Limitation of Actions - Extension or postponements of limitation periods - Generally - General power of court to extend limitation periods - Specific power pursuant to Resource Management and Planning Appeal Tribunal Act 1993, s25 - Principles upon which discretion exercised - Explanation for delay - Prejudice - Merit of appeal to tribunal and court.

Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113, referred to.

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

Judgment Number: [2013] TASSC 46

1 These reasons deal with an application to extend the time within which an appeal may be brought against a decision of the Resource Management and Planning Appeals Tribunal ("the tribunal") made 26 February 2009.

2 The applicants are Mark Andrew Purton and Judith Purton. They own and live at a property at Snares Road, Morrleah in Tasmania ("the Purton land"). Athol Charles Jackson and Maureen Faye Jackson ("the respondents") own land which adjoins the Purton land. The respondents applied to the local council, that is the Waratah-Wynyard Council ("the Council"), for a planning permit to allow them to build a home on their land. The applicants lodged an objection. Notwithstanding that objection, the Council granted a planning permit. The applicants lodged an appeal against the granting of that permit with the tribunal. On 26 February 2009, the tribunal determined that it had no jurisdiction to entertain that appeal. Briefly, the reason for that was that it determined that the Council should not have granted the permit it did, therefore there was no valid permit and, as a consequence, no jurisdiction to deal with an appeal against that invalid permit.

3 There is no doubt that the applicants could have appealed the decision of the tribunal of 26 February 2009 in February/March 2009. They did not. Their explanation for not doing so was that the tribunal had said it had no jurisdiction to determine their appeal against the Council's planning permit on the basis that permit was invalid. They assumed therefore that, as a matter of fact, there was no permit, and that there was no need for any appeal from the tribunal's decision.

4 Unbeknownst to the applicants, the respondents, relying on the issue of the planning permit by the Council in the first instance, applied for a building permit. That application was rejected, and the respondents appealed that decision to the Building Appeal Board. That appeal was refused. The respondents then sought judicial review of the decision of the Building Appeal Board to reject their appeal. Up until then, the applicants did not realise that the respondents were acting as if their original permit was valid. The applicants were made aware of that when they were given notice that further steps were occurring in the form of the proceedings for review. They sought to be joined as parties. They believed that was the most cost-effective way to have the validity of the Council permit determined between relevant parties.

5 Porter J heard the application for judicial review. On 25 June 2010, he published reasons and made certain orders as a consequence (see Jackson and Anor v Building Appeal Board and Others [2010] TASSC 29). Porter J set aside the decision of the Building Appeal Board by which it rejected the respondents' appeal to it, and declared that the permit granted by the Council in respect of the construction of a dwelling on the respondents' land was valid in that it was within the Council's powers under Pt4 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). His Honour remitted the matter to the Building Appeal Board to further determine the appeal that had been made to it. At that point, the applicants say they realised they needed to do something further if they wished to maintain their opposition to the respondents building of their home.

6 The applicants could have appealed the decision of Porter J, but did not do so. Instead, two days after the decision was published, the applicants wrote to the tribunal asking that their appeal in respect of the original planning permit, which the tribunal had originally determined it had no jurisdiction to deal with, be heard. This was on the basis that they understood Porter J to have determined that a permit had been validly granted, that the tribunal's reason for not dealing with their appeal against the granting of that permit had been determined to be wrong, and that therefore the tribunal should have been able to deal with their appeal. The tribunal considered that request after receiving written submissions from the parties. It determined, on 23 August 2010, that it had jurisdiction, and could proceed to hear and determine the appeal. On 30 August 2010, the respondents appealed that decision to this Court. On 10 June 2011, Wood J held that the tribunal had no power to proceed to hear and determine the applicants' appeal against the grant of the permit, and made an order setting aside the tribunal's decision of 23 August 2010.

7 The applicants then took two steps. On 29 June 2011, they lodged an appeal in this Court against the tribunal's February 2009 decision. The grounds of the appeal were in the following terms:

1. the permit granted by the Waratah-Wynyard Council on 21 November 2008 was invalid
2. the appeal by the Purtons was invalid
3. the Tribunal had no jurisdiction to further hear and determine the appeal by the Purtons."

By that appeal, the applicants sought orders allowing the appeal, quashing or setting aside the tribunal's decision, and requiring the tribunal to hear the appeal according to law.

