Administrative Law - Judicial review - Grounds of review - Error relating to facts - No evidence ground - How construed.

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, applied.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, followed.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s25(1).

Environment and Planning - Planning schemes and instruments - Tasmania - Other matters - Break O'Day Council Planning Scheme 1996 - How construed.

Judgment Number: [2006] TASSC 31

1 Mr and Mrs Kempster ("the appellants") live in West Melton, Victoria. Mr Kempster is employed as a project manager for a small building company in Victoria. The appellants own 30.94 hectares of land known as Lot 800, Tasman Highway. This land is on the eastern side of the Tasman Highway adjacent to the township of Four Mile Creek which, I understand, lies between Bicheno and St Helens on the East Coast of Tasmania.

2 The appellants made a development application to the Break O'Day Council for the construction of a shed or workshop as Stage 1, and as Stage 2, a two-storey, three bedroom split level residence. The Council issued a permit for this development subject to nine conditions.

3 Mr Manning ("the respondent") owns a property across the road from Lot 800. He made representations to the Council when the application for a permit was advertised and following its grant, he lodged an appeal to the Resource Management and Planning Appeal Tribunal ("the Tribunal").

4 On 12 September 2005 the Tribunal varied the Council's decision by:

* deleting the shed or workshop from the permit; and

* altering some of the conditions and deleting others.

5 The appellants have appealed to this Court against the Tribunal's determination pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25, subs(1) of which limits the grounds of appeal to questions of law.

6 At the hearing of the appeal, Ms Schuh appeared for the Break O'Day Council and stated that the Council did not wish to be heard. Mr Stanton appeared for the appellants and Mr Brett for the respondent.

7 The site plan shows that the proposed shed and house will be built quite close to each other and a short distance from Greenbank Drive which provides access to the appellants' property, the respondent's property and a number of other nearby land owners.

8 The workshop would be very substantial. According to the plans it would be 18 metres x 9 metres. To this should be added two covered outdoor areas, one, measuring 6 metres x 13.8 metres, attached to one end of the shed and the other, measuring 4.8 metres x 22 metres, attached to one side of the shed. The plan is to use the former for under cover car parking and the latter for storing four 23,150 litre rainwater storage tanks. Thus the total roof area of the proposed workshop would be 24 metres x 13.8 metres, making it almost exactly the same roof area as the proposed house.

9 The proposed access to the workshop is through a large heavy roller door or a nearby door designed for access by persons only. Inside there will be a vehicle inspection pit. At one end there will be a fully enclosed store and a separate crib room, equipped with stove, oven, fridge and sink. Next to the crib room a toilet, shower and change room is proposed. The height of the workshop will be 6.5 metres and it will be finished with pale eucalypt Colorbond walls and wilderness Colorbond roof.

10 The development application states that the appellants wish to construct the workshop "in order to facilitate their main interest in restoring classic cars".

11 The Tribunal made the following findings of fact with respect to the proposed use of the workshop at pars11 - 13 inclusive of its reasons for the determination:

"11 Mr Neil Kempster, one of the two applicant developers gave evidence that the shed would be used to store materials and equipment associated with the construction of the proposed residence. In his written proof of evidence, Mr Kempster stated that a sizeable shed is needed in order to completely house his collection of vintage/veteran machinery in a secure structure so that nothing would visible [sic] from the road area. Mr Kempster stated that the applicants are collectors and restorers of vintage/veteran machinery which they describe as a 'not for profit hobby'. Mr Kempster contended that his hobby could not be construed as a commercial business as it is unprofitable.

12 It is the applicants' intention to erect the shed and then progressively construct the residence as funds become available over a period of time which could be up to 10 years.

13 It was Mr Kempster's evidence that the shed would house a 1964 Fordson Super Major tractor, a grader blade, a slasher, a disc plough, and Austwood walk behind mower, a 1920s Moffat 2hp engine, a 1936 Wolsey motor, a 1920s Rosebery motor, an International 12 ton tray truck, a Massey Ferguson front end loader plus other heavy vehicles and stationery engines. Mr Kempster stated that his collection is currently housed in a garage attached to his residence in Victoria where he undertakes his restoration activities. Whilst he conceded that the activities generate a certain amount of noise, he claimed that it is not anymore significant than the noise from the operation of a chainsaw and commented that he had not had any complaints from his Victorian neighbours. Mr Kempster advised that the activities include drilling, grinding and some spray painting which activities he would continue in the shed at Four Mile Creek. He undertakes these activities with his sons who are also involved in the restoration hobby and anticipates that other people may visit the site to also work on the machinery."

