Administrative Law - Judicial review - Reviewable decisions and conduct - Grounds of review - Error of law - Grant of building permit - Building Appeal Board not to grant permit if not satisfied of specified matters - Specified matters included whether planning permit required and had been granted - Question of whether permit validly granted by council - Whether Board failed to exercise its jurisdiction by not deciding the question for itself - Whether Board erred as to finding that legally open for council to grant permit.

Building Act 2000 (Tas), ss71 and 73.

Building Regulations 2004 (Tas), reg18(1)(b).

R v Resource Management and Planning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc [2000] TASSC 19; (2000) 107 LGERA 196, applied.

Environment and Planning - Development control - Classification of uses - Generally - Primary and secondary use classes - Use acknowledged in development application as secondary use - Development did not comply with standards for secondary use - Ambiguity in application - Open to treat use as ancillary to primary use - Whether planning authority bound to assess application on secondary use basis.

City of Springvale v Heda Nominees Pty Ltd (1982) LGRA 298; Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157; Kain v Glamorgan Spring Bay Council (1996) 90 LGERA 326, applied.

First Respondent: Director of Public Prosecutions

Third & Fourth Respondents: Crisp Hudson & Mann

Judgment Number: [2010] TASSC 29

v BUILDING APPEAL BOARD, WARRATAH-WYNYARD COUNCIL,

1 This is an application under the Judicial Review Act 2000, for review of a decision of the Building Appeal Board ("the Board"). (On this occasion the Board was constituted by a single member being the chairperson, but for the sake of convenience I will continue to refer to the Board as such.) The effect of the Board's decision was to refuse to the applicants a building permit under the Building Act 2000.

2 The applicants live at Crayfish Creek in north-western Tasmania. They also own land some distance away at Moorleah on which they carry out animal farming and orcharding. They want to build a residence on the Moorleah property and the building permit which they sought was to enable that to be done.

3 The history of the matter leading up to the appeal to the Board is rather complex. I will later need to examine in greater detail each of the steps, but the following is a summary of what occurred:

•

In September 2008, the applicants applied to the Waratah-Wynyard Council ("the Council") for the granting of a permit under the Land Use Planning and Approvals Act 1993 ("the LUPA"), s51, for the construction of a dwelling on the property at Moorleah. The relevant planning scheme was the Waratah-Wynyard Planning Scheme 2000 ("the Scheme") and the property is in the Primary Industries Zone.

•

Mr and Mrs Purton, who live next door to the Moorleah property, objected to the application on the basis that the proposed dwelling was closer to the boundary than was permitted, and that no setback waiver should be granted.

•

On 21 November 2008, the Council granted a planning permit for the construction of a dwelling with the setback waiver, but subject to a number of conditions.

•

The Purtons appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal"), against the grant of the permit, although the grounds of appeal were confined to the issue of the setback waiver.

•

Following submissions from the parties on the point, on 26 February 2009 the Tribunal determined that the permit issued to the applicants "was plainly invalid", the consequences being said to be that the appeal was invalid and that the Tribunal had no jurisdiction to further hear and determine the matter. (I should note at this point that the Council had urged this view on the Tribunal.)

•

In May 2009, acting in reliance on the planning permit which had been granted, the applicants applied to the Council's permit authority under the Building Act for a building permit relating to the proposed dwelling.

•

The permit authority refused the application for the building permit.

•

The applicants appealed to the Board. The Board had to consider whether a planning permit was required and had been granted.

•

Without conducting a formal hearing, but having received some written submissions, the Board rejected the appeal. After referring to the Tribunal's decision that the grant of the permit was a nullity, it determined that "the requisite planning permit had not been granted".

4 The document entitled "Grounds of Review" which was filed, is more of a chronology than anything, and is of no great assistance. Of the available grounds under the Judicial Review Act, s17, the applicants say that the making of the decision by the Board was an improper exercise of the power conferred - s17(2)(e), that the decision involved an error of law - s17(2)(f), that there was no evidence or other material to justify the making of the decision - s17(2)(h), and that the decision was otherwise contrary to law - s17(2)(i). Essentially though, there are three issues which are raised by the applicants' oral arguments. Those issues are:

•

whether the Board determined for itself the question of whether a permit had been granted, that is, the issue of the validity of the planning permit which had been issued by the Council; or whether it simply adopted the decision of the Tribunal without independent consideration;

•

alternatively, whether the Board erred in law relation to its finding that the permit was a nullity;

•

the making of a declaration as to the rights of the applicants in relation to the permit, in the sense of whether it is valid.

5 The first issue requires consideration of the relevant provisions of the Building Act, and the framework within which the Board operates. The second and third issues require a consideration of the material which was before the Council in relation to the application for the planning permit, together with an examination of the relevant provisions of the Scheme. The focus of much of the argument was on the terms of the application for the planning permit and how it ought to, or could, have been assessed under the Scheme. I think it is convenient if I deal with all of this in chronological order. That is, I will further detail the relevant events and set out the applicable legislation and the relevant provisions of the Scheme as I proceed.

6 Zones and use classes are dealt with in Part 3. As noted, the applicants' land is in the Primary Industries Zone. Use classes are set out in cl 3.1.3:

"3.1.3 Use classes designated for use in this planning scheme are:

7 These use classes are defined in Part 4. Relevantly, "Residential Use Class" ("RUC") is defined as:

"Use of land for one or more dwellings providing predominantly longer term accommodation.

It includes but is not necessary limited to:

boarding houses, group houses, communal dwellings, conjoined dwellings, apartments, flats, multiple dwellings, dwellings which may include an ancillary flat and retirement villages."

"Use of land for primary production which involves the use, and the planting, growing, harvesting or extraction of natural resources and processing of primary produce.

It includes but is not necessarily limited to:

animal husbandry, cropping, forestry, extraction of rocks and minerals, grain and vegetable production, grazing, horticulture, marine farming and aquaculture. It includes buildings and works directly associated with these uses."

9 Further relevant provisions of Part 3 are as follows:

"3.1.5 Notwithstanding that a use falls within a use class that can occur within a zone, an application for use or development must also show that it can perform in relation to the planning scheme standards.