8 The applicants' second step was to appeal the decision of Wood J. That appeal failed and reasons were published by the Full Court on 19 July 2012 (see Purton v Jackson [2012] TASFC 2). The applicants were aware that, if that appeal to the Full Court failed, their only remaining means of pursuing their opposition to the respondents building of their home was to pursue their appeal against the tribunal's February 2009 decision.

9 When the applicants filed their 2011 appeal against the tribunal's original decision, they knew that they were well out of time to do so. The Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act") provides that appeals against tribunal decisions be made within 28 days of the relevant decision. Because the appeal was filed over two years after the decision was made, the applicants needed to apply for an extension of time within which to bring their appeal, at least until the date upon which they filed it, namely 29 June 2011. With their notice of appeal, the applicants therefore filed an interlocutory application by which they sought that extension. In support of that application they filed a number of affidavits. The respondents opposed the application to extend time and filed affidavits in reply.

10 At the hearing of the application to extend time on 10 December 2012, there was also some oral evidence.

11 There is no dispute that this Court has a discretion to grant the extension of time sought (see RMPAT Act, s25(3)). However, the RMPAT Act does not provide any guidance as to the matters about which the Court needs to be satisfied before granting an extension. This Court has dealt with applications to extend time in other civil matters and there is no reason why the principles applied would not be apposite here. In Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113, the Court considered an application to extend time under limitation legislation. Their Honours, Underwood J (as he then was), Evans J and Blow J (as he then was), said at par[23]:

"23 In any event, it is clear that although the issue of whether the defendant will be able to get a fair trial is a significant, if not decisive, factor, it is certainly not the only relevant factor in the exercise of the discretion. The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced. See Knight v Smith [1975] Tas R 83; Klein v Domus [1963] HCA 54; (1963) 109 CLR 467; Parsons v Doukas (2001) 52 NSWLR 163; Marr v Green (1994) Aust Torts Reports 81-277."

12 Neither counsel in this matter disputed those were appropriate principles. Counsel for the respondents also argued that the applicants needed to demonstrate, not only that they had an arguable case on appeal to this Court, but also that any appeal to the tribunal had merit. He submitted there was little point in extending time to allow this appeal if there was no or little merit in the applicants' case to the tribunal which is where the matter would go in the event of a successful appeal. Again, counsel for the applicants did not dispute that was a matter to which this Court should have regard.

13 There is no doubt that the delay of two years and four months in this matter is a lengthy one. There is also no doubt that regard therefore needs to be had to the applicants' explanation for that delay and any consequences which might have flowed from the delay by way of prejudice to the respondents.

14 Counsel for the applicants submitted that there was an adequate explanation for the applicants' delay in bringing their appeal. He submitted that, after the determination by the tribunal that it had no jurisdiction because there was no valid permit, the applicants relied on that decision and so did not appeal within the time permitted. They did not then believe they needed to appeal. I accept that was not unreasonable. Counsel further submitted that was the situation until the applicants became aware of the judicial review proceedings. I accept that is an adequate explanation for the delay to that point.

15 Counsel for the applicants then submitted that, when the applicants became aware that the respondents were, in effect, seeking to rely on the original permit grant, the applicants took steps to uphold the original decision of the tribunal to the effect the permit was invalid. Porter J's decision, however, in June 2010 determined, amongst other things, that the permit was valid (I will comment later in these reasons on precisely what his Honour did determine and what he was required to determine). His Honour remitted the matter to the Building Appeal Board.

16 Counsel for the respondents submitted that the applicants could have appealed that decision, but did not. That is probably so. However, it cannot be said that the applicants did nothing. It also cannot be said that the respondents were in any way unaware that the applicants still maintained their objection to the respondents' home being built.

17 What the applicants did do within two days of the decision of Porter J was to seek to have the tribunal determine its appeal against the original permit, since the basis for its refusal to do so in February 2009 had been found by Porter J to be wrong. The respondents opposed that, arguing that the tribunal was functus officio. The tribunal determined it did have power to proceed to determine the appeal. The respondents appealed that decision.