12 At par18 of its reasons, the Tribunal referred to evidence given by Mr MacGregor, surveyor and town planner:

"18 The development application submitted by East Coast Surveying Pty Ltd on behalf of Neil Kempster stated that the owners wished to construct the shed/workshop 'in order to facilitate their main interest in restoring classic cars.' In his written submissions to the Tribunal Mr MacGregor stated that Mr Kempster had advised that the use of the shed was 'to provide storage/security for supplies et cetera when constructions starts on our home' and 'the shed will provide the area to house the equipment to maintain and improve the property. eg maintain the fire breaks for our neighbours, plant and attend to new tree plantings, fencing repairs/replacement issues, et cetera'. Mr MacGregor referred to Mr Kempster's evidence as to the machinery which will be stored in the shed/workshop. Mr MacGregor maintained that all of the machinery would be used on the site."

13 The Council recommended that a permit issue for the workshop, Stage 1, upon the basis it was ancillary to a residential use.

14 The appellants' application for a permit falls to be considered under the Break O'Day Council Planning Scheme 1996 (as amended) ("the Scheme"). The appellants' land is zoned Environment Protection. The Scheme, cl 11.3.1, provides that "Residential" is a permitted use class in this zone, but "Industrial" is a prohibited use class. Clause 3.1.6 requires that "Each use must be categorised within a use class." Clause 5.3.3 defines Residential Use Class as follows:

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

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

15 The Scheme, cl 3.3.1 provides that a use is permitted "if it can demonstrate compliance with the acceptable solutions applicable to that use" and the Council must grant a permit for a permitted use but may impose conditions. The Scheme prescribes acceptable solutions for each zone, but for the purpose of determining this appeal, it is not necessary to examine any of them. Suffice to say that the use of the land for a residence, as defined by the Scheme, is a permitted use and a permit must be granted but conditions may be attached to it. This is what the Council did and this is what the Tribunal did, but with slightly altered conditions. The appellants make no complaint about any of that.

16 The workshop is a different matter. Correctly, neither the Council nor the Tribunal considered the use of the land for the workshop as a residential use as defined by the Scheme. After directing that, "each use must be categorised within a use class", the Scheme cl 3.1.6 goes on to provide:

"3.1.6 ... 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 values, intent and objectives of the zone in which it is to take place."

17 After directing that the use of land be categorised into use classes in accordance with the definitions, the Scheme, cl 5.3.1 states:

"5.3.1 ... A use class may include integral and subservient ancillary use and development associated with the use."

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 as categorised in Clause 5.3."

19 The Tribunal held that the use of the land for a workshop was not:

* an integral and subservient ancillary use associated with residential use, (cl 5.3.1); nor

* an integral and subservient part of a proposed use, (cl 3.4.1)

* the use of the land for a workshop had to be categorised separately in obedience to cl 3.4.2.

20 The Tribunal determined that compliance with cls 3.4.2 and 3.1.6 required it to categorise the proposed use of the land for a workshop as industrial. Such use is a prohibited use in an environment protection zone and hence the Tribunal's determination that the workshop be deleted from the permit.

21 Ground 1 of the amended grounds of appeal asserts that the Tribunal erred in law in the conclusion that the use of the workshop was not integral and subservient to the proposed residential use "when that conclusion was not reasonably open on the evidence before the Tribunal or alternatively on the facts found by the Tribunal." Bearing in mind that the grounds are limited to questions of law, Mr Stanton argued this ground from the point of view of "Wednesbury unreasonableness" and submitted that no Tribunal acting reasonably could have reached that conclusion.

22 There was evidence that the appellants intended to live on the property at some uncertain time in the future. The plan was to build the workshop first and then build the house as funds became available. There was evidence that it could be as long as ten years before the house was built. Meantime, the shed would be used to store materials and equipment for building the house, agricultural equipment and the appellants' collection of vintage vehicles and machinery. There was evidence that until the appellants retired and moved to live on the property, they would gradually transfer their collection from Victoria into the workshop. I have already set out the Tribunal's findings at par13 of their reasons for determination with respect to this evidence.

23 The Tribunal referred to the following paragraphs in its decision, Reynolds v Dorsett Council [2004] TASRMPAT 42 at pars17 and 18:

"The word 'integral' is defined in the Macquarie Concise Dictionary as 'having to do with a whole; belonging as a part of the whole; constituent or component. Necessary to the completeness of the whole.' Similarly in the Oxford Concise Australian Dictionary. The Tribunal is unable to find upon the above evidence that the proposed extended residential use is necessary to the completeness of the whole use of the site, although it may be a constituent of that total use.