3.1.6 Within each zone, each use class is designated as either:

use classes which contain uses that, generally, are in accordance with the values and intent of a zone; or

use classes which contain uses which may be in accordance with the values and intent of a zone; or

use classes which contain uses that are not in accordance with the values and intent of a zone.

3.1.7 An application for development must specify the proposed use(s) of the land or buildings comprising the development.

3.1.8 Each use or change to a new use must be categorised within a use class. Where there is doubt as to the categorisation of a use Council must categorise it within the most appropriate use class taking into account:

(a) the intent and objectives of the planning scheme; and

(b) the intent and values of the zone in which it is to take place."

10 "Planning Scheme Standards" are defined in cl 3.2.2 as follows:

those matters set out in a zone or schedule which are objective criteria designated as an acceptable means of meeting the corresponding objective.

those matters set out in a zone or schedule which are subjective criteria used to assess performance against the corresponding objective."

11 Of particular significance to the arguments are the following clauses:

"3.3.3 Discretionary use or development

...

3.3.5 Council must refuse an application that is unable to demonstrate that it can perform in accordance with any relevant planning scheme standard.

...

3.4 Use or development within more than one use class

Where a proposed use or development constitutes an integral and subservient part of an existing or proposed use or development, it will be treated as part of that use or development categorized in Part 4 of this planning scheme."

12 Part 9 of the Scheme deals specifically with the Primary Industries Zone. The relevant parts are as follows:

9.4 Standards for use or development in the Primary Industries Zone

9.4.1 Standards for use or development in the Primary Industries Zone

Objective: To ensure that Secondary Uses are located where they do not unnecessarily increase the number or length of private vehicle journeys, and do not prevent or make more difficult the attainment of the Planning Scheme Strategies for:

(a) focussing residential, commercial and industrial use and development in serviced or other identified nodes of settlement;

(b) encouraging consolidation of industrial and commercial use and development within identified areas, where access to the State's transport system is available, where a co-ordinated approach to the design, layout and landscaping of development can be achieved, and where proximity to the workforce is an advantage; and

(c) ensuring the community's investment in infrastructure is fully utilised, and that any extension is properly staged and planned.

9.1 The extension or redevelopment of an existing lawful secondary use.

9.1 A new secondary use or development must demonstrate that it is consistent with the objectives above.

9.2 Where the use or development is for a single house on a lot previously zoned Rural-Residential (Wynyard s46 Planning Scheme) or Low Density Residential, (Somerset Planning Scheme 1966, Wynyard Planning Scheme 1966).

(a) has been previously approved for residential purposes pursuant to the Local Government Act 1962: or

(b) is a lot located within the gazetted boundary of the Town of Waratah that existed as a separate title before July 1, 2006 and has an area less than 5000 square metres:

and in either case it can be demonstrated that the use or development of that lot:-

(i) will not fetter existing or potential Resource Development uses or developments; and

(ii) will not prejudice attempts to consolidate residential development into identified nodes; and

(iii) there will be no additional costs on the Community for the provision of infrastructure.

13 As to the application for the permit, the provisions of the Scheme operated in the following way. If the dwelling were categorised as within the Residential use class, it was a secondary use in the Zone, and it had to comply with Issue 9.0 of Part 9.4.1 - "Location of Secondary Uses". If it could only be so categorised and could not satisfy the Scheme Standards - (Acceptable Solutions ("AS") or Performance Criteria ("PC") - it had to be refused because of cl 3.3.5. On the accepted construction of those Standards, the development did not qualify. If the dwelling could have been characterised as "ancillary", as an integral and subservient part of the existing use (which plainly fell within the Resource Development use class), then by virtue of cl 3.4.1 it would be treated as part of that use class. On that basis, it was permitted as of right, subject to the setback issue.

14 The application was made on a Council "Development Application" form. In par1 of the form, an applicant was to show "the Development Address", which the applicants showed as 301 Pages Road Moorleah. Paragraph 5 of the printed form deals with "Proposed Development (Fully describe intended use of the land or premises)". The applicants inserted the word "Dwelling". Paragraph 6 makes provision for supporting information "if necessary to explain special features of the proposal". The form makes specific reference to plans, specifications, purpose of buildings, construction materials and similar matters, but the applicants did not complete this part. The final page of the form is specified for office use only. I will set out the relevant printed parts, with the handwritten responses by the Council officer shown in italics:

"16 Discretionary Use Yes

17 Description Dwelling - Primary Industries Zone, Setback Waiver

20 Zoning of Property Primary Industries."[1]

15 Submitted with the application was a report dated "December 2005" [sic] prepared by a planning consultant, Irene Duckett. This document assumes some importance in the arguments which were put. In a background section, Ms Duckett said:

"• The application is for a dwelling, which is a secondary use, and not ancillary; The planning scheme makes provision for a residential use as a secondary use in its own right. It is not proposed that this application is for an ancillary dwelling, but the presence of the dwelling on the site will enable the remainder of the site to be maintained and farmed more intensively and sustainably than is currently the case.

•

The proposed dwelling will not fetter the use of the land for agricultural use, and will in fact improve the agricultural productivity and sustainability of the lot; The proposal will allow for the site to be more responsibly used in accordance with the site characteristics and land capability. The current activity of grazing does not allow a commercially viable or sustainable use in the land. More intensive use is not possible without the owners being able to live in closer proximity to manage the activities on the site."

Ms Duckett then went on in the report to address a number of issues relating to secondary uses within the context of the provisions of the Scheme. She argued that the provisions of the Scheme relating to secondary uses had been regularly "misapplied", and put forward an argument about the construction of the Scheme standards as they related to Secondary uses in the Primary Industries Zone. Ms Duckett contended that on the basis of her construction, the applicants' proposal complied with the Scheme standards.

16 In a letter dated 8 September 2008 which accompanied the formal application form and Ms Duckett's report, the applicants said:

"As council is aware we have a shed 16 x 9 metres with toilet and washbasin installed. The shed (workshop-barn-storage) also includes septic tank and professionally built water storage tank (10,000 gallons).

