Attorney-General v Estcourt and the Wilderness Society Inc (1995) [1995] TASSC 65; 4 Tas R 355; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; followed.

Land Use Planning and Approvals Act 1993 (Tas); ss48, 63, 64.

Planning Appeal Tribunal Director of Public Prosecutions

Judgment Number: [2000] TASSC 19

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL;

1 Calvary Hospital Hobart Inc ("Calvary") operates a hospital in an area of Hobart subject to the City of Hobart Planning Scheme 1982 ("the Scheme"). In purported compliance with the Scheme, Calvary obtained a development permit from the Hobart City Council ("the Council") for the construction of an additional floor within the west wing of the hospital. The floor, which is known as floor RL 82.07, was constructed in accordance with that permit.

2 Mr and Mrs Davies reside near the hospital. They formed the view that the floor had been constructed in contravention of the provisions of the Scheme and that the Council had not been authorised by the Scheme to permit the construction. Upon their application, the Resource Management and Planning Appeal Tribunal ("the Tribunal") issued a summons to Calvary to show cause why orders should not be made against Calvary referable to the construction pursuant to the Land Use Planning and Approvals Act 1993 ("the Act"), s64. In broad terms, that section enables people to initiate proceedings before the Tribunal in relation to any use or development of land in contravention of a planning scheme and to obtain orders referable to the same such as a restraining order, or an order that the contravention be made good.

3 Upon hearing the summons to show cause issued against Calvary, the Tribunal concluded that the construction of floor RL 82.07 was not in accordance with or authorised by the Scheme and that it had not been competent for Calvary to apply for a development permit for the construction, or for the Council to grant the permit. The Tribunal, in effect, concluded that the development permit was void. The Tribunal adjourned the further hearing of the summons to give the parties an opportunity to call evidence in relation to the consequential orders it should make.

4 Before the resumption of the hearing, Calvary obtained an order from this Court that the Tribunal show cause why it should not be restrained from proceeding further, on the grounds that:

"a) The Tribunal has no jurisdiction to make orders pursuant to the Land Use Planning & Approvals Act 1993, Section 64 against a person who has applied for and been granted an approval to carry out development issued in accordance with the provisions of Part 2 of the City of Hobart Planning Scheme 1982.

b) The Tribunal had no jurisdiction to declare that it was not competent for the applicant to apply for a planning permit for the construction and use of RL 82.07 or to declare that it was not competent for the Hobart City Council to grant such a permit."

5 The order to show cause was returned before me and these are my reasons for judgment referable to it.

6 It should be borne in mind that the order to show cause does not challenge the correctness of the Tribunal's findings that floor RL 82.07 was constructed in contravention of the Scheme and that the Council had no authority to permit the construction. What the order to show cause brings into contention is the jurisdiction of the Tribunal to make those findings. The source of the Tribunal's jurisdiction is the Act, s64, which relevantly provides:

"64. (1) Where a person contravenes or fails to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.

(2) The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section.

(ii) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings -

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed to comply with a provision of this Part; or

(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard -

(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and

(d) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and

(e) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.

(8) Where the Appeal Tribunal makes an order under subsection (3)(e) and the respondent fails to comply with the order within the period specified by the Appeal Tribunal, the Commission or a planning authority may, by leave of the Appeal Tribunal, cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.

(16) Proceedings under this section may be commenced at any time within 12 months after the date of the alleged contravention of, or failure to comply with, a provision of this Part."

7 To my mind, the drafting of s64 is clear and easy to follow. In the circumstances of the application against Calvary, before the Tribunal could make any order, pursuant to s64(3)(c), (d) or (e), it had to be satisfied, on the balance of probabilities, that Calvary had contravened or failed to comply with the provision of the Act, Pt 4. The following are the provisions in that Part which are relevant to these proceedings:

"48. Where a planning scheme or special planning order is in force, the planning authority must, within the ambit of its power, observe, and enforce the observance of, that planning scheme or special planning order in respect of all use or development undertaken within the area to which the planning scheme or special planning order relates, whether by the authority or by any other person.

(2) A person must not use land in a way, or undertake development or do any other act, that -

(a) is contrary to a State Policy, a planning scheme or special planning order; or

(b) impedes or obstructs the execution of any such scheme or order; or...".

8 For the purposes of the above provisions, the Scheme is a planning scheme and the Council is a planning authority. Accordingly, if, as the Tribunal found, the construction of floor RL 82.07 was contrary to the Scheme and the Council had no authority to grant the development permit, it seems that:

* the Council has breached s48 as it has not observed and enforced the observance of a planning scheme; and

* Calvary has breached s63(2)(a) as it has undertaken a development contrary to a planning scheme.

9 In support of the first ground of the order to show cause, it is submitted on behalf of Calvary that s63(2)(a) has not been breached as the words "contrary to a ... planning scheme" in that provision should be construed as applying only to using land or undertaking a development without a permit from a planning authority. For the purposes of this submission, it is said that it does not matter whether or not the permit is valid. It is contended that this construction should be adopted as otherwise blameless people are exposed to serious and unjustifiable consequences if they, in good faith, act on a void council permit and thereby contravene a planning provision. The potential consequences of breaching a planning provision are significant. The Act, s63(3), makes it an offence to breach s63(2), and s63(4) and (5) provide for a potentially substantial fine for a breach. Section 64(3)(c), (d) and (e) give the Tribunal substantial power in relation to contraventions.

