APPEALED FROM: A Moon v West Tamar Council [2015] TASRMPAT 6

Environment and Planning - Courts and tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Power to compel council to enter into agreement under Pt 5 of the Land Use Planning and Approvals Act 1993 (Tas).

Land Use Planning and Approvals Act 1993 (Tas), s 58A.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s 23.

Judgment Number: [2015] TASSC 32

1. In February 2014 a landowner named Anne Moon made an application to the appellant, West Tamar Council, to subdivide a parcel of land at Beauty Point into two lots. The council refused her application in April 2014. Ms Moon appealed to the respondent, the Resource Management and Planning Appeal Tribunal. For reasons which I need not explain, the tribunal has made a series of three decisions in relation to that appeal. By its third decision, the tribunal made an order directing the council "to grant a permit on terms which include the requirement that the landowner and the Council enter into a Part 5 Agreement dealing with the matters set out at paragraph 24 of the Tribunal's 'primary' decision": A Moon v West Tamar Council [2015] TASRMPAT 6. The expression "Part 5 Agreement" refers to Pt 5 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act").
2. The council does not wish to enter into a Pt 5 agreement with the landowner. It has appealed from the third decision of the tribunal. It contends that the tribunal does not have the power to require a planning authority to enter into a Pt 5 agreement. The council is a planning authority: LUPA Act, s 3. The landowner, not the tribunal, should have been named as the respondent to this appeal, but nothing turns on that. The landowner and the tribunal both chose not to participate in the hearing of this appeal, and to abide by any decision that the Court might make. The Attorney-General did not intervene. I therefore received submissions from counsel for the appellant alone, with none from any contradictor.
3. Part 5 of the LUPA Act provides for councils, landowners and other persons to enter into agreements relating to the use and development of land, which may include covenants that run with the land. The principal provisions of Pt 5 may be summarised as follows:
   • A planning authority (ie a council) may enter into an agreement with an owner of land in the area covered by a planning scheme or a special planning order: s 71(1).
   • A planning authority may do that jointly with any other person: s 71(2).
   • Such an agreement may provide for the prohibition, restriction or regulation of use or development; the conditions subject to which a use or development may be undertaken; and certain other matters: s 72(2).
   • Such an agreement is binding on the parties to it from the day on which it is executed: s 71(5).
   • Such an agreement may contain provisions as to when its provisions come into operation, and when it ends: s 74(1), (2).
   • Such an agreement may be registered by the Recorder of Titles in accordance with the Land Titles Act 1980: s 78.
   • After such registration, the burden of any covenant in the agreement runs with the land, and may be enforced by the parties and their successors in title in the same way as a covenant for the benefit of adjacent Crown land may be enforced: s 79.
4. There is nothing in Pt 5 to suggest that a planning authority, a landowner, or any other party can be compelled to enter into a Pt 5 agreement. Agreements, by their very nature, are ordinarily entered into voluntarily or not at all.
5. However s 58A of the LUPA Act, which was inserted into Pt 4 by an amendment in 1995, permits a planning authority, when granting consent for a use or development, to impose a condition requiring that a Pt 5 agreement be entered into. That section provides as follows:

"(1) Without limiting section 51(3A) and despite section 51(4), a permit granted by a planning authority under section 30T or section 57 or 58 may include a condition that an agreement is required to be entered into in respect of a use or development.

(2) If a planning authority grants a permit which includes a condition that an agreement is required to be entered into in respect of a use or development, the planning authority must specify in the condition the matters, and the requirements with respect to those matters, to be included in the agreement.

(3) If a person is granted a permit which includes a condition under subsection (1) and that person is not the owner of the land in respect of which the agreement to be entered into relates, the planning authority must, within 7 days of granting the permit, serve notice of its decision on the owner."

1. In s 3(1) of the LUPA Act, "agreement" is defined to mean "an agreement entered into under Part 5".
2. Planning schemes often empower councils to impose conditions when they grant permits pursuant to the provision of the LUPA Act. Section 58A adds to the range of conditions that may be imposed by empowering councils to require landowners or developers to enter into Pt 5 agreements. If a landowner obtains a permit under s 57 or s 58 that includes a condition requiring a Pt 5 agreement to be entered into, the landowner has a choice. The landowner may either enter into the "required" Pt 5 agreement or, alternatively, not proceed with the use or development for which a conditional permit has been granted. Thus, even though s 58A is worded as if a landowner can be required to enter into a Pt 5 agreement, a landowner can never be compelled to enter into one. And there is nothing in the LUPA Act that says that a planning authority can ever be compelled to enter into one.
3. Appeals to the tribunal are governed by the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"). Section 23(1) of that Act provides that, for the purpose of determining an appeal, the tribunal "may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal". Thus, the tribunal stands in the shoes of the original decision-maker. In the present context, the tribunal may exercise all of the powers that are conferred by the LUPA Act on a council in its capacity as a planning authority.
4. In my view s 23(1) should be given a wide interpretation, to such an extent that the tribunal should be taken to have the power conferred on a council to bring into existence a Pt 5 agreement to which the council is a party. Under s 23(1), the tribunal may exercise the power that is conferred by s 58A of the LUPA Act on a council. That must mean that it may require a landowner or developer to enter into a Pt 5 agreement, but with whom? It would be inappropriate for such an agreement to be entered into with the tribunal since the tribunal is not a body corporate, and since its role is that of a decision-maker, not a local government authority.
5. An interpretation of s 23(1) that promotes its purpose or object must be preferred to one that does not: Acts Interpretation Act 1931, s 8A. The objectives of the State's resource management and planning appeal system are set out in schedules to both the LUPA Act and the RMPAT Act. The first clause in Sch 1 to each of those Acts commences as follows:

"1 The objectives of the resource management and planning system of Tasmania are -

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; ...".

1. An interpretation of s 23(1) that gives the tribunal flexibility in the exercise of statutory power is one that promotes those statutory objectives, whereas an interpretation that places constraints on the tribunal's exercise of statutory powers does not promote them.
2. Although agreements ordinarily are voluntary because of the very nature of an agreement, and although there is nothing in the legislation that expressly states that the tribunal has the power to compel a council to enter into a Pt 5 agreement against its wishes, I think the relevant provisions should be interpreted as conferring such a power. It is clear that the tribunal can order a council to issue a planning permit against its wishes, even though a council is a democratically elected local government body with the primary responsibilities of a planning authority. If the tribunal can compel a council to act against its wishes in relation to the issue of a permit, it is by no means surprising that the tribunal should also have the power to compel a council to act against its wishes by entering into a Pt 5 agreement. Because of the role of a council as a planning authority, with responsibility for the enforcement of planning controls, including controls imposed by Pt 5 agreements, it is appropriate that a council, not the tribunal, should be a party to a Pt 5 agreement in a situation like the present one.
3. Section 23(2)(c)(i) of the RMPAT Act empowers the tribunal, when determining an appeal, to set aside a council's decision and make "a decision in substitution for the decision appealed against". There is no reason why such a substituted decision should not be a decision that the council must both issue a permit and enter into a Pt 5 agreement. That is the course that the tribunal took in its third decision in this case. It had the power to make such a decision. This appeal must therefore fail.