18 It is not simply steps before courts and/or tribunals which may be taken to explain delay. Other steps such as meetings to achieve the objective may be valid explanations for delay, particularly where those steps make the other party aware that their position is contested: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344. That case dealt with an extension of time within which to bring an application for review of an administrative decision. Wilcox J summarized applicable principles and then dealt with the facts of that case when dealing with the issue of an explanation for delay. In that case, the applicants, rather than launch into legal proceedings, sought meetings and wrote letters in an effort to resolve the problem they had. His Honour accepted as being an adequate explanation for delay the steps which had been taken, particularly given the decision-maker, whose decision they were seeking to overturn, was well aware of the continued objection to the decision.

19 In this case, the criticism by counsel for the respondents was that the applicants did not appeal the decision of Porter J and further, that steps taken by the applicants all delayed the determination of any appeal by the tribunal. I do not accept the first criticism as a valid one because, as I said, the applicants did take a step designed to resolve the question of their appeal to the tribunal and the efficacy or otherwise of any Council permit. As to the second criticism, with respect, the respondents actively opposed the tribunal dealing with the applicants' appeal to it, and when that failed, they appealed to this Court, resulting in the decision of Wood J. By those steps, they actively sought to prevent the applicants having any appeal to the tribunal dealt with. Valid or otherwise, those steps delayed matters as well.

20 I am satisfied in the circumstances that the applicants have provided a reasonable explanation for delay up until the decision of Wood J was published on 10 June 2011. Their appeal the subject of these proceedings was lodged within a fortnight of that decision, as was their interlocutory application for an extension of time.

21 The application to extend time, though filed in June 2011, was not heard until 10 December 2012. An order for the setting down of the matter was made in December 2011. The Court file records that by consent the listing of the matter was not proceeded with pending the decision of the Full Court in the appeal against the decision of Wood J. That decision was published on 19 July 2012. The delay between then and December was as a result of difficulties in the filing of further material and the availability of court and counsel for a hearing. No adverse finding on the issue of delay can be said to flow during the period which followed the filing of the appeal and application for extension of time.

22 I am satisfied overall that there has been an adequate explanation for delay.

Prejudice to the respondents as a consequence of that delay

23 Counsel for the respondents referred to the prejudice identified by Mr Jackson at pars[9] - [20] of the affidavit he swore on 16 August 2012, and to that identified by Mrs Jackson at pars[4] - [5] of her affidavit sworn the same date. The material refers to social isolation as a result of selling their home in Burnie in anticipation of building the new home. It also refers to loss and damage to their Pages Road property, the costs of travel on a daily basis and surveillance, increased building costs, reduction in the value of superannuation, health problems and legal costs. Counsel submitted that all these effects have been caused by the delay in their building plans, and that that delay has been caused by the applicants.

24 He submitted that the applicants caused delay by:

- appealing to the tribunal and then not proceeding to somehow finalise those proceedings;

- pursuing the same sort of arguments in the judicial review proceedings;

- not appealing the decision of Porter J in those proceedings;

- unsuccessfully appealing the decision of Wood J.

All of these steps delayed the determination of the appeal before the tribunal. Further, the applicants' conduct was inconsistent, while the respondent's position has been vindicated at each stage.

25 I have already indicated that there has been a reasonable explanation for delays in this matter. What must also be noted is that the respondents have not been entirely blameless when it comes to considering that it is now nearly five years since the Council first granted a permit, and the claimed adverse impacts upon them by that passage of time. They began the process which resulted in proceedings for judicial review before Porter J. They were successful in those proceedings in that his Honour determined that the Council was capable in law of granting the permit that it did. Indeed the applicants could have appealed that decision and did not do so. However, what they did do, expeditiously, was seek to have their original appeal to the tribunal dealt with. The tribunal made a determination it had power to do that. It might be argued that the respondents could have accepted that decision and allowed the tribunal to determine the issue.

26 However, instead, the respondents halted that process by appealing the decision of the tribunal. They were successful. The applicants appealed the decision of Wood J as to that and were ultimately unsuccessful. However, it is not the case that the applicants waited until the decision of the Full Court before taking a substantive step to try to bring this matter to a head. They filed this present appeal and application in June 2011.

27 I accept that the respondents have incurred legal costs. Clearly both parties have, and both have contributed to a greater or lesser degree in the accumulation of those costs. The respondents describe in their affidavits a number of other impacts upon them as a result of delay. While it may be accepted those impacts have occurred, and that they might not all have occurred had a usable permit been available to the respondents at an earlier date, the delay has not been wholly the fault of the applicants and it could be argued that some of the impacts have arisen as a consequence of the respondents anticipating the granting of a usable permit, rather than waiting to have it before making certain commitments. I accept that the delay has been stressful to all concerned, but again say that the delay has not been wholly the fault of the applicants.

