For the reasons I have given, the appeal will be allowed. The decision of the Tribunal of 25 August 2023 is set aside.
The parties are agreed that there is no need for me to order that the matter be reconsidered by a differently constituted tribunal. This is not a case in which the law would require the original decision-makers to disqualify themselves on the ground of a reasonable apprehension of bias. This case involves an error of law in failing to properly construe the performance criterion and consequently failing to approach the issue in the correct way. No controversial findings of fact will need to be re-visited, and to start the whole process over again would be costly. However, it should be left to the proper administrative processes, and perhaps the views held by the members themselves, to determine the makeup of the Tribunal. See Kidd v Resource Management and Planning Appeal Tribunal (No 2)[2011] TASSC 46 at [9]- [18]; Gibson v Resource Management and Planning Appeal Tribunal[2011] TASSC 72 at [57]- [58]; Meander Valley Council v Resource Management and Planning Appeal Tribunal[2013] TASSC 42 at - .
I order the matter be returned to the Tribunal, as originally constituted or otherwise constituted in accordance with the directions of the President of the Tribunal or delegate, for reconsideration in accordance with these reasons. The parties are also agreed as to the appropriate orders for costs. I order that the respondent, Centacare Evolve Housing Ltd, pay the appellant's costs of the appeal. I grant to that respondent an indemnity certificate pursuant to s 9 of the Appeal Costs Fund Act1968.
[2]
[1] Objective (c) in cl 11.4.2 - "Setbacks and building envelopes for all dwellings" - refers to the provision of "separation between dwellings on adjoining properties to allow a reasonable opportunity for daylight and sunlight to enter habitable rooms and private open space."
Parties
Applicant/Plaintiff:
Jacobs
Respondent/Defendant:
Hobart City Council [2024] TASSC 38
Cases Cited (6)
Jacobs v Hobart City Council [2024] TASSC 38 (19 July 2024)
"[47] In M Cubitt & T Powell v Launceston City Council & Ors[2022] TASCAT 47 at [41]- [46] the Tribunal considered what was meant by 'orientated to take advantage of sunlight' for the purposes of P2(b) in an identical provision in the Launceston Interim Planning Scheme 2015. The Tribunal concluded that the term required consideration of whether the area is orientated to take advantage of sunlight by reference to orientation to north. That requirement will effectively exclude consideration of the western terraces which are on the south-western elevation of the building and cannot be said to be oriented to north.
The Tribunal erred by way of a constructive failure to exercise jurisdiction in applying the performance criterion under clause 11.4.3 P2 of the Hobart Interim Planning Scheme 2015 in that it failed to consider and make a finding as to what sunlight was available to the Site, including where and when that sunlight occurred, and whether the private open space for each dwelling was oriented to take advantage of that sunlight.
The Tribunal erred by asking itself the wrong question in that it substituted a test of how private open space was 'oriented in respect of north' in place of the test required by clause 11.4.3 P2 of the Hobart Interim Planning Scheme 2015 which requires the private open space to be oriented to take advantage of sunlight.'
In essence, the three grounds really involve the same question, that being whether the Tribunal was wrong in its interpretation of what the Scheme required by virtue of the phrase in criterion P2(b) - "oriented to take advantage of sunlight". An error in the proper construction of a provision is an error of law. The application of the wrong test is an error of law and such an error, or a failure to apply the mind to the question the law prescribes, amounts to a constructive failure to exercise jurisdiction: Ex parte Hebburn Ltd; re Kearsley Shire Council[1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420 cited in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[2001] HCA 22, 206 CLR 57 at [80]; Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30, 206 CLR 323 at [41].
The law in relation to the construction of provisions in planning schemes is well settled. It accords with the approach to the interpretation of legislation: see Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd[2017] TASFC 14, 27 Tas R 405 at [49]; Wilderness Society Inc v Wild Drake Pty Ltd[2021] TASFC 12, 34 Tas R 341 at [112]- [114]; Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council[2022] TASFC 5 at [19]- [20].
