Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Amendments to planning schemes - Validity - Uncertainty - Powers and functions conferred on body independent of council.

Land Use Planning and Approvals Act 1993 (Tas), s20.

King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184; Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210, referred to.

Conroy v Shire of Springvale and Noble Park [1959] VR 737, distinguished.

Attorney-General: Director of Public Prosecutions

Judgment Number: [2011] TASSC 15

WEST TAMAR COUNCIL v TASMANIAN PLANNING COMMISSION

1 This is an application by the West Tamar Council ("the council") for judicial review of a decision of the Tasmanian Planning Commission ("the commission") to amend the West Tamar Planning Scheme 2006. The council was unhappy with a clause in the planning scheme that related to Aboriginal cultural heritage. It initiated an amendment to the planning scheme in the hope of having that clause removed. The commission decided that the clause should be replaced rather than removed. Under the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), ss41(ab) and 42, the commission modified the council's draft amendment, and approved the draft amendment as modified. The amendment came into operation seven days after the commission gave its approval, pursuant to s42(4). The council contends that the commission's decision involved errors of law, and that the amendment should be quashed.

2 The solicitor for the commission has filed a notice of submission pursuant to the Supreme Court Rules 2000, r777G. The commission was therefore not represented at the hearing of this application. The Attorney-General intervened pursuant to the Judicial Review Act 2000, s39, and was represented by counsel at the hearing. A member of the Aboriginal community, Mr Clyde Mansell, appeared for himself at the hearing and made submissions as to the importance of protecting Aboriginal cultural heritage.

3 The effect of the amendment was to alter cl S8.7 of the planning scheme so that it now reads as follows:

Objective

To ensure aboriginal cultural heritage is protected.

P1.1 That within 14 days of receiving notification of the proposed development,

a) no advice is received from AHT indicating the likely presence of an aboriginal relic on the site, or

b) advice is received from AHT that the site is considered unlikely to contain an aboriginal relic;

P1.2 A site survey by a person appropriately qualified to assess Tasmanian aboriginal cultural heritage, demonstrates that either

a) the site is unlikely to contain aboriginal relics, or

b) the development may proceed, subject to conditions designed to protect relics from disturbance

A1 The applicant possesses a permit granted by the Minister pursuant to the Aboriginal Relics Act 1975, allowing development of a place of aboriginal cultural heritage.

4 It is clear from the structure of the planning scheme that cls P1.1 and P1.2 in the column headed "Performance Criteria" together constitute a single "performance criterion". That criterion is satisfied if either P1.1(a) or P1.1(b) or P1.2(a) or P1.2(b) is satisfied. The wording of the planning scheme, which is convoluted and full of gobbledygook, results in any development in the area covered by the planning scheme being prohibited unless one of those provisions, or "acceptable solution" A1 in cl S8.7, is satisfied. It is not necessary to explain the provisions of the scheme that produce that result.

5 The council's arguments as to suggested errors of law all relate to the wording of the performance criterion in cl S8.7 as amended. The council has relied on four grounds of review.

"(a) the Respondent erred in law in its decision to draft the performance criteria to clause S8.7 of the West Tamar Planning Scheme 2006 in that the clause purports to sub-delegate the application or non application of the performance criteria to a person or persons unknown, which person or persons is not subject to the Land Use Planning & Approvals Act 1993".

7 This ground relates to "AHT", which is referred to in P1.1(a) and (b). The planning scheme, as amended, does not contain any definition of "AHT". At the hearing, it was common ground that those initials stand for "Aboriginal Heritage Tasmania"; that there is no legal entity of that name; and that there is a part of a State government department - the Department of Primary Industries, Parks, Water and Environment - known by that name.

8 Counsel for the council submitted that the amendment purports to subdelegate the council's decision-making process to a body which is not a legal person, and which has no authority under the LUPA Act to make a decision or to provide advice of the type contemplated by cl P1.1.

9 This ground of review is misconceived. Parliament has given the commission certain statutory powers, including powers to make and amend planning schemes: the LUPA Act, ss29 and 42. Planning schemes are legislative instruments. Parliament is the repository of legislative power in this State. When the commission makes or amends a planning scheme, it exercises delegated legislative power. If the commission purported to delegate any of its statutory legislative powers to Aboriginal Heritage Tasmania or anybody else, that would amount to a subdelegation. As a general rule, a person or body to whom power has been delegated is not in turn permitted to further delegate that power or any part of it. Delegatus non potest delegare. See Pearce and Argument, Delegated Legislation in Australia, 3rd ed, ch 23. Of course, subdelegation can be authorised by statute. The commission is given power to delegate its functions and powers, subject to certain restrictions, by the Tasmanian Planning Commission Act 1997, s8.