Merits of appeal to this Court and the tribunal

28 There is no dispute that one of the issues to be considered on this application is the merits of the appeal to this Court. However, the merits of any appeal to the tribunal are also relevant, since it is accepted by the parties that, if the extension of time application is successful and the appeal heard as a consequence is also successful, the result will be that the applicants' appeal against the granting of the planning permit to the respondents by the Council, first made to the tribunal on 4 December 2008, will have to be determined by the tribunal. It is trite to say that if there is little or no merit in the appeal to the tribunal, there is no point in exercising the Court's discretion in favour of the applicants to send it back there.

29 There is no suggestion that the applicants did not invoke the jurisdiction of the tribunal promptly in 2008.

30 Counsel for the applicants submitted that the appeal to this Court was effectively guaranteed to succeed. There were two bases for this argument. Firstly that the tribunal had incorrectly determined that the permit was invalid, and secondly that, having classified the respondents' proposal as prohibited, it did not set aside the permit.

31 The circumstances which gave rise to the tribunal's decision of 26 February 2009 are relevant. It appears that the registrar of the tribunal had some concerns about the jurisdiction of the tribunal to hear the appeal and raised those concerns with the Council. The Council then sought advice from its solicitor. A written letter of advice dated 14 January 2009 was received by the Council. As a consequence of the advice received, which it sent to the applicants and the respondents, it wrote to the registrar of the tribunal seeking that a preliminary jurisdictional point be determined.

32 On 30 January 2009, counsel for the applicants wrote to the registrar, copying his letter to the solicitor for the Council and the respondents. In substance he sought that the jurisdictional point be dealt with separately from a substantive hearing. He said that, if the jurisdictional point was determined in accordance with the advice from the Council's solicitor, there would be no need for a substantive hearing. The solicitors for the respondents also wrote to the registrar disputing generally the correctness of the advice of the Council's solicitor. The registrar responded and then counsel for the respondents wrote, saying:

"Given that the current issue is a jurisdictional issue, I will confine my comments to that matter.

I would submit that the Tribunal has jurisdiction pursuant to s61(5) of the Land Use Planning and Approvals Act 1993. A decision has been made by a Planning Authority to grant a permit. A person has appealed that decision, giving the Tribunal jurisdiction."

33 The tribunal determined that, by reference to cl 3.3.5 of the Waratah-Wynyard Planning Scheme 2000 ("the Scheme"), the Council was obliged to refuse any application for a planning permit that was unable to demonstrate that it could conform in accordance with any Scheme standard. In this case, the tribunal determined that the application was for a dwelling, and that it therefore fell within the use class "Residential" which was a secondary use in a Primary Industries Zone. Because the application could not satisfy either the Acceptable Solutions or the Performance Criteria in cl 9.4.1 Issue 9.0 of the Scheme, which was that dealing with the location of secondary uses, the Council was obliged to refuse it and should have. It had no discretion to do otherwise.

34 The tribunal determined that, as a consequence, the permit purportedly issued by the Council was plainly invalid. It then determined that:

"From this the only consequence is that the appeal is invalid and the Tribunal enjoys no jurisdiction to further hear and determine the matter."

35 Counsel for the applicants submitted that the tribunal's decision was clearly wrong having regard to the decision of Porter J, and that his Honour's decision was binding on the parties. He said in his written submissions at pars[16] - [17] dealing with the merits of the appeal to this Court:

"16 The question in this appeal is whether the Tribunal erred in determining the permit was invalid. A necessary question of fact and law in these proceedings is whether the permit was valid or invalid. That precise question was finally determined in the declaration of Porter J. He made a declaration to the effect that the permit was valid, a declaration sought by the Jacksons, which was therefore a final determination of the factual and legal questions involved in determining the validity of the permit.

17 Porter J held the permit was valid because although if characterised as the Tribunal characterised it the development would be prohibited, it was open to the Council to characterise it in a way which made the proposed development permissible; ie as an ancilliary use, not a secondary use."