18 The word 'subservient' is defined in the Macquarie Concise Dictionary as 'serving or acting in a subordinate capacity; subordinate'. Similarly in the Oxford Concise Australian Dictionary. Upon the above evidence the Tribunal is unable to find that the proposed development or use for residential purposes would be 'subordinate' to any other use of the site."

24 It should be noted at the outset that in cls 3.4.1, 3.4.2 and 5.3.1 the words "integral" and "subservient" are joined by the conjunction "and". Bearing in mind that words must always be construed in the context in which they appear (per Isaacs and Rich JJ in Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449 at 455) a use will only be integral and subservient to a permitted use if it serves the permitted use and makes it more complete. The Scheme uses the word "subservient" not "subordinate" to make it clear that the use must serve the permitted use. "Integral" indicates that the service must be such that it is a component of the permitted use. So, a carport or garden tool shed would serve a residence and be a part of, or an aspect of, the residential use. A large car park adjacent to a supermarket would be an aspect of, and serve the permitted use of retail commercial. In Dixon v Fitch's Garage Ltd [1975] 3 All ER 455, the question was whether a canopy over petrol pumps at a service station was "plant for the purpose of trade" within the meaning of a UK tax Act. Brightman J said at 458:

"An 'integral part' is, I apprehend, something which is necessary to the completeness of the whole." [emphasis added]

25 In the present case, it was open to the Tribunal to regard the workshop as being far more than integral and subservient to the residence in that sense. It might be said that insofar as it was to be used for storing garden equipment and the like, it would be integral and subservient to the residence, but having regard to its size and the additional proposed use for storing and restoring vintage machinery and vehicles, it could be said that the proposed use was no longer integral and subservient to the residence. It would, of course, be convenient for the appellants to be able to pursue their hobby in a building close to their residence, but convenience is not the test for determining whether the proposed use serves the permitted use and forms a necessary part of that use.

26 In Potter v City of Holdfast Bay No ERD-03-259 [2004] SAERDC 14, Trenorden J said at par32:

"Logically, if land is proposed to be used for a purpose integral to the business purpose for which adjoining land is already being used, by the same occupier, it follows that the use of the new land must be characterised as being for the same business purpose as that for which the adjoining land is already being used. The result might be different if the proposed use is related, but not integral, to the use of the adjacent land. The question then becomes one of fact as to whether the proposed use of the land as described in the application, is integral to the existing use of the adjoining land. If the answer is in the affirmative then the use on the new land takes on the character of the existing use on the adjoining land. The zone and other relevant provisions would then be canvassed to determine whether the proposed development (ie. change of use) on the new land can be accommodated within the desired character for the zone."

The Tribunal correctly construed the Scheme, and the conclusion that the workshop was not integral and subservient to the proposed residential use was clearly one that was reasonably open to the Tribunal to make. Accordingly, ground 1 is not made out.

27 Ground 2 of the amended grounds of appeal alleges error in that the Tribunal construed the word "integral" as meaning that the use of the workshop was required to be an essential or intrinsic part of general residential use. For the reasons that I have already given, this ground must fail.

28 Ground 3 is the converse of ground 2 and that also must fail.

29 Ground 4 alleges that error is reflected in par20 of the Tribunal's reasons for determination, which provides:

"It is difficult to envisage how the construction of the shed housing such materials can be classified as ancillary to a residential use when the residence is not in situ and may not be constructed for a period of up to 10 years. The definition of Residential Use Class as contained in Clause 5.3.3 is 'Use of land for one or more dwellings providing predominantly longer term accommodation'."

30 Mr Stanton submitted that the Scheme, cl 3.4.1, referred to a proposed use constituting "an integral and subservient part of an existing or proposed use ... ", and therefore it was immaterial that the house might not be constructed for a period up to ten years. There may be some substance in this submission, although as a matter of logic, if the house was not to be constructed for a very long period of time it might be said that a proposed use would not be integral and subservient to a use that would not occur for many, many years into the future. However, it is unnecessary to pursue this ground further in the light of the conclusions expressed with respect to ground 1.