In summary, the task begins with the ordinary grammatical meaning of the text to be interrupted having regard to its context. The words used in the text are the surest guide; context includes having regard to the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[2009] HCA 41, 239 CLR 270 at [4] and [47]. The statutory purpose resides in the statutes text and structure, and may appear by inference: Lacey v Attorney-General for Queensland[2011] HCA 10, 242 CLR 573 at . Words that have an apparently clear ordinary or grammatical meaning may be given a different legal meaning after the process of construction is complete: , CLR 507 at [32]. The task remains throughout to discern the meaning of the statutory text, not to define unexpressed legislative intention or remedy perceived legislative inattention: , at .
In my view the combined effect of these provisions, cl 8.7.1(b) and cl 8.8.1(b) in particular, is clear; where the use or development relies on a performance criterion to be compliant, there is a discretion to refuse or permit the use or development. That is so notwithstanding that in the case of a use, it is within a class of use permitted in a zone.
That said however, cl 8.10.2 does not apply in this case for a different reason. Clause 8.10.2 only refers to an application for a permit for a discretionary use. "Use" and "development" are quite distinct things, and mutually exclusive: Land Use Planning and Approvals Act1993, s 3; Gamble v Kingborough Council[2020] TASFC 7 at [18]. The application was for a permit for development. It is not immediately clear why regard to the matters set out in cl 8.10.2 is mandated for the determination of an application for a permit for a discretionary use, and not in relation to a discretionary development, and the point was not argued.
Even if it were the case that regard must be had to, for instance, zone purpose statements, in determining a discretionary development, they are not to be raised to the status of standards: see generally Boland v Clarence City Council (above) at [9]-[11] and Von Witt v Hobart City Council[1995] TASSC 12 at [13]. On the other hand, if having regard to the cl 8.10.2 matters is not mandated, and cl 8.10.1 applies, I can see no reason a planning authority could not take one or more of them into account where relevant in a particular case. In the circumstances of this case, I do not need to say anything further.
At least in part, cl 4.1.1 accords with this approach. It provides that terms in the Scheme have their ordinary meaning unless they are defined. "Private open space" is defined as an "outdoor area of the land or dwelling for the exclusive use of the occupant ...". Neither the phrase "oriented to take advantage of sunlight" nor any relevant word within that phrase, is defined
Context derived from the overall structure and other relevant provisions of a scheme is particularly important in the construction of performance criteria: Raff Angus Pty Ltd v Resource Management & Planning Tribunal[2018] TASSC 60, 28 Tas R 224 at [22]. In the present case, the parties agree that the relevant zone purpose statements in the Scheme form part on the context. (They disagree however, on what role those statements have when it comes to assessing compliance with the performance criteria.)
The Tribunal's reasons at [47], [51] and [52], as set out above, show that it adopted a construction of the requirement in P2(b) which requires consideration of whether the private open space is oriented to take advantage of sunlight solely by reference to its orientation to north; that is, the space must be "oriented in respect of north to take the best advantage of what sunlight might be available." Additionally, it concluded that the orientation of the space is determined by measuring any axis of it for its northerly alignment.
Of course, it can immediately be seen that such an approach will, in all cases, inevitably exclude consideration of open spaces that, speaking generally, have a west-north-westerly, westerly or south-westerly aspect. It is matter of common experience and knowledge that spaces with such directional aspects, ignoring structures and the like which may affect the situation, have access to sunlight in the mid to late afternoon. In this case, the Tribunal's approach led to the exclusion of the western terraces of the units concerned, with the evidence of Mr McClenehan and Ms Cameron then being ignored. In the result, so was that of Mr Shephard.
In terms of aids to interpretation, the zone purpose statements for the Inner Residential Zone, set out in cl 11.1, make reference to (among other things), provision for a variety of residential uses and dwelling types in inner urban and historically established areas, the encouragement of residential development at higher densities in certain generic locations, and the provision of a high standard of residential amenity. Perhaps of more relevance are the objectives set out in cl 11.4.3. Generally, such objectives are important aspects of context: Raff Angus (above). The particular objective, cl 11.4.3(c), is to provide "private open space that is conveniently located and has access to sunlight." In terms of compliance, cl 7.5.4 enables consideration of relevant objectives "to help determine whether a use or development complies with the performance criterion ... ."