36 What counsel then argued was that, because the permit was a valid one, the tribunal's decision contained jurisdictional error in that it was based on a mistaken denial of jurisdiction. Hence there had been an error of law. He described the error as being one as to a jurisdictional fact, namely the existence of a valid permit.

37 As to the second aspect of the argument by counsel for the applicants, he made a number of submissions (at pars[21] - [36]) about the failure of the tribunal to do that which, by statute, it was obliged to do, which was to conduct a merits based review of the Council's decision. In substance, what counsel argued was that the tribunal did not discharge its functions properly by simply making a determination that it had no jurisdiction. It should have, in addition to that determination, made an order by reference to the RMPAT Act, s23(2). That section requires the tribunal to either affirm or vary the decision appealed against, or set it aside and substitute its own decision or remit the matter to the Council for consideration. Pursuant to the LUPA Act, s62(1)(c), the tribunal could also direct the Council to grant a permit with or without conditions or direct the Council not to grant a permit.

38 There are two difficulties with this submission. Firstly, counsel for the applicants, if regard is had to his letter to the registrar of the tribunal dated 30 January 2009, did not then suggest that the tribunal should do otherwise than simply determine the preliminary point. He did not ask the tribunal to make any consequential order once that preliminary determination was made. Secondly, it is arguable in any event, that once the tribunal found it had no jurisdiction to deal with the appeal, it had no power to make any of the orders counsel argues the tribunal should have made. Whether in the circumstances the appeal to this Court would succeed on that ground is not clear.

39 However, having regard to the first argument mounted by counsel for the applicants, to which there was no real opposition, I am satisfied that there is sufficient merit in the appeal to this Court to warrant time being extended.

40 Moving to the question of whether there is merit in the applicant's appeal to the tribunal, counsel for the applicants submitted that the appeal to the tribunal had good prospects of success. Before referring to counsel's submissions, it is useful to look again at the applicants' grounds of appeal to the tribunal and also at the applicants' original representation to the Council. In the latter, the applicants raised an objection to there being any setback waiver as sought by the respondents. That setback waiver was nevertheless approved. However the way in which the development was characterised by the Council was not apparent from the approval.

41 In the first ground of their appeal, the applicants queried the basis upon which the setback waiver had been granted and indicated it was contrary to the Scheme. They referred to cl 9.4.2 Issue 2 subcl 2(1)(b) of the Scheme. That relates to Residential Design. The Acceptable Solution relating to setback to boundaries required one of 50 metres. The corresponding Performance Criteria 2(1)(b), required that any development demonstrate that sufficient building setbacks would not cause adverse impacts on adjoining residences and would not result in unreasonable fettering of agricultural uses or other resource development activities. In the second ground of appeal, the applicants again referred to the setback waiver and the issue of there being insufficient buffer between the proposed dwelling and their activities. They referred to cl 9.4.1 Issue 9.0, Location of secondary uses. This was the clause set out in the tribunal's decision which resulted in it concluding that, because the application was for a dwelling, the Council had no power to grant a permit.

42 In the Scheme, cl 9.4 is entitled "Standards for use or development in the Primary Industries Zone". The first sub-heading, cl 9.4.1, has the same heading. Clause 9.4.1 Issue 9 falls within that group of standards. The second sub-heading, cl 9.4.2, is entitled "Additional standards for use or development in secondary use classes in the Primary Industries Zone". If the application of the respondents is characterized as a secondary use, it would fail because it cannot satisfy either the Acceptable Solution or Performance Criteria which appear in cl 9.4.1 Issue 9. Clause 9.4.2 Issue 2 would simply not arise for consideration in those circumstances. Both clauses to which the applicants referred in their notice of appeal to the tribunal are predicated upon the development being characterized as a secondary use. No other alternative was referred to.

43 Counsel for the applicants submitted that any decision of the tribunal on the applicants' appeal would depend upon the manner in which the development was characterized and, as a consequence, whether the issue of fettering might justify the refusal of any permit. These were matters which had not been determined by the tribunal, and should be so. He submitted that the tribunal had already indicated its thinking in the form of a characterization it used for the purpose of determining it had no jurisdiction, and there were good reasons why that characterization was appropriate. He referred to the fact that the application referred to its being for a dwelling, that the accompanying plans referred to a proposed residence, that the accompanying planning submission referred to a secondary residential use and expressly disavowed reliance upon an ancillary use. Counsel also made submissions about what amounted to an ancillary use and the lack of information in the application which might support such a conclusion. He also referred to the issue of fettering which he submitted arose because the existence of a dwelling would curtail the applicants' means of vermin control, and therefore potentially increase the cost of that.

