Howie and his fellow appellants. Before the Tribunal the Council was represented by one of its officers, Michael Shield, and the appellant and his associates were represented by a town planner, Neil Shephard, who also gave expert evidence in their interests. Mr Shephard tendered a written proof of evidence and submitted himself for cross-examination. In his proof of evidence, Mr Shephard, in substance, said that the primary use proposed for the property was not use as a church, but use for purposes incidental to the existing church on the Centre's adjoining land at 8 Petchey Street. He further contended that the incidental purposes for which the Centre proposed using the property fell within the category of use designated "General Offices" in the Scheme, a use which was prohibited in the Residential D zone. When Mr Shephard gave evidence he was questioned about this proposition by Mr Shield. Their exchange was as follows:

"MR SHIELD: In terms of the bottom of that page nine [the section of Mr Shephard's proof of evidence which dealt with this matter], you talk about the question of prohibited uses and reasonably incidental things. If a condition were placed on it that the titles were to be made into one, would that take away the question of the incidental use - you then become part of the one title and therefore the use would be on a single title - not two - would that take that scenario away?

MR SHEPHARD: I suppose as a matter of technicality, it is a question of which is supposed to happen first. In practical terms, yes, it would take away that issue."

6 In the course of Mr Shield's closing submissions, the Chairman of the Tribunal raised Mr Shephard's contention that the proposed use of the property, when considered in isolation from the Centre's use of the adjoining land, fell within the prohibited category of use designated "General Offices". In substance, Mr Shield said the problem would be overcome if the title to the property was linked to that of the Centre's adjoining land. The Chairman suggested that a condition requiring the adhesion of the title of the properties would resolve the problem and Mr Shield agreed. Mr Ed Broeke, an elder of the Centre, made submissions to the Tribunal on behalf of the Centre. In the course of those submissions, the Chairman asked Mr Broeke what his view was about combining the titles of the properties. Mr Broeke said the Centre would not be opposed to that course.

7 After reserving its decision, the Tribunal handed down written reasons for approving the proposed change of use and directed the Council to issue the necessary permit subject to amended and additional conditions, the only relevant one for present purposes being:

"8 This permit is not to take effect until the title of No 10 Petchey Street has been adhered to the title of No 8 Petchey Street."

8 Pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25(1), the appellant may appeal the decision of the Tribunal on a question of law. There are eight grounds of appeal. The first ground was abandoned. I turn to the remaining grounds.

"2 The Tribunal erred in law in that it approved a use constituting 'general offices' under the City of Clarence Eastern Shore Planning Scheme 1963 ('the Scheme') which was a prohibited use within the relevant residential D zone."

10 The development application sought approval of the "use of the home as (an) annexe to (the) existing church" and included the following as to the use of the building, "Currently a home, proposed for use as part of church". Pursuant to the Scheme, the Council had a discretion to approve the use of the property as a church. Such an approval carries with it authority for the use of the property for any use reasonably incidental to its use as a church, the Scheme, cl 3.4. The change of use sought was to allow the property to be used as a church and for reasonably incidental purposes. That is the change the Council permitted and the change the Tribunal confirmed. The permit expressed it to be a "change of use from dwelling to a church and ancillary uses". The words "and ancillary uses" are otiose. The categorisation of the approved change of use for the property as a "Church" carried with it authority to use the land for reasonably incidental purposes. Whilst many of the incidental uses proposed for the property came within the "General Offices" category of use, this did not require the Tribunal to deem the application to be for a change to that category of use. There was no suggestion that the Centre was not bona fide seeking a change to the "Church" category of use. That was a change which the Council and the Tribunal had a discretion to allow and that is the change that was approved. The Tribunal did not approve changing the use of the property to the "General Offices" category of use. This ground fails.

"The Tribunal erred in law in that it approved a development and use which had not been applied for by the secondnamed respondent."

12 As observed when dealing with ground 2, the change of use sought by the Centre was a change which enabled the property to be used as a church and for reasonably incidental purposes. It was so understood by both the Tribunal and the appellant. The appeal lodged by the appellant and others when appealing against the Council's grant of a permit to the Centre described the matter which was the subject of appeal as being a "change of use from dwelling to church & ancillary uses". The grounds of appeal pursued by the appellant before the Tribunal did not involve any suggestion that the use that had been authorised by the permit was other than that which had been sought in the Centre's development application. The Tribunal, in effect, confirmed the permit granted by the Council subject to amended and additional conditions which did not bear on the change of use which was being authorised. The Tribunal did not approve a use which had not been applied for by the Centre. This ground is dismissed.