31 Grounds 5 to 8 inclusive, allege error of law in the Tribunal's finding that the proposed use for the workshop fitted the industrial use class as defined by the Scheme. Ground 5 alleges that the finding of fact that the proposed workshop fell within the industrial use class zone was one that was not reasonably open to the Tribunal. Ground 6 alleges an error of law in that the Tribunal failed to properly construe industrial use class as being confined to uses that involve a trade or commercial operation. Ground 6 complains of error by failing to hold that a proposed use must include "systematic work" before it could be categorised as industrial. Ground 8 is a re-statement of ground 5.

32 All these grounds overlook the mandates prescribed firstly, by the Scheme, cls 3.4.2 and 5.3.1 which required the Tribunal to categorise the use of the land for the proposed workshop "in accordance with the definition set out in clause 5.3.3" and secondly, by cl 3.1.6 which said that in case of doubt there must be categorisation "within the most appropriate use class" taking into account the matters set out in the clause. Clause 5.3.3 prescribes six separate use classes, viz:

"Use of land for the manufacture, dismantling, processing, assembly, storage, distribution or maintenance and repair of goods and products.

car and machinery repair yards, fabrication, manufacture and production of goods and articles, metal and wood fabrication establishments, sawmills, storage and distribution warehouses, transport depots, wood yards, scrap yards, abattoirs and fuel depots."

33 Mr Stanton did not submit that the Tribunal should have categorised the proposed use as one of the other five use classes (apart from his submissions in support of grounds 1 to 4). Even if properly construed, industrial use class requires an element of trade, commercial operation or systematic work, and I express no opinion about any of that, the Tribunal was obliged by cl 3.1.6 to make the best categorisation it could of the proposed use. Having properly rejected the proposed use as integral and subservient to a residential use, it was clearly open for the Tribunal to categorise it as an industrial use. It was the only reasonable option for the Tribunal. Grounds 5 to 8 inclusive are not made out.

34 Ground 9 was not argued and is not established. Ground 10 complains about a finding made by the Tribunal in par13 of the reasons for determination that in addition to the listed equipment that the appellants proposed to keep in the proposed workshop, it was also proposed to keep "other heavy vehicles and machinery". The ground alleges that there was no evidence to support that finding.

35 A finding of fact without any evidence at all to support it is an error of law. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

36 In his written proof of evidence, Mr Kempster wrote, "Yes we are collectors - restorers of vintage/veteran machinery ...". In his oral evidence to the Tribunal, Mr Kempster said that the collection presently consisted of three stationary engines, two tractors plus attachments and a 12 ton truck. Asked about whether he intended to acquire more vintage machinery and/or vehicles, Mr Kempster said:

"It would depend on the money and resources we're going to be putting into the shed and the house and the land development. I doubt there would be any more money for any new purchases."

37 Mr Kempster also said in his oral evidence that he did not intend to sell any of his vintage machinery or vehicles because "we're collectors".

38 It was open to the Tribunal to find from that evidence, particularly Mr Kempster's statement that he was a collector, that the proposed use would include the appellants' existing collection, plus other heavy vehicles and stationary engines that he would be collecting in future years. It may be that others would not make the same finding of fact, or even it may be argued that it was an erroneous finding of fact, but it is not a finding of fact made without evidence to support it. Ground 10 is not made out.

39 The remaining ground of appeal, ground 11, complains that the following finding made at par24 of the Tribunal's reasons for determination was not one reasonably open to the Tribunal upon the evidence or upon the facts it found:

"24 The objectives of the Environment Protection Zone as stated in Clause 11.2, and in particular subparagraph (a) which is to 'protect environmental, economic and community resources from inappropriate or premature development and to require high standards of resource management for use and development.' further reinforces a conclusion that the proposed use of the shed is not consistent with the Zone Objective. The type of noise and activity that would result from the proposed use is inappropriate in an area where the emphasis is on environmental protection."

40 The relevant facts found by the Tribunal are set out in par13 of its reasons for determination, which I have already set out above. The Scheme, cl 11.2.1, relevantly provides:

a) Protect environmental, economic and community resources from inappropriate or premature development and to require high standards of resource management for use and development.

b) Ensure that wilderness and high value conservation areas are protected from inappropriate development and to allow future planning controls to provide for their long term protection.

41 This Court exercises a supervisory jurisdiction over the work of the Tribunal. The Court's job is to ensure that the Tribunal's decisions are made in accordance with the law. It is not the Court's job to re-hear an appeal to the Tribunal, nor to substitute its view of the facts for that taken by the Tribunal. The Tribunal was quite entitled on the evidence to conclude that proposed activities associated with the appellants' hobby such as grinding, drilling and spray painting, would be inconsistent with the objectives of the environment protection zone. Ground 11 is not made out.