There is also an orchard containing 60 fruit trees plus more to plant, a 4 x 4 metre hothouse and a 0.1 hectare vegetable garden.

We believe a residence on this property would help the following:

1 Animal welfare is a key issue especially when cows are calving and sheep are lambing or an animal is sick and has to be moved every couple of hours.

2 Theft and vandalism are a real problem.

3 If the blocks are neglected and the weeds and vermin take over problems are caused to nearby properties. This has happened in the past when people just walk away and shut the gates.

...

The dwelling does not change the use of the land from rural to residential - a house might only take up ¼ of an acre and can only enhance the primary production capability of the land.

If all small property owners have to walk away from their land then there is no benefit to our community or environment."

17 The Council had before it a report from its Consultant Town Planner which contained a reference to the part of Ms Duckett's report set out above, with the comment that "The application will therefore be assessed on the basis that it was submitted, that the proposed dwelling should be considered as a secondary use rather than an ancillary use." That approach is of significance in this application. The report recommended that the permit be refused, one of the grounds of which was that the proposal did not meet the "provisions of Section 9.4.1 Issue 9.0 'Location of Secondary Uses' - Part 9 of the ... Scheme."

18 I have already noted that the Purtons objected to the application. No other objections seem to have been received. There is nothing in the material which I have which casts any light at all on the reasoning processes of the Council leading to the granting of the permit.

19 Following the Purtons' appeal to the Tribunal, the Tribunal raised through its Registrar, a "fundamental question on the application in regards to the PAL policy [sic] and the planning scheme". A letter from the Council's solicitor, Mr McElwaine, to the General Manager of the Council dated 14 January 2009, is in the material I have. The letter seems to have found its way to the Tribunal. In that letter Mr McElwaine says that "The application is for development and use of this land as a 'dwelling'. The applicant disclaims any suggestion that the dwelling will be incidental to a primary use activity on the land. The applicant asserts that the development class 'residential' as a secondary use class in the zone is to be assessed on its merits and should be approved as it complies with the necessary scheme provisions."

20 The letter concludes with a summary to the effect that no valid permit was issued by the Council because the dwelling was a secondary use in the zone and that because it could not conform with the Scheme Standards, it had to be refused, by virtue of cl 3.3.5 of the Scheme.

21 The solicitors for the applicants were obviously given a copy of this letter. They responded to the Tribunal's Registrar, referring to "some assertions made by Mr McElwaine". The following appears in the letter dated 12 February 2009:

"In his correspondence he asserts that the Developers disclaims [sic] any suggestion that the dwelling will be incidental to a primary use activity on the land. In this regard I refer to Mr and Mrs Jackson's correspondence of 8 September 2008 lodged in support of the application. They raise issues of animal husbandry, crop maintenance and weed control, being agricultural activities. ... With all due respect, the Council lawyers, ... must have satisfied themselves that the application demonstrated that it could perform in accordance with any relevant planning scheme standard."

22 The Tribunal's reasons dated 26 February 2009 contain the following statements:

"2 A preliminary matter has arisen which it is both appropriate and convenient to deal with before the Tribunal embarks upon a determination of this matter on the merits. It goes to the validity of the permit issued by the Council. The validity of the permit, of course, is relevant to whether or not Mr and Mrs Purton's appeal is valid and, in turn, whether the Tribunal has jurisdiction to deal with the matter.

3 The Scheme requires each Use Class in each Zone to demonstrate compliance with various identified Planning Scheme standards (See Clause 3.1.5). Specifically Clause 3.3.5 provides that a Council must refuse any 'application that is unable to demonstrate that it can conform in accordance with any relevant Planning Scheme standard'. [Original emphasis]

4 This provision is plain in its terms. The Council has no discretion or power to do anything other than refuse an application in such circumstances.

5 Clause 9.3 provides, expressly, that the use class 'Residential' is a secondary one in the Primary Industries Zone. It would be surprising were it otherwise. Clause 9.4.1, Issue 9 deals with the issue of Secondary Use Classes in the zone. It is in the following terms:

[The Tribunal then set out the text of Issue 9.0:- Location of Secondary Uses of Pt 9.4.1 and AS 9.1, 9.2 and PC 9.1,9.2.]

6 The Clause is plain in its meaning: it applies to any residential development in the Primary Industries Zone. Mr Wright's submission that Mr and Mrs Jackson having 'raised issues of animal husbandry, crop maintenance and weed control, being agricultural activities' is not to the point. A residence, which is what is applied for, is a secondary use. That various, identified, rural activities are mentioned by Mr and Mrs Jackson cannot alter that fact and are not relevant. Furthermore any of those activities can be (and in fact are being) carried out on the subject property in the absence of a residence.

7 It seems beyond argument that none of the applicable Acceptable Solutions in clause 9.4.1 Issue 9 are, or can be met.

8 This means that regard then must be had to the Performance Criteria. Neither subparagraph (a) nor subparagraph (b) are, or could ever, be met. It follows that the Council must as a result of the operation of Clause 3.3.5 refuse this application. That it purported to permit the application is not to the point. It was not empowered so to do; it had no discretion so to do. It follows that the permit purportedly issued by the Council, contrary to the express advice of its professional planning officer, was plainly invalid. From this the only consequence is that the appeal is invalid and the Tribunal enjoys no jurisdiction to further hear and determine the matter.

...

10 For the reasons appearing above the Tribunal is satisfied that it is without jurisdiction to further hear and determine the matter."

23 The Building Act, s60, provides that a person must not carry out any building work unless a building permit is in force that allows the carrying out of that work. As noted, the applicants applied to the Council's permit authority for a building permit for the proposed dwelling at Moorleah. The Building Act, s73, provides that a permit authority is to refuse an application for a building permit if it not satisfied as to the matters referred to in s71.

24 Section 71 relevantly provides as follows:

"71 - Consideration of application for building permit

In considering an application for a building permit, a permit authority is to take into account the following matters:

(d) any relevant requirements of any permit or consent granted or issued under any other Act;

(e) any relevant provisions of this Act or the Building Regulations."