"The Tribunal erred in law in granting a permit contingent upon the adhering of the titles of 8 and 10 Petchey Street."

14 The power to impose conditions when granting a development application is fundamental to town planning. The Scheme, cl 5.3.1, empowers the Council, when approving a permitted or discretionary development application, to impose such conditions as it may think proper relating to all or any of the matters referred to in cl 5.2. A broad variety of matters are referred to in that clause, many of which are themselves expressed widely, for example, cl 5.2.8 which refers to "the circumstances of the case and the public interest". The Council's power to impose conditions is also covered by the Act, ss51(3A) and 57. The Act, s62(1)(c), empowers the Tribunal, on an appeal against a grant of a permit, to direct the planning authority to grant the permit on specified conditions. Notwithstanding the apparently unfettered width of the power conferred on the Tribunal, it is well established that so wide a power must be read down and is a power to impose conditions with reference to matters reasonably capable of being regarded as relevant to the implementation of planning policy and the purposes of the Act, Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 at 684 - 685; Twenty Seven Properties Ltd v Corporation of Noarlunga & Ors (1975) 11 SASR 188; Corporation of the City of Unley v Claude Neon Limited & Anor (1983) 32 SASR 329 and DOMA Pty Ltd v City of Hobart [1983] Tas R 132. The Tribunal is empowered to direct the Council to grant the permit on specified conditions. It follows from this, that the Tribunal should only direct the Council to impose terms which are within the Council's power, in this instance, terms and conditions which relate to the matters referred to in the Scheme, cl 5.2. It is manifest from the Centre's application to the Council that its core reason for seeking a change of the use of the property to that of a church was its wish to involve the property in its conduct of a church on No 8 Petchey Street. In this situation it was appropriate for the Tribunal to require the Council to impose a condition which obliged the Centre to adhere the title to the property to the title of No 8 Petchey Street and thereby restrict the Centre's capacity to deal with the property once the applied for change of use was allowed. It was open to the Tribunal to conclude that this requirement was in the interests of the neighbourhood and was consistent with the town planning objectives of the Scheme. Whilst the condition imposed had no impact on the use of the adjoining land, which itself was not the subject of the development application, I note that a condition with that effect was imposed in Anglo-United Securities Pty Ltd & Anor v Willoughby Municipal Council (1964) 11 LGRA 44, where Else-Mitchell J approved a change of use in relation to land on the condition that adjoining land, not the subject of the application, ceased to be used for a purpose deemed unsuitable.

15 The condition which the Tribunal required the Council to impose in relation to the adherence of the titles was within its power.

16 A further basis upon which Council for the appellant submits that the imposition of the condition was unlawful is that it lacked finality and a certainty. As to these asserted requirements in the context of the decisions of planning authorities the following passage from Winn v Director General of National Parks and Wildlife & Ors [2001] NSWCA 17, Spigelman CJ, pars12 - 19 is instructive:

"[12] The common law has not developed a general principle that the exercise of a statutory power must be 'certain'. (See King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 194-195; Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210 at 227 - 228; Qiu v Minister for Immigration (1994) 55 FCR 439 at 447; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 42). The issue is one of construction of the particular statute under consideration and the application of the statute to the circumstances of the particular case.

[13] A purported exercise of the power in s91 of the Environmental Planning and Assessment Act will not be valid unless the decision constitutes a 'consent'. Furthermore, a purported exercise of this power will not be valid unless it constitutes a 'consent to that application'.

[14] The ancillary power to impose conditions cannot be exercised in such a manner as to have the consequence that the exercise of the power fails to answer the description of a 'consent' or a 'consent to that application'. (See Television Corporation Ltd v Commonwealth [1963] HCA 30; (1963) 109 CLR 59 at 41, 83; Genkem Pty Ltd v Environment Protection Authority supra at 44B-F, 49B-G; Evans v Western Australia [1997] FCA 741; (1997) 77 FCR 193 at 211-214).

[15] This process of statutory construction has sometimes been expressed in the terms of a 'principle of finality', peculiarly applicable to the construction of planning statutes. (See eg City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 15-16; Scott v Wollongong City Council (1992) 75 LGRA 112 at 115-118; McBain v Clifton Shire Council [1996] 2 QdR 493 at 496; Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1996] 1 QdR 437 at 452; 'Administration of Finality Principle' (1996) LGPLG 136). Such terminology must be approached with care. The issue always turns on the construction of the particular statute.

