Environment and Planning - Environmental Planning - Planning Schemes and Instruments - Tasmania - Other Matters - Land Use Planning and Approvals Act 1993, ss57, 58 - Whether they afford general discretion overriding planning instruments.

Robert Nettlefold Pty Ltd v Hobart City Council [2001] TASSC 120; D P & L J Krushka Pty Ltd v Peacock & Hobart City Council 92/1997; Von Witt v City of Hobart A4/1995, referred to.

Environment and Planning - Development Control - Consents, Approvals and Permits - Conditions - Power to Impose - Land Use Planning and Approvals Act 1993, s51 - Power to impose conditions not unconstrained.

Doma v City of Hobart [1983] Tas R 132; Bathurst City Council v PWC Properties (1998) 72 ALJR 170; Ex Parte Ward [1973] Tas SR 25; Mison v Randwick Municipal Council (1991) 23 NSWLR 734, referred to.

Judgment Number: [2003] TASSC 93

1 The Resource Management and Planning Appeal Tribunal ("the Tribunal") has referred the following questions to this Court in accordance with the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"), s27:

"1 Whether the proposed development of a two-storey house at 83A Letitia Street North Hobart (the proposed development) is one to which (a) section 57, or (b) section 58, of Land Use Planning and Approvals Act 1993

2 Whether all development, as opposed to use, or land falling within the City of Hobart Planning Scheme 1982 is necessarily development to which section 57 above applies.

3 If the answer to question 1 (a) above is in the affirmative, whether the imposition of a permit condition reducing the height of the proposed house to a single storey, thereby making the permitted development substantially different to the proposed development, is within the power of the planning authority and the Tribunal."

2 During the hearing of the reference, Mr Arkless advised the Court that the proposed development had been withdrawn and replaced by a new owner by a building to which no objection was taken and was, in fact, in the course of construction. That information, not provided to the Court by the Tribunal, nor by the Hobart City Council to its own counsel, renders the determination of the reference unnecessary. However, counsel for the Council states the questions are of wider import and their answer of assistance in other planning issues, so the Court will, reluctantly, deal with the issues raised.

(1) whether the operation the Land Use Planning and Approvals Act 1993 ("the LUPA Act") renders or permits development, as distinct from use, discretionary;

(2) if all development is discretionary, whether the Tribunal has power to impose conditions which make the development "substantially different" from that originally proposed.

4 On the hearing of the reference, only the Council was represented by counsel. Mr Arkless, understandably, appeared in person. The Court has not had the benefit of an articulated legal argument, contrary to the position advanced by the Council. Tribunals seeking answers by means of reference ought first consider whether the question can be fully considered by this Court by the presentation of the opposing arguments or, as here, whether events subsequent to the reference render unlikely such presentation. In this case, the Court has had the benefit of experienced counsel to whom the Court expresses its gratitude, who successfully presented both sides of the issue.

5 In order to give answer to the questions referred, it is first necessary to state how the issue arose and outline the argument raised by Mr Arkless before the Tribunal. A developer sought approval from the Council for the erection of a two storey building on land adjoining that owned by Mr Arkless. Mr Arkless objected, claiming that the structure would impinge on his amenity, especially that of light. The Council approved the proposal, subject to modifications. Mr Arkless appealed the decision to the Tribunal. During the course of the hearing before the Tribunal, counsel for Mr Arkless contended that the provision of the LUPA Act, ss57 and 58, permitted the Tribunal to modify the proposed development by way of a discretionary exercise so as to require a single storied building to be erected. The effect of the contention, if upheld, would be to sanction an overall discretion for development for all relevant planning bodies, including the Council.

6 In written submissions provided to the Tribunal, counsel for Mr Arkless put the issue in the following terms:

"It is submitted that, in respect of the City of Hobart Planning Scheme 1982, any concept of development being permitted in the sense that the Council is obliged to issue a permit, is entirely illusory.

The starting point is a consideration of the Land Use Planning and Approvals Act 1993, section 58. That section applies to 'an application for a permit in respect of a use or development for which, under the provisions of a planning scheme or special planning order, a planning authority is bound to grant a permit either unconditionally or subject to conditions or restrictions.' Both of the respondents have approached this appeal on the basis that, in the absence of any specific discretion, the applicant is entitled to the issue of a permit. In their argument, it follows that, if the specific discretion identified is not a relevant issue in the appeal, then the applicant is still entitled to the issue of a permit.

For reasons which will be detailed below, it is submitted that this approach is wrong.

Section 58 of the Act contrasts with section 57 which applies to 'a permit in respect of a use or development which under the provisions of a planning scheme or special planning order -

(a) is of a kind specified as being a use or development which a planning authority has a discretion to refuse or permit; or

(b) may not proceed as proposed by the applicant unless a planning authority waives, relaxes or modifies a requirement of the scheme or order, or otherwise in its discretion consents to the use or development proceeding.'