10 However cl S8.7 of the planning scheme does not contain any provision whereby the commission delegated, or purported to delegate, any of its functions or powers. It therefore contains nothing that amounts to a subdelegation or purported subdelegation. The council's contentions in relation to Aboriginal Heritage Tasmania are all contentions that cl P1.1 in cl S8.7 gave Aboriginal Heritage Tasmania powers and functions that it was not empowered by the LUPA Act or any other legislation to confer, not that the commission impermissibly purported to subdelegate any of its own powers and functions.

12 This ground of appeal asserts that the commission:

"(d) erred in law in the drafting of the performance criteria to clause S8.7 of the planning scheme in that its operation is uncertain, is dependent upon the action or inaction of a third party and as such is bad for uncertainty or alternatively is incapable of operation in accordance with the provisions of the Land Use Planning & Approvals Act 1993."

13 Counsel for the council submitted that cl S8.7 does not state who is to give notification of a proposed development to "AHT"; when the 14 days referred to in P1.1 commence and end; what sort of notification is required; or what "AHT" is. He could also have added that it does not say who has to receive or not receive advice from "AHT" for cls P1.1(a) or P1.1(b) to be satisfied.

14 There are situations in which a piece of delegated legislation will be invalid because of uncertainty. The relevant principles were made clear in two judgments of Dixon J (as he then was) in cases concerning the National Security (Prices) Regulations: King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 194 - 200; Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210 at 226 - 233. In each case, the High Court was required to consider the validity or invalidity of a prices regulation order made pursuant to a regulation. In the second of those cases, Dixon J said the following at 227 - 228:

"As will appear from King Gee Clothing Co Pty Ltd v The Commonwealth (Ante, 184) I do not take the view that doubts about the construction of an instrument made under reg 23 can affect its validity. The interpretation of all written documents is liable to be attended with difficulty, and it is not my opinion that doubts and misgivings as to what the instrument intends, however heavily they may weigh upon a court of construction, authorize the conclusion that an order made under reg 23 is ultra vires or otherwise void. If in some respects its meaning is unascertainable, then, no doubt, it fails to that extent to prescribe effectively rights or liabilities, but that is because no particular act or thing can be brought within the scope of what is expressed unintelligibly. But to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise, as the by-law-making powers of certain corporations have been understood to do, the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document. What does take an order outside the power conferred by reg 23 is, not uncertainty as to what it means, but the adoption by the order of a criterion or standard of price that is uncertain in the result that its application produces. The method of finding the maximum price must not involve discretionary elements. The order must either fix the price, or lay down a method of finding it which will produce the same result whoever applies it, so long as he uses it correctly."

15 Thus, ambiguity alone will not result in an instrument being invalid. It will only be invalid if it is not a true exercise of the relevant statutory power. It will not be a valid exercise of the relevant statutory power if the instrument is, in some critical respect, unintelligible or meaningless. In order to rule upon ground (d), it is therefore necessary to apply the appropriate rules of construction to the impugned provisions in cl S8.7.

16 Clause 3.1.1 of the planning scheme provides that the planning scheme "is to be interpreted in accordance with the Acts Interpretation Act 1931". By virtue of s8A of that Act, an interpretation that promotes the purpose or object of the planning scheme must therefore be preferred to an interpretation that does not promote its purpose or object. It is clear that the purpose of cl S8.7 is to protect Aboriginal cultural heritage by giving Aboriginal Heritage Tasmania an opportunity to comment on development applications made to the council, except for those where cl P1.2 or cl A1 is satisfied.

17 Clause P1.1 uses the words, "within 14 days of receiving notification of the proposed development" without expressly referring to anyone in particular receiving such notification. However it goes on to talk about a situation where "no advice is received from AHT" and a situation where "advice is received from AHT that the site is considered unlikely to contain an aboriginal relic". I think those provisions make it quite clear that the clause is concerned with "AHT", and not anybody else, receiving notification. That is to say, I think it is abundantly clear that the opening words of P1.1 mean, "That within 14 days of Aboriginal Heritage Tasmania receiving notification ...".

