ZEEMAN J This is an appeal from the Resource Management and Planning Appeal Tribunal ("the Tribunal") pursuant to the provisions of the Resource Management and Planning Appeal Tribunal Act 1993, s25. The appellant was the applicant for a planning permit in respect of certain premises. The respondent failed to make a determination in respect of the application. The appellant then instituted what purported to be an appeal to the Tribunal, although it was in the nature of an application for the determination of conditions in purported reliance on the Land Use Planning and Approvals Act 1993 ("the Act"), s59(3). The Act, s59(6) provides that, for the purposes of the Resource Management and Planning Appeal Tribunal Act, such an application is deemed to be an appeal. The Tribunal determined that it did not have jurisdiction to entertain the application. It is from that determination that the present appeal is brought.

2. When the appeal was first called on, counsel appeared for the respondent and indicated that it did not wish to be heard, except as to costs in the event that the appeal should succeed. Other persons who were parties to the proceedings before the Tribunal were served with a notice of appeal in accordance with the requirements of the Rules of the Supreme Court, O76, r69(1). None of those persons appeared.

3. On or about 5 September 1993 the appellant lodged with the respondent an application for planning approval in relation to premises at 393 Argyle Street, North Hobart. The application was described as being an application for "modification of existing planning permit conditions and partial change of use to restaurant" and stated that it was intended that the restaurant be open to members of the public. The reference to the existing permit conditions is a reference to the planning permit granted by the respondent in respect of the premises on 15 December 1987 for the use of the premises as a motel and, in particular, to the condition of that permit which provides:

"The facilities to guests including restaurants, dining

rooms, and recreation and leisure facilities are not to be

utilised by the general public".

4. Although the application in its terms sought a variation of the conditions applying to the existing permit, in substance it was an application for a permit permitting the premises to be used for a purpose in addition to the purposes permitted by the existing permit. That appears to be accepted by the appellant.

5. The premises are, and at all material times have been, subject to the provisions of the City of Hobart Planning Scheme 1982 ("the Scheme") sealed pursuant to the Local Government Act 1962, s730(2). The Scheme came into effect on 9 December 1991 and continues in force by virtue of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993, s11 and Sch1, par2(a). The Scheme contains a Schedule of Uses specifying that, as to particular zones and precincts, particular uses are prohibited, discretionary or permitted as of right. The premises are located within Residential 3 Zone, Precinct 15A. It is accepted that a restaurant open to members of the public is a prohibited use in that precinct. Nevertheless, there are provisions in the Scheme which contemplate the grant of planning approval in respect of prohibited uses.

6. Clause 2.6.1 of the Scheme provides as follows:-

"2.6.1 Where a proposed development is not in accordance

with a Schedule but the Corporation is nevertheless

satisfied that the proposed development does not conflict

with the Principles and Desired Future Character of the

relevant Precinct, the Corporation may entertain the

application, and use its discretion to approve the

development unconditionally or subject to conditions,

provided that the prior written consent of the Commissioner

is obtained where the proposed development is prohibited by

the provisions of Schedule A.".

7. The Scheme defines "development" inter alia as "the making of any material change in the use of the land or any buildings or works thereon". Schedule A referred to in cl2.6.1 is the Schedule of Uses to which I have referred. That Schedule contains the following provisions:

"A.6 Prohibited Uses ('X')

A.6.1 Where the sign X appears in respect of a Use Group,

the development of land for such uses shall hereby be

prohibited.

A.6.2 Notwithstanding the provisions of subsection A.6.1 of

this Schedule, the Corporation, subject to the provisions of

Section 2.6.1, may at its discretion, under the

circumstances referred to (or contemplated by) Principle 7

of Principle 8 of the Planning Scheme, approve the

development of land for a use otherwise prohibited."

8. The Principles and the Desired Future Character of the relevant precinct referred to in cl2.6.1 are specified in the Scheme. Relevantly, the Principles include the following:

"P.3 Notwithstanding the provisions of any Part or Schedule

of this Planning Scheme, the Corporation may use its

discretion to permit an existing use to change to any use

more in conformity with the Desired Future Character of the

relevant Precinct.

P.4 In accordance with the provisions of Section 731 of the

Act, the Corporation may permit an existing use to expand or

change to another use in order to facilitate the

preservation of the character of land and/or building or

works of heritage significance, or the continuance of a

lawful activity."

...

P.7 Basic plot ratio has been established having regard to

the desired future character of the relevant Precincts.

However, provided that all other aspects of the development

are in conformity with the Principles, any existing building

not subject to any legislation requiring its conservation

shall be permitted to be replaced by a new building having

not more than the same floor area.