The question here is whether, in the absence of the identified discretion with respect to heritage being a relevant issue, the applicant is entitled to the issue of a planning permit. The answer, it is submitted, is clearly 'no'."

Having set out the particular provisions of the City of Hobart Planning Scheme ("the Planning Scheme"), counsel submitted:

"The only provision in the planning scheme which utilises the words 'bound to be approved' with a reference to section 58 of the Act is clause B.8 in Schedule B of the scheme. This provision relates to the subdivision of land and clause B.8.2 provides that a lot which complies with the provisions of the schedule is bound to be approved. There is no other equivalent provision relating to development other than subdivision.

From Principle 1 and clause 2.3.1, it is clear that there is an overall discretion with respect to any application for development, apart from subdivision. When exercising that discretion and before deciding upon one of the options available within clause 2.3.1, it is necessary to have regard to each of the matters set out in clause 2.3.2."

"The discretion to further restrict height should, it is submitted, be exercised in view of the impact of the proposed development on the amenity of adjoining properties. This arises principally out of matters of overshadowing, overlooking and audio disturbance."

7 On the hearing of this reference, counsel for the Council formulated the issue raised as:

"Whether on a proper construction of the City of Hobart Planning Scheme 1982 all development as distinct from use is discretionary."

My conclusion is that such is not the case and that the answer to the first two questions referred is "No".

8 The Planning Scheme represents a compilation of general principles grounded in policy, definition of areas, which include assessments of values and specific requirements pertaining to areas, heights and impact. General principles can never address every specific circumstance so discretionary exercise, constrained, is afforded within each component of the Planning Scheme. It would be difficult to accept that Parliament through its enactment of the LUPA Act, ss57 and 58, render a careful and complex exercise by a statutory body nugatory by providing for a statutory and general option of an overriding general discretion. The LUPA Act is a general Act. It establishes a regime which both permits appropriate bodies to responsibly control use and development, whilst providing safeguards for the rights of owners and the public interest.

9 The LUPA Act, ss57 and 58 relevantly provides:

"57 - (1) This section applies to an application for a permit in respect of a use or development which, under the provisions of a planning scheme or special planning order -

(a) is of a kind specified as being a use or development which a planning authority has a discretion to refuse or permit; or

(b) may not proceed as proposed by the applicant unless a planning authority waives, relaxes or modifies a requirement of the scheme or order, or otherwise in its discretion consents to the use or development proceeding.

(2) The planning authority may, on receipt of an application for a permit to which this section applies, refuse to grant the permit and, if it does so -

(a) it does not have to comply with subsection (3); and

(c) it must, within 7 days of refusing to grant the permit, serve on the applicant notice of its decision.

(6) Unless the planning authority has refused to grant a permit under subsection (2), it must grant or refuse to grant the permit -

(a) not earlier than the expiration of the period of 14 days, or such further period as may be allowed under subsection (5), beginning on the date on which notice of the application for a permit is given under subsection (3); and

(b) not later than the expiration of the period of 42 days from the day on which the authority received the application or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period.

58 - (1) This section applies to an application for a permit in respect of a use or development for which, under the provisions of a planning scheme or special planning order, a planning authority is bound to grant a permit either unconditionally or subject to conditions or restrictions.

(2) If an application for a permit to which this section applies meets the requirements of the planning scheme to which the application relates, a planning authority must grant the application either unconditionally or subject to conditions or restrictions not later than the expiration of the period of ...".

10 It was claimed before the Tribunal that these provisions permitted a general distinction which could replace specific discretions stated in the Planning Scheme. The appellant's argument was that:

(1) the development of a house within a residential precinct is generally discretionary within the Planning Scheme;

(2) there is, with one exception, no provision within the planning Scheme requiring the Council to approve any application for development within the meaning of the LUPA Act, s58;

(3) the Planning Scheme, cl 2.3.1, permits three options, namely grant, refusal, or approval subject to conditions;

(4) the Planning Scheme sets out various criteria relevant to its decision which include future character and zone objectives;

(5) the Planning Scheme, Principle I, confers a general discretion, whilst Principle II permits discretionary refusal of development because of considerations relevant to height;

(6) the LUPA Act, ss57 and 58, afford general discretion so as to permit development restricting it to a one storey building and, accordingly, the Council erred in failing to properly exercise a discretion and the Tribunal was permitted to so modify the proposal.