25 A relevant provision of the Building Regulations 2004, is reg18(1). That provides as follows:

"18 - Granting of building permits

(1) For the purposes of section 71(e) of the Act, the following matters are relevant to the consideration of an application for a building permit:

(b) a permit under Part 4 of the Land Use Planning and Approvals Act 1993 is required and has been granted in respect of the development;

(c) the development is not prohibited by a planning scheme, or interim order in force, under the Land Use Planning and Approvals Act 1993."

The refusal of the application for the building permit

26 On 11 May 2009, the "Director Development Services" of the Council, wrote to the applicants in the following terms:

"I refer to matters outlined under Section 71 and 73 of the Building Act 2000 and Regulation 18 of the Building Regulations 2004 and advise as the Permit Authority for Council I must refuse the application for the building of a dwelling ... for the following reasons:-

The application does not comply with Building regulation 18(1)(b) in that a Planning Permit is required and a Planning permit for this development does not exist [sic]. I note the file history allows [sic] that a Planning Permit initially granted by the Planning Authority was subsequently deemed invalid by the Resource Management and Planning Appeal Tribunal during appeal processes on this matter.

I attach a copy of the decision from RMPAT for your information."

27 The Appeal Board is established by the Building Act, s203. Section 220 provides that it is to deal with an appeal by way of a fresh hearing, and its procedure is governed by s221:

"221 - General procedure

(1) The Appeal Board -

(a) is to conduct a hearing with as little formality and technicality and as much expedition as it considers appropriate to properly consider the matters before it; and

(c) may inform itself of any matter in any manner it considers appropriate to properly consider the matters before it; and

(d) may determine its own procedure except where otherwise provided by this Act."

28 As I have noted, the Board did not conduct any formal hearing but proceeded on the basis of correspondence from the parties' solicitors. Of particular significance is a letter from the Council's solicitor to the Registrar of the Board dated 5 June 2009, to which I will return. The Board's decision was short and it is appropriate to set it out in its entirety:

"PARTICULARS OF DECISION BEING APPEALED

On 11 May 2009 the Respondent refused an application for a building permit in respect of the construction of a dwelling at 301 Pages Road, Moorleah on the basis that the required planning permit had not been granted.

To determine whether or not the requisite planning permit had been granted, consistent with its obligation under section 221(1)(a) of the Building Act 2000 ('the Act'), namely to conduct hearings with as little formality and technicality and as much expedition as it considers appropriate to properly consider the matter before it, the Board did not require the parties to the appeal or other persons to attend.

The appeal was determined at Hobart on 2 July 2009.

DECISION

1 Following an appeal made to the Resources Management and Planning Appeal Tribunal ('the Tribunal') by representors against the grant on 21 November 2008 of a planning permit for the construction of the dwelling at 301 Pages Road, Moorleah by the Respondent, the Tribunal in paragraph 2 of its decision dated 26 February 2009 (M & J Purton v Waratah Wynyard Council and A & M Jackson [2009] TASRMPAT 33) stated:

A preliminary matter has arisen which it is both appropriate and convenient to deal with before the Tribunal embarks upon a determination of this matter on the merits. It goes to the validity of the permit issued by the Council. The validity of the permit, of course, is relevant to whether or not Mr and Mrs Purton's appeal is valid and, in turn, whether the Tribunal has jurisdiction to deal with the matter

... the Council must as a result of the operation of Clause 3.3.5 [of the Waratah-Wynyard Planning Scheme 2000] refuse this application. That it purported to permit the application is not the point. It was not empowered to do so; it had no discretion to do so. It follows that the permit purportedly issued by the Council ... was plainly invalid. From this the only consequence is that the appeal is invalid and the Tribunal enjoys no jurisdiction to further hear and determine the matter.

2 The consequence of the Tribunal having decided that the application for the planning permit ought to have been refused by the Respondent is, pursuant to section 23(7) of the Resources [sic] Management and Planning Appeal Tribunal Act 1993, that the Respondent is to give effect to the Tribunal's decision; that is, the original grant of the planning permit was a nullity, it had not been granted.

3 Section 71(e) of the Act and regulation 18(1)(b) of the Building Regulations 2004 required the Respondent, when considering the appellants' application lodged on 8 May 2009 for the building permit, to take into account whether or not a planning permit required under the Land Use Planning and Approvals Act 1993 had been granted in respect of the development the subject of the application.

4 As at the time of the building permit application the requisite planning permit had not been granted, the Respondent could not be satisfied in respect of section 71(e) of the Act and so in compliance with section 73(1) the Respondent was required to refuse the building permit application.

6 The Board will entertain any application for an order for costs in this appeal, if made to the Board in writing with supporting submissions within the next 14 days. In the absence of any such application the order of the Board is that each party bear its own costs.

29 It was common ground that if the Council had made a jurisdictional error in granting the permit and the permit was invalid, it could be properly regarded as such by the Board. That is, it was not necessary for the permit to be declared invalid or set aside by a court of competent jurisdiction. Counsel for all respondents relied on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron and Gummow JJ at [51]:

"[51] There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged." [2] [References omitted]

Failure to exercise jurisdiction / Error of law in the decision

30 The applicant's first argument was that the Board did not determine for itself the issue of whether the permit had been validly granted but had simply adopted the decision of the Tribunal. This, it is said, is apparent from the terms of the Board's reasons. The respondents appeared to accept that the question of whether a permit had been granted was one which the Board needed to address, and that if it had failed to do so, and to determine it independently, there would have been a failure to exercise jurisdiction in the sense of a failure to apply itself to a question which the law prescribed: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gaudron J at [80].

31 The applicants' principal alternative argument was that if the Board did determine the matter, there was an error of law in the finding that the permit was a nullity. It was submitted that the Board's error lay in determining that the Council had made a jurisdictional error in granting the permit. Relevant to both arguments is precisely what the Board was required to determine in order to resolve the question of the validity of the permit. This was a matter of some uncertainty. The suggestion was made that the Board was required to make findings as to jurisdictional facts in terms of the Council's jurisdiction, and thus to perform what were actually the Council's functions under the LUPA, Part 4. The problem may well lie in the expression and not the concept intended to be conveyed, but putting the Board's task in those terms runs the risk of misconception as to what the Board was required to do in order to perform its functions. Under reg 18(1)(b) the Board was required to determine "whether a permit is required ... and has been granted." Of course, the alleged errors relate to the second aspect of that determination. The issue is the nature of that exercise with regard to that aspect, as it arose in this case.