[16] In Mison, this Court held that the condition there under consideration was such that:

(i) The consent was not a 'consent' by reason of the significance of the issue left for further determination (at 738 - 739 per Priestley JA and at 739G-740B per Clarke JA); and

(ii) The consent was not a 'consent to the application' because it left open the possibility that the further determination would significantly alter the development for which the application was made (at 737A-D per Priestley JA and 740E-F per Clarke JA).

[17] However, as Mason P, with whom Sheller JA agreed, said in Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 at [117]:

'Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited.'

[18] Indeed, as Samuels JA said in Scott v Wollongong City Council supra at 118:

'... it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or offences to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of a proposal with absolute precision.'

[19] As Mason P pointed out in Transport Action Group v Road and Traffic Authority supra at 117 Mison itself 'recognised that questions of degree are involved'. The determination of whether a condition deprives a purported consent of the character of a 'consent' or of a 'consent to that application' will often be difficult."

17 The condition in contention makes the change of use contingent upon the adherence of two titles. This condition does not defer any issue relating to what is allowed by the approved change of use and it does not give any third party authority to vary the approved change of use. The straightforward effect of the condition is that the permit will not take effect unless the titles are adhered. If they are not adhered the existing use of the premises as a dwelling will not change. If they are adhered the permitted use of the premises will change to that of a church. The condition does not lack finality or certainty. Ground 4 is dismissed.

"The Tribunal erred in law in that it determined that the proposed use is allowable as an ancillary use when that was not the proposal before it."

19 The Tribunal did not misconceive the nature of the application that was before it and allow it as an application for the ancillary use of the property. The Tribunal clearly recognised that the application before it was to change the use of the property to that of a church and ancillary uses and that is the change of use which it expressly allowed. This ground is without substance and is dismissed.

"6 The Tribunal erred in law in that it failed to afford natural justice and procedural fairness to the appellant in that it determined the proposal as being 'ancillary administrative' without raising this issue with the appellant.

7 The Tribunal erred in law in that it failed to afford natural justice and procedural fairness to the appellant in that approval was granted upon a ground which was not raised with the appellant viz that the subject property of the application being 10 Petchey Street being adhered to another property owned by the secondnamed respondent, 8 Petchey Street."

21 Ground 6 must fail as the Tribunal did not determine the proposal as being "ancillary administrative". The proposal was correctly identified as being for a change of the use of the property to that of a church and it was determined on that basis. As to ground 7, it is apparent from the Tribunal's imposition of a requirement that the change of use be conditional upon the adhesion of the titles that this matter was of some significance to its decision. The Tribunal must observe the rules of natural justice, Resource Management and Planning Appeal Tribunal Act, s16(1)(d). Consistent with the requirements of natural justice, matters of significance to the Tribunal's decision should be canvassed with the parties. In Kain v Glamorgan/Spring Bay Council & Ors (1996) 90 LGRA 326 at 333, Wright J observed:

"There is clear authority for the proposition that an adjudicating body such as the Tribunal is obliged to raise an issue upon which it proposes to decide an appeal with all relevant parties before deciding the case upon such a basis if that issue has not been raised during the course of proceedings before it. To do otherwise is to breach the rules of natural justice: see City of Brighton v Selpam Pty Ltd [1987] VicRp 5; (1986) 61 LGRA 167 and Rosebud Village Pty Ltd v Amos and City of Doncaster and Templestowe (1989) 68 LGRA 403."

22 In this case, the possibility of the title of the property being adhered to the title of 8 Petchey Street, was raised in the course of the cross-examination of Mr Shephard, the appellant's representative and expert witness before the Tribunal. Mr Shephard, in substance, acknowledged that the adherence of the titles would take away the problem referable to the incidental use of the property. In the course of addresses, the Chairman of the Tribunal raised the imposition of the adhesion condition with the Council's representative, Mr Shield, and with the Centre's representative, Mr Broeke. This was done in the presence of the appellant's representative, Mr Shephard. It was not raised with Mr Shephard in the course of his address. There was no reason to do so. He had commented on it when giving evidence. The appellant, by his representative, had notice that the Tribunal might make the adhesion of the titles a condition of the approval. He was not denied natural justice. Had I decided otherwise I should say that I would have found it difficult to conclude that this error warranted setting aside the Tribunal's decision. That step should only be taken if the Court is satisfied that had the affected party been heard on the matter in issue, there is a possibility that it would have made a difference to the Tribunal's decision. A rehearing should not be ordered if the same result is inevitable, Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145. Nothing put before me on behalf of the appellant suggests that he could have called evidence about the proposed adhesion of the titles or had made submissions referable to the same which might have resulted in a different outcome.