18 The clause places no limit on the way in which notification may be given. It must follow that it can be given either orally or in writing. It could be given by facsimile or by email. And it could be given to any officer of Aboriginal Heritage Tasmania. Whenever the council needs to determine whether Aboriginal Heritage Tasmania has received notification of a proposed development, it will be sufficient if the council determines that one or more of those officers has received such notification in the course of his or her duties. The council would not necessarily need to determine the identity of any officer or officers receiving the notification, so long as it was satisfied that one or more of them had received it.

19 The Acts Interpretation Act does not contain any provision relating to the giving of "notification". Section 29AB contains provisions relating to the service of notices or other documents, but cl P1.1 is not confined to the receiving of notification in a written form. The Macquarie Dictionary does not contain a definition of "notification", but defines "notify" as follows:

"1. to inform or warn somebody officially about somebody or something 2. to announce or report something officially, or make something officially known".

It follows that "receiving notification of the proposed development" in cl P1.1 must mean "receiving information officially about the proposed development".

20 I think the words "notification of the proposed development" imply that notification will be sufficient if it contains particulars of all the essential features of the proposed development. The notification will therefore be sufficient if it identifies the proposed development site, and the nature of the proposed development.

21 No express restriction is imposed as to who may give the notification. Clause 4.5.1 of the planning scheme provides, "Sufficient documentation must be provided with an application to demonstrate compliance with all relevant planning scheme standards ...". Clause S8.7 constitutes a "standard" for the purposes of the planning scheme. It follows that the proponent of a development bears the onus of providing documentary evidence to the council to demonstrate that cl S8.7 has been satisfied in one of the various possible ways. Ordinarily it would be the proponent that would notify anyone who needed to be notified of a proposal but, since cl P1.1 does not confine itself to notification given by or on behalf of a proponent, it seems to me that it must also apply to notification received from the council, or even from someone opposed to a proposed development.

22 When a proponent wishes to rely on cl P1.1, cl 4.5.1 requires that proponent to provide documentation to demonstrate compliance with either P1.1(a) or P1.1(b). If P1.1(a) is relied on, the proponent must provide a document demonstrating that no advice has been received by Aboriginal Heritage Tasmania indicating the likely presence of an Aboriginal relic on the relevant site. The council could reasonably regard a statement or letter to that effect as sufficient. If the proponent asserts that no such advice has been received, but the council happens to have received advice indicating the likely presence of an Aboriginal relic on the site, then the documentation provided by the proponent will be insufficient. Clause P1.1 does not apply only in relation to advice received or not received by a proponent. Since it relates to applications to the council, any advice received by the proponent or the council must fall within the scope of cl P1.1. However I think it is implicit that advice from Aboriginal Heritage Tasmania to anyone other than the proponent, the council, and their agents is irrelevant to the satisfaction or non-satisfaction of P1.1.

23 It is most unfortunate that cl S8.7 did not specify who was to give notification, how it was to be given, what it was to contain, and who was to be the recipient of any relevant advice. However, for the reasons stated, I think the intended effect of the clause can be discerned. It follows that its meaning and effect are not so uncertain that it is void. Ground (d) must fail.

Grounds (b) and (c) - Body independent of council

24 These two grounds of review raise the same points. They assert that the commission:

"(b) erred in law in that in drafting the performance criteria to clause S8.7 of the planning scheme it has made the operation of the performance criteria dependant [sic] upon the forming of an opinion and the communication of advice, or the failure to communicate advice, by a person or persons unknown when that person is not subject to the provisions of the Land Use Planning & Approvals Act 1993, is not a 'planning authority' as defined in the Land Use Planning & Approvals Act 1993 and is not bound to either assess or consider an application of the type referred or to give any advice as contemplated to the planning authority;

(c) erred in law in that in drafting the performance criteria to clause S8.7 of the planning scheme, its application is dependent upon an assessment and/or the forming of an opinion and/or the giving of advice or the failure to give advice as a pre-requisite [sic] to the application of the performance criteria by a person or persons unknown who are not obliged pursuant to the provisions of the Land Use Planning & Approvals Act 1993 to act as contemplated by the performance criteria".

25 These grounds both involve a contention that Aboriginal Heritage Tasmania constitutes "a person or persons unknown". I reject that contention. From what counsel for the council told me at the hearing of this application, I take it as conceded that Aboriginal Heritage Tasmania is an identifiable group of officers of a particular department. These grounds are based on the fact that the council is a "planning authority" for the purposes of the LUPA Act, and as such has the power to make planning decisions under the provisions of that Act.