32 The relevant provisions need to be examined. Because the Board deals with an appeal by way of fresh hearing, it is in the same position as a permit authority, so that (relevantly) the Building Act, ss71 and 73, apply to it. Section 73 requires a permit authority to refuse an application for a building permit if not satisfied as to a number of matters, one of which is, by virtue of s71(e), any relevant provision of the Act or Regulations. Regulation 18(1)(b) provides that the requirement for, and the grant of, a permit under the LUPA is a relevant matter for the purposes of s71.

33 Read literally, the combination of these provisions produces a clumsy result, but the intention is plain enough. The provisions combine to produce the result that a permit authority must refuse an application for a building permit, if it is not satisfied that a permit under the LUPA, Part 4, was required and had not been granted. Plainly enough, to carry out its functions in considering an application for a building permit, the Board needs to consider and determine those two questions; whether a planning permit is required under the LUPA, Part 4, and whether one has been granted.

34 It is immediately apparent that the first question involves at least an understanding of the relevant law. It is less readily apparent that the question of whether or not a permit has been granted involves a question of law, but as this case illustrates it may do so, given that the grant of a permit without lawful basis is ineffective and there is no valid permit. Where the point is raised, the Board would have to decide it. Generally, the Board would have to decide such questions in order to exercise its jurisdiction, although the determinations would not have authoritative force: Attorney-General v Estcourt [1995] TASSC 65; (1995) 4 Tas R 355 per Wright J at 365-66; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. No party to this application submitted that the Board did not have the power to decide questions of law in order for it to perform its functions.

35 As I have just noted, the exercise of establishing whether or not a permit had been granted, involved a determination of whether the permit purportedly granted was validly granted as a matter of law. That brings me to point as to the nature of the process on which the Board had to embark. I think the situation is analogous to the one which arose in R v Resource Management and Planning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc [2000] TASSC 19; (2000) 107 LGERA 196. In that case a developer obtained a development permit from a council. During the course of the construction of the development, nearby residents took the view that the construction was being carried out in contravention of the provisions of the planning scheme. They applied to the Resource Management and Planning Appeal Tribunal which issued a summons to the developer to show cause why orders should not be made against it in the form of restraining orders or the like.

36 On the hearing of the summons to show cause, the Tribunal found that the construction was not in accordance with, or authorised by, the planning scheme, and concluded that it had not been competent for the developer to apply for the permit, nor for the council to grant it. The developer sought prerogative relief, one of the grounds being that the Tribunal had no jurisdiction to make the conclusions it had. At [14] Evans J held that such matters did not go beyond the Tribunal's acknowledged power to satisfy itself as to what the law was in relation to matters relevant to its jurisdiction but "were findings on matters of direct relevance to the jurisdiction the Tribunal was called on to exercise".

37 Having held that these matters were jurisdictional facts and that it had the power to determine such facts, his Honour continued:

"[16] In order for the Tribunal to establish whether Calvary had undertaken a development contrary to a planning scheme in contravention of the Act, s63(2)(a), it was necessary for the Tribunal to determine whether the development had been carried out in accordance with a valid permit. This involved considering:

•

whether it was open to Calvary to obtain a permit for the development under the Scheme; and

•

whether, pursuant to the Scheme, it was competent for the council to grant Calvary a permit for the development.

[17] The Tribunal was obliged to determine these matters in the course of establishing whether it had the power to make orders against Calvary for breaching the Act and, in doing so, did not make declarations beyond its power."

38 That seems to me to describe the task which the Board in this case was required to undertake. A permit for the development in fact had been issued. As the point had been raised, in order to properly exercise its jurisdiction the Board was required to determine whether it was competent for the Council to grant to the applicants the permit. That is, whether the grant of the permit was, on the material before the Council and in light of the provisions of the Scheme, within the Council's powers. In order to make that determination, the Board would have had to examine the material which was before the Council and apply the provisions of the Scheme. It was only if the grant of a permit was not open on any legal basis, or not properly made on any legal ground, could the Board have determined that a permit "had not been granted".

39 The originating application seeks a declaration that planning permit is "valid and current". The Judicial Review Act s27(c) specifically empowers the making of declarations of the rights of the parties as to matters to which the application relates. At the hearing, the applicants submitted that in the event that I held the Board to have made an error, I could determine the "jurisdictional facts" for myself, and to make a declaration accordingly. This was a reference to those jurisdictional facts relevant to the Council's grant of the permit. I take the view that I should approach this issue on the same basis I have outlined as to the Board's determination in relation to the grant of the permit. That is, I examine the material and the provisions of the Scheme in order to determine whether it was within the Council's power to grant the permit. If so satisfied, and if otherwise appropriate, I can make a declaration as to its validity. The respondents did not make any submissions as to this consequential aspect of the application.

Did the Board determine the question for itself?

40 It is convenient to quickly summarise the approach the Board took in its reasons. After referring to the appeal to the Tribunal against the grant of the permit it:

•

quoted the Tribunal's reference to a preliminary matter in relation to the appeal going to the validity of the permit which in turn went to the question of whether the Tribunal had jurisdiction;

•

quoted the Tribunal's conclusions that the Council was not empowered to grant the permit, and the permit was plainly invalid;

•

said that the consequences of the Tribunal having decided that the permit ought to have been refused was, pursuant to the Resource Management and Planning Appeal Tribunal Act, s23(7), that the Council was to give effect to the Tribunal's decision; that is that the grant of the permit was a nullity - it had not been granted;

•

found that as at the time of the building permit application, the planning permit had not been granted, and the Council could not be satisfied in respect of the Building Act, s71(e), and so in compliance with s73(1), the Council by its permit authority was required to refuse the building permit application.