The relationship between acceptable solutions and performance criteria was explained by Brett J in Raff Angus (above) at [22] and again by his Honour, (Wood and Pearce JJ agreeing), in Boland v Clarence City Council[2021] TASFC 5 at [20]- [21]. Acceptable solutions and performance criteria are separate and sufficient methods of complying with a scheme standard. Acceptable solutions are intended to provide a certain quantifiable way of complying with a relevant standard, whereas performance criteria will prescribe a quality test requiring an evaluative judgment. That is not to say however, that an acceptable solution is necessarily irrelevant to an evaluative assessment. In respect of some performance criteria, consideration of the acceptable solution may arise by necessary implication.
The only part of Acceptable Solution A2 in cl 11.4.3 that would seem to directly relate to sunlight is A2(c), with a particular orientation to the north being a requirement for compliance. The word "sunlight" is not mentioned at all in A2 itself. Where it appears in Objective (c) and in P2(b), it would have its ordinary meaning; adjectivally, "lit by the sun". It is used in contra-distinction to "daylight" elsewhere in cl 11.4 of the Scheme.[1]
To be compliant with A2(c), private open space for a dwelling must be located between the dwelling and the frontage, and only if the frontage is oriented between 30 degrees west of true north and 30 degrees east of true north. Any private open space not located between the dwelling and the frontage, has to be considered under P2. Of course, orientation to the north is not mentioned in P2(b), and it would seem the Tribunal seems merely to have adopted a slightly modified version of A2(c). On one view, it effectively added words to the provision when that is not justified: Taylor v The Owners - Strata Plan No 11564 (above) at [38]. The approach taken cannot properly be drawn from A2(c).
Although the parties agreed the Tribunal's approach was wrong in law, they did not completely agree on precisely what "orientated" means in P2(b), although in the end, I think the difference was one of emphasis. The appellant argues that it means the open space must be placed in a definitive position with reference to the points of a compass, saying that contextually this has regard to the relationship between the dwelling, the open space and the available sunlight. However, the submission continues, "[T]he performance criterion requires that the area of open space is to be so orientated such that it takes advantage of sunlight not merely that it is to be placed to the north of the dwelling."
The respondent says "orientation" in P2(b) means placement in a definitive position, but by reference to that which enables it to take advantage of sunlight, not by reference to cardinal points on a compass. Counsel relies on dictionary definitions to show that the word has both the meaning of to place in a definitive way by reference to points of the compass, and "to adjust with relation to surroundings, circumstances, facts etc." In oral argument, counsel for the appellant was content to embrace that meaning, while arguing regard is to be had to compass points.
To the extent there is any real point of difference, in practical terms it is of no great consequence. The orientation of open space relative to the points of compass, particularly a north/south orientation, would ordinarily be a part of the consideration of whether there is an orientation to take advantage of sunlight. But as I have mentioned, a non-northerly orientation does not necessarily preclude a location or position with the capacity to take advantage of sunlight.
Both parties also make the point that the Tribunal's approach involves orientation using the boundaries of the areas of private open space. Accepting that the Tribunal said that the orientation does not necessarily have to be determined by reference to the longest axis, its approach focuses on how the boundaries or edges are orientated relative to north, in preference to an analysis of a placement of the private open space in terms of it taking advantage of sunlight. Circular or angular spaces would, on the Tribunal's approach, present difficulties.
I am satisfied the Tribunal erred in law in its approach and that the grounds are made out. It ought not to have followed the earlier Tribunal decision of Cubitt v Launceston City Council. Counsel were generally agreed on the correct interpretation of the provision, and I accept the position as outlined by them.
What is required by P2(b) is an assessment of the sunlight available to the site, and then an examination of whether the private open space is positioned so as to take advantage of that sunlight. To that extent, the test requires a qualitative analysis, not a generalised quantitative assessment of positioning by reference to north. Through its focus on the boundaries of the open space being generally referable to the north on the assumption that it provides the "best advantage of what sunlight might be available"[2], the Tribunal failed to assess whether the positioning, whatever that might be, in fact enabled the open space to take advantage of sunlight.