P.8 Bonus plot ratio may be awarded in respect of

development which provides specific uses, facilities and

features approved or required for the benefit of the City in

particular Precincts. ... In no case shall the plot ratio

exceed the maximum plot ratio for the elative density zone."

9. The Statement of Desired Future Character relevant to precinct 15A is as follows:

"5.9.1 The Precinct should be rehabilitated as an inner city

residential area with particular emphasis on the protection

and extension of the stock of low cost housing. Throughout

the Precinct, any modification or expansion of any existing

non-residential use will not be approved unless it can be

demonstrated that it will not displace or adversely affect

any residential uses and will be compatible in scale and

character with a residential environment.

Non-residential uses should be discouraged from expansion

and encouraged to phase out to be replaced by infill

housing.

The environmental image of the Precinct should evolve from

the rehabilitation of its existing housing stock, together

with new medium density housing development compatible with

the scale, form, height and siting of these buildings."

10. The reference in cl2.6.1 to "the Commissioner" is a reference to the Commissioner for Town and Country Planning, a statutory officer appointed pursuant to the Local Government Act 1962, s718. The 1962 Act was repealed by the Local Government Act 1993, s350 and the office of Commissioner for Town and Country Planning ceased to exist on that repeal. The power conferred on the Commissioner appears to have been validly conferred by a combination of the 1962 Act, s721 (which specified the functions of the Commissioner in wide terms) and s730(1A)(2) (which required that the Commissioner finally approve and seal a planning scheme). The Land Use Planning and Approvals (Savings and Transitional) Regulations 1994, reg5, inter alia, provides that a reference in any planning scheme to the Commissioner for Town and Country Planning is a reference to the Land Use Planning Review Panel ("the Panel"). The Panel is constituted by the Act, s9. At no time has the written consent of the Panel been sought or obtained for the respondent to grant the appellant's application, whether unconditionally or subject to conditions.

11. The application was considered by officers of the respondent who recommended that it be refused on specified grounds. In summary, those grounds were that the proposal was contrary to Planning Principles 3 and 4 and to the Statement of Desired Future Character applying to Precinct 15A. The council of the respondent met on 9 October 1995 when that recommendation was placed before it. It was moved that the recommendation be adopted. Five votes were cast in favour of the motion and five votes were cast against it. Accordingly, the question was deemed to have been resolved in the negative (Local Government Act 1993, s18(3) and Sch4, par9(4)). No other determination has ever been made by the respondent in respect of the application.

12. The procedure adopted by the council of the respondent is unsatisfactory and undesirable. The council has done no more than to resolve in the negative the proposal that it should refuse the application, but has not thereby dealt with the application. Where an application for a planning permit is before a council, it ought to be the subject of a motion that it be granted if any members of the council are prepared to move and second such a motion. If such a motion is carried, the permit will have been approved. If it is not, there will have been a refusal. If members are not prepared to move and second such a motion it may be assumed that a motion to refuse would be carried. In order to avoid the situation of a council determining no more than not to adopt a resolution to refuse an application, such a motion should not be entertained unless it has first been ascertained that a motion for approval is not forthcoming.

13. By letter of 17 October 1995 the respondent advised the appellant that it had not approved the recommendation to refuse a permit. It then advised:

"The 42nd day of this application is on the 17 October 1995.

You are advised that you may apply to the Tribunal under

section 59 of the Land Use Planning and Approvals Act 1993."

14. That letter does not constitute a notice which satisfies the requirements of the Act, s59(2) as then in force. At the time that that notice was given and at the time that the application was made to the Tribunal that Act, s59(2) and (3) provided as follows:

"59 (2) Where the failure of a planning authority to

determine an application for a permit to which section 57 or

58 applies is deemed to constitute a decision to grant a

permit on conditions to be determined by the Appeal

Tribunal, the authority must, within 7 days of the

expiration of the period, or, where applicable, the further

period, referred to in section 57 (6) (b) or 58 (2), serve

notice

(a) on the applicant; and

(b) on any person who made representations under section 57

(5)

that the permit has been deemed to have been granted on

conditions to be determined by the Appeal Tribunal.

(3) Where notice under subsection (2) (a) is served on the

applicant, the applicant may apply to the Appeal Tribunal

for an order determining the conditions on which the permit

is granted."