41 The respondents highlight that the Board was obliged to conduct the hearing with as little formality and technicality as it considered appropriate, and not being bound by the rules of evidence, could inform itself of any matter in any manner it considered appropriate. It is argued that the Board obviously chose to inform itself, as it was entitled to do, by reference to the Tribunal's decision and to the written submission made on behalf of the Council to it dated 5 June 2009. It is submitted that the Board was entitled to, and did, "adopt the facts and reasoning of the Tribunal to come to the conclusion" that it was not satisfied that the permit which was required had been lawfully granted.

42 A large bundle of documents was handed up by the applicants' counsel, with the consent of other counsel. I was told that the documents related "to the proceedings before the Council with respect to the granting of the original planning permit, the appeal from the granting of that permit to the planning tribunal and the proceedings in the Building Appeal Board". However, it was not made clear, and it was not apparent from the bundle itself, precisely what documents were before the Board. It did seem fairly plain from the arguments at the hearing that the parties accepted that the material before the Council leading to the granting of the permit was not before the Board at the time it made its decision. But as there was some doubt about this, I had an inquiry made as to whether counsel were agreed about precisely what material was before the Board. The result of the inquiry was a request made by the Council's solicitors of the Board's legal representatives, for a list of documents constituting the material considered. After some delay the Board's Registrar supplied a list disclosing the contents of the Board's file. The appellants' application to the Council for the permit and the associated documents were not listed. As a consequence of the receipt of the list, the parties were given the opportunity to make further submissions in writing. The Council did not take up that opportunity.

43 The submission dated 5 June 2009 made to the Board on behalf of the Council by its solicitor was "to the effect that the appeal is incompetent and as a consequence the Building Appeal Board has no jurisdiction to proceed further". The submission merely referred to the notice of refusal dated 11 May 2009 (wrongly attributing a reference in that letter to reg18(1)(c) of the Building Regulations, as distinct from reg18(1)(b)), and asserted that while the ruling of the Tribunal did not establish a binding legal determination, it was plain from the facts set out in that decision and the reasons contained in it that pursuant to the Scheme "the development of a residence in the Primary Industry Zone and on this land is prohibited" [sic].

44 The submission went on to assert that on the facts of the case it was "absolutely plain that the Council's decision was entirely in accordance with the statutory requirements", and that as a consequence the appeal should be resolved "on the papers" by dismissing it. As to what facts may be apparent from the Tribunal's reasons, little can be gleaned from them other than that the development fell within the Residential use class, that the applicants had raised some issues to do with animal husbandry and the like which were said not to be to the point, and that the proposal could not meet the relevant Scheme standards.

45 Counsel for the second respondent accepted that the Board's reference to the Resource Management and Planning Appeal Tribunal Act, s23(7), was erroneous, because the section could only operate if the Tribunal had jurisdiction. However, I was urged to take the decision as a whole, to read it in its entirety and not subject it to unnecessary interpretive scrutiny. Having done what I was urged, I am still left in a position in which I am simply unable to see whether there has been any independent determination of the issue. Without the relevant material, I cannot see how there could have been. There is a mere repetition of the critical parts of the Tribunal's reasons, without any reference to relevant facts. Those facts and the other material necessary to determine the point are not contained in the Tribunal's reasons and the solicitor's submissions. There is simply no suggestion of an autonomous approach to the issue. I am satisfied that without carrying out any independent exercise, the Board merely adopted the Tribunal's finding and did not determine the matter for itself. That is enough to dispose of this aspect of application for review. However, as I need to consider the issue of declaratory relief, and as it is desirable that I do so, I will resolve the applicants' further arguments.

46 Assuming that I am wrong and that the Board did determine the issue for itself, the question is whether it erred in law. Was the permit validly granted in the sense that was it open, as a matter of law, for the Council to have granted it? The applicants submit that it was open for the Council to find that the proposed dwelling was ancillary, being an integral and subservient part of the existing use within the Resource Development use class; and the development applied for could have been categorised, by virtue of cl 3.4.1, as Resource Development. They say that there was factual material which, if accepted, gave the Council the power under cl 3.4.1 to treat the development as Resource Development and then, exercising its discretion where necessary, to grant the permit.

47 The respondents rely on the terms of the applicants' Development Application. The respondents say that the applicants "did not apply for Resource Development ... or anything else which is a Primary use class in the Zone". It was submitted that the applicants ought to have applied for Resource Development "not Dwelling" because, it was said, "that's the consequence of cl 3.4.1". It was submitted that if it were intended that the dwelling be assessed as being ancillary to the existing use within Resource Development, the application had to be put on that basis in specific terms. The respondents heavily relied on Ms Duckett's report in the sense that it showed that the applicants had disavowed reliance on cl 3.4.1, and accepted that the dwelling retain its designation as a secondary use, and not be treated as one ancillary to the existing use.

48 Importantly, the respondents do not argue that the material was not capable of satisfying the Council that the dwelling was ancillary to the existing use within the Resource Development use class, and so could be dealt with on that basis. There was no argument that so regarded, it was not within the Council's power to grant the permit. As can be seen, leaving aside for the moment some factual issues as to the form of the application, the argument came down to the proposition that as the Development Application acknowledged that the use retain its ostensible designation as a secondary use, that is how it had to be dealt with by the Council. That is, the Council was not empowered to deal with it in any other way. No authority was cited for that proposition.

49 As to the facts of the application, it will be recalled that the Development Application form required the applicants to "fully describe the intended use of the land or premises" in the space next to the words "Proposed Development". Clause 3.1.7 of the Scheme provides that an application for development must specify the proposed use of the land or buildings comprising the development. Applicants are not asked to designate zones or use classes. Clearly, what is being sought is information as to the purpose to which the land or the development is to be put, in order for the Council to assess the appropriate use class.

50 Under cl 3.8.1, Council must categorise uses "within a use class". In this case, the applicants put "Dwelling" in the relevant entry. That word was picked up in the description part of the form which was completed by the Council officer. "Dwelling" is defined in the general definition part of the Scheme as:

"Any building or part of a building used, or capable of being used, as a self contained unit for cooking, sleeping, eating, washing and other domestic purposes. It includes outbuildings and works incidental to a dwelling."