11 The Tribunal, differently constituted, has dealt with a similar contention in Noble v Hobart City Council J149/2003. In its decision given on 20 June 2003, the Tribunal stated:

"The issue of whether there is a general discretion with respect to developments for 'permitted' uses in the Planning Scheme is one which is presently the subject of a referral by the Tribunal to the Supreme Court pursuant to section 27 of the Resource Management and Planning Appeal Tribunal Act 1993, for a determination of the issue as a question of law. Because it is anticipated that the Supreme Court will be making a ruling, which will be binding upon the Tribunal, the Tribunal would normally have referred the same issue in the present case. The appellant and supporting party joined however desired a ruling to be made by the Tribunal, so the Tribunal could bring down its decision within the ninety-day period available to it; and did not agree to an extension of that time by the Minister. In those circumstances the Tribunal makes the ruling sought, but without extended reasoning due to the same issue being one which is to be determined by the Supreme Court.

In short, the Tribunal prefers the reasoning advanced for the appellant and supporting party joined. Further, to construe clause A.5.1 as providing for a development to be approved only in respect of use, would make it a meaningless provision with respect to development other than by change of use. That construction would leave development (other than as constituted by change of use) for a permitted use, unclassified under the scheme of classification set out in the Planning Scheme, as it would be neither 'P' nor 'D' nor 'X'. The forms of development which are probably the most common, that is the construction or exterior alteration of a building, demolition, and the carrying out of works, would fall outside the above classification system. That appears to the Tribunal to be a result contrary to the obvious intent of the Planning Scheme. As a further matter, if that reasoning were not accepted, the concept of 'permitted' developments under this and various other Planning schemes, one which is clearly provided for by the structure of the Land Use Planning and Approvals Act 1993, would have little place."

"No person shall carry out any development within the Planning Area without first obtaining the written approval of the Council issued in accordance with the provisions of Part 2 of the Planning Scheme."

whilst Principle 1.7.1 includes as a meaning of "development":

"(h) the making of any material change in the use of the land or any buildings or works thereon."

13 Throughout the Planning Scheme the words "development" (eg, cls 2.3.1, 2.3.2, 2.4, C.2.1, D.4.1 and E.3.2) and "use" (Principle 2, cls A3.1, A6.2), are not always used consistently but are often used in combination (cls 5.8.4, A.5.1, A.6.2, E.11.1), although their meaning should not be regarded as being inconsistent unless the contrary is clearly shown. It is clear that a distinction between "use" and "development" is maintained and the term "development" is identical to that used in the Local Government Act 1962. The LUPA Act, s3 excludes "the undertaking of development" from its definition of "use". The Planning Scheme regulates both use and development, but logically treats them separately in various provisions. In some instances, provisions or requirements are mandatory (Principle P1, Schedule A, Table A1, cls A.5, A.6, E.3.1) and in others specific discretion is afforded (Principle 3, cl F.5.1).

14 The distinction between mandatory and discretionary powers or restrictions is maintained by Principle 1:

"The use and development of land throughout the Planning Area shall be controlled by mandatory provisions of the Parts and Schedules that constitute the Planning Scheme, and maybe further or differently controlled by the exercise of the Council's discretion to refuse or permit development in accordance with the relevant Objectives and Desired Future Character relating to particular Zones and Precincts respectively."

15 The determination of a development proposal is governed by Part 2 of the Planning Scheme which relevantly provides:

"2.3.1 Subject to Section 2.3.2 (below), after consideration of the proposed development the Council shall:

(b) approve the development subject to conditions; or,

2.3.2 Before granting or refusing approval for any development or imposing conditions in respect of any development the Council shall have regard to:

(b) the Desired Future Character of the Precinct in which the development is situated; and

(c) the provisions of any relevant Schedule and/or Code;"

16 Permitted height, which was central to the appellant's concerns is controlled by cl C.2.1:

"Having regard to the Planning Scheme overall, in particular Principle II, Council has a discretion to refuse or permit a proposed development that exceeds the permitted height for the relevant Precinct shown in Table C.1 below.

All other Precincts(a), Recreation and Hills Face Zones 4.8"

17 The operation of the Planning Scheme is one of development for an identified use. If the use is permitted, then the development is to be assessed in accordance with specific standards or values (eg, heritage, F5 and D3.4.3), whilst variations must nevertheless conform with the interest of identified planning principles and objectives (cl D.4.1). The regulation of development is phased in that:

(1) if the proposal satisfies mandatory provisions, it is a permitted development;

(2) if it offends a mandatory provisions (eg, height), then it is prohibited unless there exists an identified discretionary provision;

(3) even if it is discretionary as a form of development, it might nevertheless be rejected because of a general provision (eg, heritage).