15. There was no evidence before the Tribunal that a notice under s59(2)(a) had been served on the appellant. The service of such a notice, the duty to give it being enforceable by mandamus if necessary, was a prerequisite to jurisdiction. On that basis alone the Tribunal had no jurisdiction to entertain any application under s59(3). The amendment of s59(3) made by the Land Use Planning and Approvals Amendment Act (No 2) 1995, s22, which leads to a different result, did not take effect until 1 January 1996. However, as this point was not considered by the Tribunal and as I consider that the appeal should fail in any event, I will deal with the appeal on the basis of the issues raised by the notice of appeal, assuming that a notice under s59(2)(a) was given.

"1 The learned Tribunal erred in law in deciding that it

lacked the jurisdiction to hear and determine the appeal.

2 The learned Tribunal erred in law in determining that

clause 2.6.1 of the City of Hobart Planning Scheme 1982 does

not specify uses or developments of a kind which a planning

authority has a discretion to refuse or permit.

3 The learned Tribunal erred in law in determining that

clause 2.6.1 of the City of Hobart Planning Scheme does not

specify any use or development at all.

4 The learned Tribunal erred in law in determining that

section 57 of the Land Use Planning and Approvals Act 1993

does not apply to a use or development for a use which is

specified in the Schedule of Uses to the Planning Scheme, as

being one which is prohibited.

5 The learned Tribunal erred in law in holding that section

59 of the Land Use Planning and Approvals Act 1993 did not

apply to the failure of the Hobart City Council to determine

the application."

17. In essence the grounds of appeal raise only one issue, namely whether the application was one to which s57 of the Act applied. That is the only basis upon which it is arguable that s59(2) applies. The Tribunal held that s57 did not apply to the application and accordingly held that it did not have jurisdiction to entertain the application.

18. Counsel for the appellant addressed some argument to the effect that clA.6.2 of the Scheme operated so that the proposed development was not prohibited by the provisions of SchA in the terms of cl2.6.1. I do not accept that submission. Clause 2.6.1 should be construed so that a proposed development is prohibited by the provisions of SchA if it is prohibited by the terms of clA.6.1. Clause 6.2 should not be treated as modifying the prohibition expressed in clA.6.1 for the purpose of determining what is prohibited for the purposes of cl2.6.1. To do otherwise would have the result that no use would be prohibited for the purposes of cl2.6.1. That plainly would be contrary to the expressed intention of the maker of the Scheme. I have found it difficult to attribute any meaning to clA.6.2. It is expressed to be subject to cl2.6.1. I cannot see that it adds anything to that clause.

19. The effect of cl2.6.1 is that the respondent may approve a development, although prohibited by SchA, provided that it:

(a) is satisfied that the proposed development does not

conflict with the Principles and the Desired Future

Character applicable to the relevant precinct, and

(b) it has first obtained the written consent of the Panel.

20. Until those pre-requisites are satisfied and, in particular, until the written consent of the Panel is obtained, the respondent has no power to grant the application and, accordingly, has no discretion concerning it capable of being exercised.

21. The Act, s57 "applies to an application for a permit in respect of the use or development of a kind specified in a planning scheme ... as being a use or development which a planning authority has a discretion to refuse or permit." The simple question raised by this appeal is whether the application made by the applicant was such an application. Before the section applies, it must be an application in respect of the use or development of a kind which is specified in the Scheme as being one which the respondent has a discretion to refuse or permit.

22. As to the meaning to be attributed to the word "specified", I would adopt what was said by Bryson J in Ludwig v Coshott (1994) 83 LGERA 22 at 38:

"'Specify' and its derivatives are capable of referring to a

wide range of degrees of specificity; the article in the

Oxford English Dictionary well illustrates this, as many

different degrees of specificity can be indicated by

mentioning, speaking of or naming something definitely or

explicitly, or setting down or stating something

categorically or particularly; one can be definite without

being explicit, and particular without being categorical.

In applying 'specified' the word should be given a

reasonable construction consistent with effective operation

to achieve the stated purpose of providing machinery for

enabling development to be carried out in accordance with a

planning instrument or a consent."

23. The concept of discretionary uses is well established and well known in the context of planning. The Scheme, by clA.7.1, specifically makes provision for what it describes as discretionary uses in respect of which the defendant may use its discretion to refuse or permit the development and use of land unconditionally or subject to conditions. Such developments fall within s57(1). Whilst cl2.6.1 may call for the exercise of a discretion, it does not fall within s57 because:

(a) it does not specify any particular use or development in

respect of which the discretion may be exercised, and

(b) no discretion is capable of being exercised in favour of

an applicant without the prior written consent of the Panel.

24. It follows from these reasons that none of the grounds of appeal are made out and that the Tribunal correctly concluded that it had no jurisdiction to entertain the application made by the appellant in purported reliance on the Act, s59(3), even assuming that a notice had been served under s59(2)(a).