51 "Dwelling" is not a use class; it is a defined purpose to which a building may be put. Even leaving aside cl 3.1.8, it is not therefore correct to assert that in order to have their application dealt with by way of cl 3.4.1, the applicants ought to have applied for the use class of Resource Development.

52 As noted, much was made of Ms Duckett's report and the disavowed reliance on the ancillary use provision. However, there is no reference to this report in the Development Application form, nor in the applicants' letter of 8 September 2008. Further, the Council officer's report on this application shows that this was the third application the applicants had made to the Council for a permit for a dwelling on this site. The first was in 2004 and was refused. The second was in 2006 and was withdrawn in April 2006. It is likely that Ms Duckett's report was prepared for that application. This application was for a house with fewer bedrooms than the 2006 proposal. On the face of things there is little to suggest that the applicants were relying on Ms Duckett's report for this application. Assuming they were, it would not have taken much on the part of a Council officer to notice that, as indeed was pointed out by Mr Wright to the Tribunal's Registrar, the applicants' letter of 8 September 2008 showed that additional agricultural activities of some significance had been developed in the nearly three years which had elapsed between the report and the lodgement of this particular application. Nor would it have taken much to realise that the reason Ms Duckett was content for the earlier proposal to be designated as a secondary use, was because of her legal argument as to the construction of the Scheme standards in Part 9.4.1.

53 The point I am deciding of course, is whether it was open as matter of law for the Council to have granted the permit. That effectively means whether the Council was capable in law of determining the application on the basis that the dwelling constituted an integral and subservient ("ancillary") part of the existing use, and be treated as part of that use. As I see it, the basic proposition of law which underpins the respondents' submissions and which was not directly articulated, is that the Council has no power to go beyond what is asserted in a development application, as the appropriate use class categorisation. The corollary of that proposition is that an applicant may, by nominating the use class, determine how the application is to assessed by the planning authority. Such a position is untenable. It is contrary to the Scheme and to well established planning principles. I see no difference in principle between a favourable or beneficial approach taken by an applicant, and one which operates adversely to an applicant's interests.

54 Speaking in terms of this Scheme, an applicant is required to fully describe an intended use. The Council has the power under the LUPA, s54, to require the applicant to provide it with any additional information before the application is considered. The purpose of that section is obvious. It is to assist the Council in understanding how it is to properly characterise and assess the application. It is a matter for the Council as to how, in terms of use class, the use described in the application is categorised: see cl 3.1.8. It is thus a matter for the Council whether a proposed use or development constitutes an integral and subservient part of an existing use or development, and hence "ancillary" within the meaning of Part 3.4.1.

55 Further, the task of characterisation of uses by planning authorities and courts has been the subject of much judicial discussion. Various principles which apply to intended and existing use cases have emerged; see for instance Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310-11; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 59 - 65; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR at 507-08 and Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359 at [57] - [70][3]. In the first instance, the task is one for the planning authority; see for example Penrith City Council v Waste Management Authority (1990) 71 LGRA 377 at 383 if authority be needed. Subject to provisions to the contrary of course, (but which would be extremely unusual), there is no suggestion that as a matter of law the authority is to have regard to any characterisation by the developer.

56 An illustration is afforded by City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGRA 298. The developer sought permission "to construct buildings and works in accordance with the attached plans for the purpose of an institutional home (retirement village)." "Institutional home" was defined in the relevant planning scheme and was a use as of right, whereas a "flat" (also defined) was not. At issue was the power of the planning authority to go beyond the purpose of "institutional home" as asserted in the application. The developer submitted that the council had no power to treat, and so describe, the application as one for the construction of buildings for the purpose of a retirement village, constituting flats, as defined in the planning scheme.

57 It was held that the planning authority was not bound to accept as accurate the name given to a proposed development in the application for planning permission, and that in considering an application for development, the authority was not bound to exclude from its consideration the use to which the proposed development would or might be put. Just as a planning authority is not bound to accept a beneficial view of things put forward by a developer, it is not bound by any descriptions of things which may be unhelpful or disentitling from the perspective of the applicant, and is at least able, if not obliged, to adopt a flexible and fair approach to the interpretation of an application.

58 The reverse of the Heda Nominees situation occurred in Bentham v Kiama Municipal Council (1986) 59 LGRA 94. To their disadvantage, the developers described the proposal as one for a 57 room hotel, although parts of the submission referred to parts of the proposal as "motel rooms". An hotel required a minimum allotment area which the development did not have. The council treated it as a tourist complex comprising a motel and other facilities. On appeal, it was held that the classification was a question of fact for the council, and the way it had dealt with the application was reasonably open to it. Of general relevance to this approach are the comments of Marks J in Pacific Seven Pty Ltd v City of Sandringham [1982] VicRp 14; [1982] VR 157 at 163, where his Honour said:

"The words of the [relevant sections] should be borne in mind as expressing the intention of the legislature that the substance of an application should be determined. Planning is a difficult exercise with flexibility an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual or community interest is served by recourse to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness."

59 These comments were cited with approval by Wright J in Kain v Glamorgan Spring Bay Council (1996) 90 LGERA 326 at 336 - 37. That case concerned an appeal to the Resource Management and Planning Appeal Tribunal against the grant of a permit enabling the sale of alcohol for consumption off-site at an existing holiday centre. The appeal had been allowed because there was no evidence by floor plan or otherwise to designate the particular area from which sales were to be made. Applying the approach endorsed by Marks J in the Pacific Seven case, Wright J said that the Tribunal's failure to seek clarification of the relevant liquor sale area was not a mere matter of it exercising a discretionary judgment, but a failure to advert to alternative methods of disposition which it may have exercised. His Honour said at 338:

"Within the context of its statutory framework and responsibility, I think that the course it took was erroneous; not because of any breach of the rules of natural justice, but because it failed to consider relevant options which were open to it, which, on the basis of merit, may have produced a different outcome. I think that as a consequence the appellant must succeed."