18 The Planning Scheme itself provides for the grant or refusal of a development or the imposition of conditions according to specific discretionary exercises at each stage referable to the identified requirement (D P & L J Krushka Pty Ltd v Peacock 92/1997; Von Witt v City of Hobart A4/1995_; Robt Nettlefold Pty Ltd v Hobart City Council_ [2001] TASSC 120). Some proposals might require a series of discretionary exercises such as height, location, site location, heritage, and the like. Each discretion conferred by the Planning Scheme can only be exercised for the purpose for which it is conferred (FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; Samad v District Court of NSW (2002) 76 ALJR 871; Royal Botanic Gardens v South Sydney City Council [2002] HCA 5; (2002) 76 ALJR 436).

19 The LUPA Act, ss57 and 58, does not itself, determine what is to be permitted discretionary or prohibited. Different planning bodies might have different standards or requirements because of geography, population density, environmental factors, and the like. The LUPA Act does not provide for an all encompassing discretionary exercise separate to those provided for in the various planning implements, The LUPA Act, ss57 and 58, governs process and a time frame for procedures and outcome. The sections afford no separate power. The power to impose conditions as afforded by the LUPA Act, s51, is not afforded by the operation of ss57 and 58.

20 The answer to questions 1 and 2 of the reference is "No".

21 It is not necessary to answer question 3 of the reference. However, in deference to the request of counsel, the Court will attempt to state some general principles which might be of future assistance. The LUPA Act, s51, relevantly provides:

"51 - (1) A person must not commence any use or development which, under the provisions of a planning scheme or special planning order, requires a permit unless the planning authority which administers the scheme or order has granted a permit in respect of that use or development and the permit is in effect.

(1A) A person may apply to a planning authority which administers a planning scheme or special planning order for the granting of a permit for a use or development which under that scheme or order requires a permit to be granted in respect of that use or development.

(c) a combination of one or more uses and one or more developments -

and under a planning scheme or special planning order any of those uses or developments requires a permit to be granted in respect of them, a person, in one application, may apply to the planning authority for a permit with respect to that undertaking.

(2) In determining an application for a permit, a planning authority -

(a) must seek to further the objectives set out in Schedule 1; and

(b) must take into consideration such of the prescribed matters as are relevant to the use or development the subject of the application; and

(c) must take into consideration the matters set out in representations relating to the application that were made during the period referred to in section 57(5)

(3) The decision of a planning authority on an application referred to in subsection (1A) or (1B) is to be made by reference -

(a) to the provisions of the planning scheme or special planning order as in force at the date of that decision; or

(b) if the planning authority has been required under section 28(1)(a)(i) to modify a draft planning scheme and that draft planning scheme has not been approved by the Commission at the date of that decision, to the provisions of the draft planning scheme modified as required; or

(c) if the planning authority has been required under section 41(a) to modify, or alter to a substantial degree, a draft amendment to a planning scheme and that draft amendment has not become operative at the date of that decision, to the provisions of the planning scheme as they would be if the draft amendment modified, or altered to a substantial degree, as required had become operative.

(3A) A permit to which section 57 applies may be subject to such conditions or restrictions as the planning authority may impose.

(4) A permit to which section 58 applies may be granted subject to such conditions or restrictions as the planning authority may impose with respect to any matter specified in the relevant planning scheme or special planning order."

22 Section 51(3A), whilst permitting the imposition of conditions, does not elevate the power to that unconstrained by the relevant planning instrument. The power to impose a condition does not permit its use to allow for an altered purpose or create a new or different use. Conditions must relate to application and conform with a planning purpose (Doma v City of Hobart [1983] Tas R 132; Bathurst City Council v PWC Properties (1998) 72 ALJR 170). The condition cannot be used as a vehicle for permitting an otherwise unlawful purpose (Ex Parte Ward [1973] Tas SR 25), although a condition properly imposed might effectively constitute prohibition (Assurance Television Pty Ltd v ABC [1976] VicRp 86; [1976] VR 793). Significant differences (Mison v Randwick Municipal Council (1991) 23 NSWLR 734) achieved through a condition would deprive a developer, objector or planning body of the right of procedural fairness. Here there is insufficient evidence to determine whether the condition that the proposed development be reduced to one storey constituted a substantial difference since the height differential is unknown and any determination would involve assessment of the character of the precinct, and the like.

Q1 "Whether the proposed development of a two-storey house at 83A Letitia Street North Hobart (the proposed development) is one to which (a) section 57, or (b) section 58, of Land Use Planning and Approvals Act 1993."

Q2 "Whether all development, as opposed to use, or land falling within the City of Hobart Planning Scheme 1982 is necessarily development to which section 57 above applies."

Q3 "If the answer to question 1(a) above is in the affirmative, whether the imposition of a permit condition reducing the height of the proposed house to a single storey, thereby making the permitted development substantially different to the proposed development, is within the power of the planning authority and the Tribunal."