R v Resource Planning and Development Commission; Ex parte Dorney

R v Resource Planning and Development Commission; Ex parte Dorney - [2003] TASSC 69 - TASSC 2003 case summary — Zoe

[114]

16 Mr McElwaine based his submission on cl L2, which confers on the Council "a discretion to refuse or permit a use or development to which this Schedule applies". Under cl L1, the Schedule applies (inter alia) to all land contained within the Community Bushland Zone where proposed use or development is to be located within an existing bushland habitat. Mr McElwaine argued that it followed that all uses or developments in existing bushland habitats in the Community Bushland Zone were uses or developments to which the Schedule applies for the purposes of cl L2. He submitted that there was an inconsistency between the provisions of Schedule A, whereby all uses other than "passive recreation" were designated as prohibited in the Community Bushland Zone, and Schedule L, which he submitted should be read as providing for all uses in that zone to be discretionary. He advanced a number of arguments as to why Schedule L, thus interpreted, should prevail over Schedule A. He made a submission to the effect that any ambiguity in a planning scheme as to the restriction of landowners' common law rights should be resolved in favour of the landowners. He submitted that Schedule L was a specific provision, that Schedule A was a general provision, and that the specific provisions of Schedule L should prevail over Schedule A. Generalia specialibus non derogant. Finally, he relied on the LUPA Act, s57, which relates to applications for discretionary permits. By virtue of s57(1)(a), that section applies to an application for a permit in respect of a use or development which, under the provisions of a planning scheme, "is of a kind specified as being a use or development which a planning authority has a discretion to refuse or permit". He submitted that, when a particular kind of use or development is specified in a planning scheme as one which the planning authority has a discretion to refuse or permit, the section still applies even if the planning scheme simultaneously specifies that such a use or development is one that the planning authority has no discretion to permit. That is to say, he relied on the literal meaning of the words of s57(1)(a).

[135]

29 Mr Spence submitted that the question whether the changes to the draft amendment involved a modification, an alteration to a substantial degree, or a transformation, was a question of law, and not a question of fact for the Commission or its delegates, relying on Addicoat v Fox (No 2) (supra), and on Marock Pty Ltd v Billjoy Pty Ltd [1981] VicRp 41; [1981] VR 413. In Addicoat v Fox (No 2), Brooking J had to decide whether an application for a permit should be interpreted as an application for permission to construct a new shopping complex, or as an application merely for permission to use the subject land as a shopping complex. His Honour held that the question as to the proper interpretation of the permit application was a pure question of law. At 358 he referred to Halsbury, 4 ed, vol 12, par1462 - a paragraph concerned with the proposition that the interpretation of a written document is generally speaking a matter of law for the court. A question arose as to whether, on an application for a permit merely to use the land for a particular purpose, a permit could be granted with conditions which authorised the construction of a new shopping complex. As a result of that issue arising, Brooking J adverted to the distinction between a modification and a transformation. However that case is not authority for the proposition that the distinction between a modification and a transformation is a pure matter of law. It is authority for the proposition that the interpretation of an application for a planning permit involves a pure question of law. Marock Pty Ltd v Billjoy Pty Ltd also concerned a question as to the interpretation of an application for a planning permit, namely whether the application was for a permit to use and develop certain land, or for a permit merely to use that land. Tadgell J held that that question was a question of law, following Addicoat v Fox (No 2). Marock had nothing to do with the distinction between a modification and a transformation. Thus neither of the cases relied on by Mr Spence is authority for the proposition that such a distinction involves a pure question of law.

[185]

40 The final document contained some very significant changes from the draft amendment as exhibited. It provided for no uses other than "passive recreation" to be permitted or discretionary in some 465.6 ha of land, whereas the draft amendment as exhibited provided for certain domestic uses to be discretionary in some 254.3 ha in the Landscape and Skyline Conservation Zone, and for a wide range of commercial uses to be discretionary in some 204.3 ha in the Bushland Conservation and Recreation Zone. Members of the public were likely not only to have views as to the appropriateness of such changes, but also as to the related issue of whether compensation pursuant to the LUPA Act, s66, should be payable in consequence of all uses other than passive recreation being designated as prohibited in the Community Bushland Zone. That is very significant because the critical aspect of the legislative distinction is that only an alteration to a substantial degree requires repetition of the process of public exhibition, advertising, representations, a council report thereon, and a hearing. It is true that the draft amendment as exhibited did not provide for any uses other than "passive recreation" to be permitted as of right in the proposed Landscape and Skyline Conservation Zone or the Bushland Conservation and Recreation Zone, as the Recreation Zone was intended to be renamed. The changes to the draft amendment would have been more substantial if they involved the designation of use groups being changed from "p" (permitted) to "X" (prohibited). Despite that, designating all use groups except "passive recreation" as prohibited in a large zone, and making "passive recreation" uses discretionary in the areas covered by Schedule L, in my view involved a substantial degree of change from what was proposed in the draft amendment as exhibited. The final document allowed practically no use or development in relation to a large area of suburban land. An alteration of a draft amendment to prohibit almost every use or development in relation to an area of land is almost as substantial an alteration as one can get. It follows, in my view, that it was not reasonably open to the delegates to categorise the changes that they required to the draft amendment as exhibited as mere modifications, as distinct from alterations to a substantial degree. It follows that they erred in law by categorising those changes as modifications, and that their decision of 29 November 2001 is able to be quashed pursuant to the Rules of the Supreme Court, r627(2)(a).

[215]

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396; Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 109-110; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 496, 500; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at p 456; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, at p 680. In Tanos (1958) 98 CLR, at p 396, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, at pp 344-345, 347, 349. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, at p 584, Mason J said that the law in relation to administrative decisions: 'has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' In Haoucher (1990) 169 CLR at p 653, Deane J said that the law seemed to him 'to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making'."

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Judgment (291 paragraphs)

R v Resource Planning and Development Commission; Ex parte Dorney (No 2) [2003] TASSC 69 (11 August 2003)

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Cases Cited (23)