60 For those reasons the respondents' submissions must be rejected. The Council in this case was entitled to look beyond the statements in Ms Duckett's report, and to look at the whole of the material. It was entitled to determine for itself that on the whole of the material the dwelling could be properly treated as part of the existing use within the Resource Development use class. I have already noted that there is no dispute that the material was not at least capable of establishing an ancillary use or development, and that a grant of a permit was open by virtue of cl 3.4.1. As it was open for the Council to proceed on that basis, it follows that the Board erred in determining that the Council had no power to grant the permit.

61 Counsel for the applicants advanced an alternative argument. It was submitted that if the Council's position was correct and that the intended use for the dwelling could only have been characterised as falling within the Residential use class, and was hence a secondary use in the Zone, then it did not necessarily follow from the application of cl 9.1 and cl 9.2 of the Acceptable Solutions and the Performance Criteria of Part 9.4.1, Issue 9.0, that the permit could not have been granted. The argument is that at least in relation to Issue 9 of Part 9.4.1, as a matter of construction, the Acceptable Solutions and the Performance Criteria are each alternatives to the other, meaning in the applicants' case, that demonstrated compliance with PC 9.1 is sufficient.

62 In the context of the application to this Court, the applicants would need to demonstrate that this matter of construction was one which was reasonably open and that there was material capable of demonstrating performance in accordance with the standards. In my view the construction argument must be rejected. Clause 3.2.3 provides that an application must demonstrate that it will perform in accordance with all relevant "Planning Scheme Standards". As has been seen, those standards are the "Acceptable Solutions" and the "Performance Criteria". Respectively, they relate to means of meeting or assessing performance against "the corresponding objective". In relation to each Zone, there are a number of "Issues", under each of which is set out an "Objective". The particular acceptable solutions and performance criteria are set out under that objective.

63 It is obvious that some issues will not arise in relation to some development proposals. It is equally clear that in relation to some issues, the objective is broadly framed, the acceptable solutions and the performance criteria are correspondingly extensive, and that on occasions some clauses of the Standards will not apply to a particular development. Where relevant, if the development fulfils the requirements of an acceptable solution, the objective is met. If it is not so fulfilled, the corresponding performance criterion needs to be turned to, and the development's performance assessed on that basis. With Issue 9.0 of Part 9.4.1, the two clauses 9.1 correspond. They are relevant and would apply to this development. Similarly the two clauses 9.2 are corresponding and apply to this development. PC 9.1 cannot I think, on any reasonable construction, stand alone.

Resolution of the application for judicial review

64 But for one matter, it would necessarily follow that the application should succeed. That one matter arises from the documents provided by the Board's Registrar in response to the request relating to the information which the Board had before it. Counsel for the Purtons has submitted that the application for the building permit "was for a different development to the one approved by the planning permit". The difference is said to lie in the fact that the site plan for the building permit shows a setback of 42 metres, whereas that set out in the planning approval is 34 metres. The submission is that the development which is the subject of the building permit application is a modification of that which is the subject of the planning permit. On that basis, it is submitted that I should refuse the application in the exercise of my discretion.

65 In response, the applicants make the following points:

•

the applicants may request the Council to amend the permit pursuant to the LUPA, s56. By s56(2), the Council may amend the permit if it is satisfied (amongst other things) that the amendment will not cause an increase in detriment to any person and does not affect any change to the use or development other than a minor change to the description;

•

under the Building Act, s72(2), the permit authority can make a building permit subject to "any relevant and reasonable condition" which would include the obtaining, if necessary, of an amendment to the planning permit.

•

the powers of the Board were wide enough to permit it to grant the building permit so that it conformed with the terms of the planning permit;

•

in any event, the basis of the Board's rejection of the appeal was that the planning permit was a nullity, and a declaration to the contrary would remedy the error, leaving the Board to exercise its powers in the ordinary way, in light of the terms of the application for the building permit and the terms of the planning permit;

66 In my view the last proposition must be accepted. Once the issue of the validity of the permit has been resolved, it is a matter for the parties to argue the situation in relation to any asserted difference between the terms of the application for the building permit and the terms of the planning permit, and for the Board to exercise its jurisdiction accordingly. I do not see it as a matter affecting the discretion of this Court to grant the relief sought.

67 I have found that the Board erred in failing to exercise its jurisdiction, or alternatively erred in law as to the validity of the permit. The issue is now whether the material enables me to make a declaration in appropriate terms. I repeat that the respondents do not argue that the material was not capable of satisfying the Council that the dwelling constituted an integral and subservient part of the existing use on the applicants' property. It was not argued that there was any other legal impediment to the granting of the permit. In my view the material which I have shows that it was competent for the Council to grant the applicants a permit for the development. For the reasons which I have given in relation to whether relief should be granted in the exercise of the discretion, the declaratory order should be limited to the relevant issue under the Building Regulations, reg18(1)(b); that is, whether a permit under Part 4 of the LUPA was required, and had been granted.

68 I allow the application. Pursuant to pars(a), (b) and (c) of the Judicial Review Act, s27(1), there should be orders setting aside the decision, declaring the rights of the applicants and referring the matter to the Board for further consideration. Subject to hearing further from counsel I would propose making the following orders:

1 The decision of the Building Appeal Board of 7 July 2009 by which the applicants' appeal was rejected be set aside.

2 It is declared that the permit granted by the Waratah-Wynyard Council on 21 November 2008 in respect of the construction of a dwelling at 301 Pages Road Moorleah is valid in that it was within the Council's powers under Part 4 of the Land Use Planning and Approvals Act 1993.

3 The appeal be remitted to the Building Appeal Board for further consideration and determination in accordance with the law.

[1] This was the description in the notice given by the Council in accordance with its obligations under LUPA, s57(3).

[2] That can be accepted for present purposes, but I should note that in Jadwan v Department of Health (2003) 145 FCR 1, it was held that Bhardwaj was not to be taken as authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. "All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute"; per Gray and Downes JJ at [42].

[3] This line of authority was referred to by the High Court with apparent approval in Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; (2007) 82 ALJR 74 at [17].