44 On the other hand, counsel for the respondents submitted that the applicants are now estopped by the decision of Porter J from seeking to challenge the validity of the original planning permit before the tribunal. Counsel argued that issue has been determined and that, in effect, counsel for the applicants had conceded that in pars[16] - [17] of his written submissions, extracted at par[33] of these reasons. It must follow that there would be no merit in sending any appeal back to the tribunal.

45 In support of this contention, counsel for the respondents referred to Port of Melbourne Authority v Anshun Pty Ltd No 2 [1981] HCA 45; (1981) 147 CLR 589. In that case, in an agreement for the hire of a crane, the hirer agreed to indemnify the owner in respect of any claims arising from its use. A worker suffered an injury arising from the use of the crane and sued the hirer and owner for damages. Notices of contribution were served by each defendant on the other, but that of the owner was confined to a claim for contribution. Damages were awarded and the damages apportioned. The owner then sued the hirer relying on the indemnity. The action was permanently stayed. On appeal to the High Court that order was upheld. The court held that the owner was estopped from raising the indemnity agreement on the grounds:

"(a) that it had been unreasonable in refraining from raising it in the first action since the indemnity agreement was a defence to the hirer's claim for contribution in the first action and was so closely connected with the subject matter of that action that it was to be expected that the owner would raise it as a defence and as a basis for recovery from the hirer; and

(b) that a judgment in the second action on the indemnity would conflict with the judgment entered in the contribution proceedings; ...".

In particular counsel referred to a passage quoted at 598. At 597 - 598, the court said:

"For a similar reason this is not a case of issue estoppel in the strict sense. The Full Court was correct in deciding that the existence of an indemnity is a defence to a claim for contribution under s 24 (1) (c) of the Wrongs Act and that the absence of an indemnity is not an ingredient in the cause of action for contribution. It was not a necessary step to the decision that Anshun was entitled to contribution for the Court to decide that the Authority was not entitled to an indemnity against Anshun: Carl Zeiss (1967) 1 AC, at p 965 . Had the Authority pleaded the indemnity as a defence to Anshun's claim for contribution, a decision on that defence would have been a necessary step to the ultimate decision that Anshun was entitled to contribution. The defence of indemnity not having been raised, the judgment for Anshun did not involve a determination of that issue. (at p598)

The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319) . The Vice-Chancellor expressed the principle in these terms:

'where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'"

46 Porter J in his decision canvassed not only the provisions of the Scheme but also the material put to the Council to support the application for the planning permit. He set out the definitions of both the Residential Use Class and the Resource Development Use Class. He also referred to cl 3.4 of the Scheme which had the heading "Use or development within more than one use class". He referred in particular to cl 3.4.1 which provided:

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."

"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."

48 In effect, what his Honour described was an alternative path to the granting of a valid permit not considered by the tribunal. His Honour then referred, at pars[14] - [17], to the material which made up the application to the Council. There was a pro forma application which had been filled in which referred to a dwelling, there was a report of a planning consultant which accompanied the application and a letter written by the respondents. While the report, written some time before the application was lodged, disavowed reliance on the ancillary use provision, confirming instead reliance on the secondary use provisions, the letter written by the respondents made it quite clear that an ancillary use was being suggested.

49 At pars[46] - [53] Porter J then considered the material placed before the Council and the arguments raised by counsel for the parties before him. He said as follows:

"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."

50 His Honour noted that the applicants had not sought to argue that the material put before the Council by the respondents was not capable of satisfying the Council that the dwelling they proposed constituted an ancillary use. The applicants had confined their argument to one, found by his Honour to be untenable, to the effect that the Council was confined in its consideration to what was in the pro forma application for the permit. His Honour said in relation to that argument at par[60]:

"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."