26 Grounds (b) and (c) involve contentions that cl P1.1 is ultra vires, ie beyond the commission's powers under the LUPA Act. The scope of the commission's powers as to the contents of planning schemes is governed by s20 of that Act. Under s20(1)(c), a planning scheme for an area "may make any provision which relates to the use, development, protection or conservation of any land in the area". Under s20(2)(b), a planning scheme may "regulate or prohibit the use or development of any land". Under s5, it is the obligation of the commission to perform its functions and exercise its powers under the LUPA Act in such a manner as to further the objectives set out in Sch1 to that Act. Clause 1(e) of Pt1 of that schedule provides that one of the objectives of the resource management and planning system of Tasmania is "to promote the sharing of responsibility for resource management and planning between the different spheres of Government ... in the State". Aboriginal Heritage Tasmania is of course part of one of the spheres of Government in the State. Under par(g) of Pt2 of Sch1, one of the objectives of the planning process established by the LUPA Act is "to conserve those ... areas or other places which are of ... special cultural value".

27 The council's principal argument in relation to grounds (b) and (c) is based on the decision of the Full Court of the Supreme Court of Victoria in Conroy v Shire of Springvale and Noble Park [1959] VR 737. That case concerned a council's bylaw which provided that "no person shall keep more than three dogs on any property ... except with the written permission of the Council", and also provided that an application for that permission in respect of "greyhounds, whippets or other types of racing dogs ... must ... be accompanied by the approval in writing of the Dog Racing Control Board of Victoria". All members of the Full Court held that the latter provision was ultra vires. Herring CJ and Gavan Duffy J held that that provision was not severable from the rest of the bylaw, but Sholl J dissented as to that point. Herring CJ said less about the point in question than the other members of the court. At 748 his Honour said:

"All I need say, I think, is that there was clearly no warrant for making it a condition precedent in some cases that the approval of the Dog Racing Control Board of Victoria should be obtained before a permit could be obtained."

"The by-law can be made only for the general purpose of the Shire.

Whether this was enacted for such a purpose was for the council to consider and determine. The Dog Racing Control Board of Victoria had not any duty to the Shire or necessarily any interest in its wellbeing. In fact its interests might possibly be adverse, and to surrender to it part of the determination of the council whether a person should be allowed to keep more than two or three dogs, as the case may be, appears to be not only unreasonable but contrary to the requirements of the by-law-making authority.

Dixon J (as he then was) said in Shire of Swan Hill v Bradbury ((1937) [1937] HCA 15; 56 CLR 746): 'It would be difficult to discover any justification for excluding from the grounds upon which approval may be given or withheld, as foreign to the discretion intended to be given, any purpose or policy which might honestly be thought to contribute to the better development of the locality, to the safety, health, comfort or convenience of the inhabitants, or to the efficient administration of the municipality.' I find it hard to conclude that to give a power to the council to grant or refuse permission to keep more than two or three dogs, coupled with a power in an outside body, whose interests might be irreconcilable with those of the municipality, could be justified, keeping in mind that statement."

"If for no other reason, it [the bylaw] is ultra vires because it purports to make absolutely essential, as a pre-requisite even to the consideration of the application, an approval by a body (a) which is under no obligation even to consider or deal with a request for such approval, and (b) which, if it does consider it, is not bound to have regard to any matter in the least degree relevant to the good rule and government of the municipality in general, or to the regulation of the keeping of dogs within it, in particular. It imposes a condition which an applicant may, for reasons completely irrelevant to his application, be forever unable to fulfil. No legal proceeding would lie against the Board if it declined to have anything to do with all applications, or any particular application, for its approval. The requirement of the Board's approval is not a by-law, or part of a by-law, with respect to the subject matter of regulating the keeping of dogs in the Shire, either by limitation of their numbers or otherwise."

30 The bylaw considered in that case was so worded that, even when the Dog Racing Control Board of Victoria gave permission in respect of a number of racing dogs, the final decision was still made by the council. None of the judges referred to that fact, but that probably explains why their judgments did not refer to subdelegation. All of their judgments related to the scope of the delegated legislative power - the power to make bylaws.

31 In Conroy, the approval of the board was an essential prerequisite to the granting of council permission for the keeping of more than three greyhounds, whippets, or other racing dogs. In this case, it is beyond the power of Aboriginal Heritage Tasmania to prevent any development. Clause S8.7 does not make its approval a prerequisite. It makes satisfaction of either performance criterion P1 or acceptable solution A1 a prerequisite to a development. Performance criterion P1 can be satisfied by either 14 days' silence on the part of Aboriginal Heritage Tasmania, or by it providing advice that satisfies cl P1.1(b), or by the obtaining of a site survey that satisfies sub-criterion P1.2.