10 I acknowledge that if the Act is not construed as Calvary submits it should be, those who inadvertently breach a planning provision in the manner in which it seems Calvary has, are placed in a precarious situation. Whilst this may seem unfair, it must be borne in mind that the Act does not impose mandatory consequences for a breach. It is unlikely that anyone would go to the trouble of prosecuting someone who inadvertently breached s63(2)(a) as a consequence of acting on a void council permit. If contrary to my expectations such a prosecution was successfully pursued, I cannot envisage a court imposing more than a modest penalty, if any. Again, whilst orders could be sought pursuant to s64(3)(c), (d) and (e) arising from an inadvertent contravention of a planning provision, it is up to the Tribunal to determine what orders should be made. If the contravention arose from a person acting in good faith on a void council permit, that would be a most significant factor in the Tribunal's consideration of what, if any, orders it should make. The discretion reposed in the Tribunal could, in many instances, go a considerable way towards ameliorating the potential harshness of blameless people being ensnared by the provisions of the Act as a consequence of their misconceived reliance on the validity of a development permit.

11 Regrettably, due to the complexity of local government legislation, planning schemes and the like, it is not uncommon for people to proceed, in good faith, with developments on the basis of void authorisations from planning authorities. The law reports are replete with illustrations as is demonstrated by the following decisions:

Attorney-General for Victoria v Melbourne and Metropolitan Board of Works [1965] VicRp 19; (1964) 11 LGRA 102;

Attorney-General v Birkenhead Borough [1968] NZLR 383;

Warringah Shire Council v Arthur H Gillott Pty Ltd (1971) 21 LGRA 324;

Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242;

Parkes Developments Pty Ltd v Cambridge Credit Corporation Ltd (1974) 33 LGRA 196;

Callinan v City of Mordialloc (1978) 43 LGRA 408;

Parramatta City Council v Hale (1982) 47 LGRA 319;

Davenport v Waverley Municipal Council (1981) 46 LGRA 97;

National Trust of Australia (New South Wales) v Minister administering the Environmental Planning and Assessment Act 1979 (1984) 53 LGRA 37.

12 It is manifest from these decisions that the problems caused for those who innocently contravene a planning provision by acting in good faith on a void council permit were well known when the Act was passed in 1993. It would also have been well known that there are many other means by which people can inadvertently contravene planning schemes. If it was intended to exempt all or any forms of inadvertent breaches from the operation of the Act, it is to be expected that the intention to do so would have been clearly spelt out. The Act makes provision for the development and use of land and sets out how breaches of planning provisions are to be handled. It draws no distinction between knowing and inadvertent breaches. The exclusion of inadvertent breaches from the operation of the Act would significantly reduce its scope and curtail its utility as a tool for controlling the development and use of land. In the circumstances, the absence of any provision in the Act excluding any form of inadvertent breach from its operation is a very clear indication that no such exclusion was intended. I am unpersuaded that s63(2)(a) should be construed in the manner put forward on behalf of Calvary. I can find nothing in the Act to warrant confining its scope to breaches other than those which arise as a consequence of a person acting in accordance with a planning permit including a void permit. I am not satisfied that the first ground of the order to show cause is made out.

13 The second ground of the order to show cause asserts that the Tribunal had no jurisdiction to declare that it was not competent for Calvary to apply for a planning permit or for the Council to grant such a permit. The Tribunal, being a creature of statute, only has the powers conferred on it by the statute. On behalf of Calvary it is submitted that the Tribunal does not have conferred upon it power to make declarations which, by necessary implication, quash a planning permit.

14 In advancing this submission, counsel for Calvary sought to categorise the relevant findings of the Tribunal as declarations which went beyond the Tribunal's acknowledged power to satisfy itself as to what the law is in relation to matters relevant to its jurisdiction. I am unable to accept this categorisation of the findings of the Tribunal. They were not in any sense declarations on matters irrelevant to or outside the Tribunal's jurisdiction. They were findings on matters of direct relevance to the jurisdiction the Tribunal was called on to exercise. These matters are commonly referred to as jurisdictional facts, as to which term the following observation was made in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 by Gleeson CJ, Gummow, Kirby and Hayne JJ (who were agreed with by Gaudron J) at par28:

"The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion."

15 There is ample authority that generally tribunals have the power to determine jurisdictional facts and there is specific authority to that effect in relation to the Tribunal in question. In Attorney-General v Estcourt and the Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 the Full Court was called upon to consider the power of the Tribunal to determine jurisdictional facts referable to its exercise of the powers conferred on it by the Act, s64. The Full Court unanimously held that the Tribunal had the power to make such determinations. Wright J, whose reasons for judgment were agreed with by Crawford J, said at 365 - 366:

"It appears to me that every body, including every tribunal which has a duty to act according to law, must, for the purpose of guiding or moulding its action, satisfy itself as to what the law is, not only for the purpose of satisfying itself that it has jurisdiction to deal with the subject matter of any dispute which it is asked to resolve, but also for the purpose of deciding substantive issues which are raised during the course of any such dispute. In this process such a body will inevitably be required to make 'findings' or 'determinations' as to the relevant law."

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

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

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

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

18 As I am quite unpersuaded that the Tribunal lacked jurisdiction to proceed as it did, I reject the second ground of the order to show cause.