51 On the face of it, there would appear to be some merit in the argument raised by the respondents that the applicants are now estopped by this decision from re-arguing the issue before the tribunal. However, with respect, regard needs to be had to what Porter J was dealing with. It was an application to review a decision of the Building Appeal Board by which it rejected an appeal against a refusal of a building permit. The Board had to consider whether a planning permit was required and had been granted. The Board referred to the tribunal's decision to the effect that the permit was a nullity and determined that the requisite planning permit had not been granted. A critical issue was whether the Board could simply rely on the tribunal's decision that there was no valid permit, or whether it was obliged to consider for itself whether the permit had been validly granted. His Honour found that the Board could not simply rely on the tribunal's decision and that there had therefore been an error. His Honour then said at pars[67] - [68]:

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."

52 What his Honour determined was whether, as a matter of law, the material before the Council was capable of amounting to an application relating to an ancillary use. That is the Council was not confined, as the applicants argued, by the wording of the actual application. To the extent that the development could be characterized as an ancillary use, the permit could have been validly granted. What that decision left open was for there to be a determination whether, as a matter of fact, the application was one for a secondary use or an ancillary use, and then what consequences flowed from whatever characterization was assigned to the application. His Honour did not determine, nor did he have to, whether, in every sense, the permit actually granted was unimpeachable.

53 Counsel for the applicants did indeed, in his submissions, suggest that Porter J had determined as a matter of fact and law that the permit was valid. However, with respect, I do not think that is correct. His Honour did determine that the material before the Council was capable in law of resulting in a valid permit. To that extent, I am satisfied that the applicants would be precluded from arguing before the tribunal the same argument they mounted before Porter J, namely that the Council was bound by the wording in the application. However, I am not satisfied that the applicants are, in the circumstances of this case, estopped from arguing before the tribunal whether, as a matter of fact, on all the material which Porter J determined the Council should have regard to, the application of the respondents was for a secondary use or an ancillary use.

54 It must follow there is some merit in the applicants' appeal to the tribunal. It must be accepted however that if the tribunal were to determine the application was for a secondary use, then the permit would be refused. If however it were to be determined it was an application for an ancillary use (to a Resource Development use), it would seem that, if the respondents were to amend their application so as not to seek a setback waiver and to accept a 50 metre setback, then the development would comply with the Acceptable Solutions in cl 9.4.2 Issue 2 and no issue of fettering would arise. While a great deal of evidence was led on this hearing about issues relevant to setbacks and fettering, the evidence is only relevant if the respondents maintain their application for a setback waiver of less than 50 metres.

55 The appeal to the tribunal sought to be pursued is an appeal against the grant of a permit with a setback waiver of less than 50 metres. Factors affecting setback waivers and fettering have not been dealt with by the tribunal and were clearly raised by the initial appeal. It is not for this Court to make detailed factual findings about whether or not the evidence about a particular matter does or does not impact favourably on the applicants' argument about setbacks. The matters raised by the evidence are matters which may need to be determined by the tribunal, and have not been. I am not satisfied that the evidence does not disclose matters which may be relevant and might be accepted from the applicants' point of view. If those issues come to be considered, then there is some merit in the applicants' case in relation to them.

56 The applicants carry the onus of satisfying the Court that:

- there is a reasonable explanation for their delay in filing and progressing their appeal to this Court, and

- there is either no prejudice to the respondents as a consequence of the delay, or that any such prejudice should not result in the Court's discretion being exercised in a manner which is unfavourable to them.

57 I am satisfied there is merit in both the appeal to this Court and to the tribunal. I am also satisfied that there has been an adequate explanation for delay. I am satisfied that the respondents have suffered some prejudice as a consequence of the delay. The question remains, should that mean this application should fail? It is unfortunate that the path taken between the parties over the last five years is what it has been. The tribunal's first decision and each of the parties have, to varying degrees, contributed to that path. However, the applicants' appealed the granting of the initial permit as they were entitled to do. That appeal, not the question of whether the application for the permit was capable in law of producing a valid permit, has never been determined on its merits. In my view, any prejudice to the respondents is not so great that it should result in the applicants being prevented from having their appeal determined on its merits.

58 The application is to succeed. There will be the following orders:

1. That pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25, the time limited for bringing the appeal in this matter be extended to 29 June 2011.
2. That the applicants pay the respondents' costs of and incidental to this application for such period as shall be agreed by the parties, and in default of such agreement, as shall be determined by the Court.
3. That there be liberty to the parties to apply as to the hearing of the substantive appeal and further as to the issue of the period for which costs are to be paid.
4. That there be a Certificate for counsel.