32 A somewhat different situation was considered in two English cases relating to the censorship of movies under the Cinematograph Act 1909 (UK). That Act conferred on county councils the power to grant licences for the use of premises, and the power to impose terms, conditions and restrictions when doing so. During the 1920s, the London County Council began to grant licences containing conditions requiring licensees not to exhibit any film that had not been passed for universal exhibition by the British Board of Film Censors without the consent of the council. In Mills v London County Council [1925] 1 KB 213, it was held by Lord Hewart CJ, Shearman and Salter JJ that such a licence condition was valid. The Court of Appeal reached the same conclusion in relation to a similar licence condition in R v Greater London Council; ex parte Blackburn [1976] 1 WLR 550. County councils were not allowed to delegate their powers to the British Board of Film Censors: Ellis v Dubowski [1921] 3 KB 621. However a condition giving the county council itself the final say was held to be valid.

33 The British Board of Film Censors was an unincorporated body. However that was not seen as an impediment to the validity of the licence condition in either Mills v London County Council or R v Greater London Council; ex parte Blackburn. In the latter case Lord Denning MR said, at 554, that county councils "can treat the board as an advisory body whose views they can accept or reject; provided that the final decision - aye or nay - rests with the county council." I think it must follow that the fact that Aboriginal Heritage Tasmania is not a legal entity does not prevent cl S8.7 or performance criterion P1.1 from being valid.

34 If Aboriginal Heritage Tasmania receives notification of a proposed development and, within 14 days thereafter, either (a) causes no advice to be received indicating the likely presence of an Aboriginal relic on the site, or (b) causes advice to be received that the site is unlikely to contain an Aboriginal relic, then cl P1.1 will be satisfied. The consequences of P1.1 being satisfied will depend on whether, under the terms of the planning scheme, the proposed use or development is "permitted" or "discretionary". If all proposed developments were "discretionary", the council would always have the final say, and this case would be indistinguishable from Mills v London County Council and R v Greater London Council; ex parte Blackburn. But the fact that some classes of use or development are designated as "permitted" creates a different situation.

35 If the conduct of Aboriginal Heritage Tasmania results in cl P1.1 being satisfied in relation to a proposal involving a "permitted" use or development, then cl 4.10.2 of the planning scheme has effect. That clause provides as follows:

"4.10.2 Council must grant a permit for a use or development that is permitted pursuant to Section 58 of the Act which may be granted subject to such conditions or restrictions as Council may impose with respect to any matter set out in the Planning Scheme."

If cl S8.7 did not exist, uses or developments designated as "permitted" would be permitted, subject to the power to impose conditions or restrictions under cl 4.10.2, regardless of any advice given or not given by Aboriginal Heritage Tasmania. The presence of cl S8.7 creates two possible outcomes in such a situation. One is that Aboriginal Heritage Tasmania can, in a sense, have the final say, by conducting itself in such a way as to satisfy P1.1, with the result that the proposed development is permitted, subject to any conditions or restrictions imposed under cl 4.10.2. The alternative is that Aboriginal Heritage Tasmania can provide advice to the proponent or the council, in time for that advice to be received within the 14-day time limit, making it possible for the proposed development to be permitted only if a site survey satisfying cl P1.2 is provided to the council, or a permit satisfying cl A1 is granted by the appropriate Minister. If the proponent is compelled to obtain an appropriate site survey or permit, it is the council, not Aboriginal Heritage Tasmania, that has the final say.

36 Having regard to the legislative provisions referred to above, I cannot see any reason for concluding that a clause in a planning scheme that creates that state of affairs is beyond the scope of the powers conferred upon the commission by the LUPA Act. It follows that grounds (b) and (c) must fail.

37 It may be that the regime created by the new cl S8.7 will prove to be far from ideal. Aboriginal Heritage Tasmania might not have the resources to give proper scrutiny to every application notified to its officers. Satisfactory site surveys might be difficult to obtain. Acceptable solution A1 would not be satisfied by the granting of a permit by the Director of National Parks and Wildlife under the Aboriginal Relics Act 1975, s9(1), but only by the granting of a permit by the Minister on the recommendation of that Director under s9(2). However it is not the role of this Court to evaluate cl S8.7 on its merits. The role of the Court is to determine whether cl S8.7 has been amended in accordance with the law. The contrary has not been demonstrated. The application is dismissed.