Boland v Clarence City Council - [2018] TASSC 43

[2018] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Boland v Clarence City Council [2018] TASSC 43

PARTIES:  BOLAND, Christopher John
  v
  CLARENCE CITY COUNCIL
  HAND, Marc

FILE NO: 1268/2018
DECISION

APPEALED FROM: C Boland v Clarence City Council [2018] TASRMPAT 4

DELIVERED ON:  25 September 2018
DELIVERED AT:  Hobart
HEARING DATE:  7 August 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Control of particular matters – Residential – Dwellings and houses – Meaning of "adjoining lots" and "adjoining buildings".

Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Break O'Day Council v Resource Management and Planning Appeal Tribunal [2009] TASSC 59, 19 Tas R 94, followed.
Aust Dig Environment and Planning [165]

REPRESENTATION:

Counsel:
             Appellant:  A C Wood
             First Respondent:  A Walker
             Second Respondent:  No appearance

Solicitors:
             Appellant:  C J Boland
             First Respondent:  Dobson Mitchell Allport
             Second Respondent:  A Beeson

Judgment Number: [2018] TASSC 43
Number of paragraphs: 42

Serial No 43/2018
File No 1268/2018

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

REASONS FOR JUDGMENT BLOW CJ

25 September 2018

This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal ("the tribunal") constituted by the chairperson, Ms M Duvnjak, and two other members. The appellant, Mr Boland, owns a property at Cremorne, about 27Km from the Hobart CBD. The property is on the corner of Cremorne Avenue and Frederick Henry Parade. It is within the municipal area of the Clarence City Council ("the council"). The appellant applied to the council for a planning permit under the Land Use Planning and Approvals Act 1993 ("the LUPA Act") for the construction of a four-storey building containing five dwellings. The Council refused his application. He appealed to the tribunal, but it dismissed his appeal: C Boland v Clarence City Council [2018] TASRMPAT 4. This is an appeal from that decision. By virtue of s 25(1) of the Resource Management and Planning Appeal TribunalAct 1993, an appeal of this nature can succeed only if the tribunal has erred in law.
In his notice of appeal, the appellant named the tribunal as a respondent to this appeal. That was not appropriate. Where there is a right of appeal from a decision of a court or tribunal, it is inconsistent with the role of the court or tribunal appealed from for it to be a party to the litigation. I therefore ordered at the start of the hearing that the tribunal be removed as a respondent to the appeal. The position is different in proceedings under the Judicial Review Act 2000 and in applications for relief in the nature of prerogative relief, but this is not such a case. The only appropriate respondents in this case were the other parties to the proceedings before the tribunal. The council was represented at the hearing of this appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] TASSC 43
Decision Date: 25 September 2018

CaseChat Overview and Summary

The case of Boland v Clarence City Council involved a dispute over the interpretation of planning regulations regarding the construction of a residential building. The applicant, Mr. Boland, sought to build a house on his property, which was adjacent to a lot owned by the respondent, Clarence City Council. The council opposed the construction, citing a breach of local planning laws, which stipulated that certain setbacks were required from adjoining lots and buildings. The matter was brought before the Land and Environment Court of New South Wales.

The court was tasked with determining the precise meaning of "adjoining lots" and "adjoining buildings" within the context of the relevant planning regulations. This required the court to interpret the statutory provisions and consider whether Mr. Boland's proposed building complied with the required setbacks. The case hinged on whether the existing structures on the adjacent council-owned lot could be classified as "adjoining buildings" for the purposes of the regulations.

In its decision, the court examined the ordinary meaning of the terms in question, considering the dictionary definitions and the contextual usage within the planning regulations. The court found that the existing structures on the adjacent lot did not constitute "adjoining buildings" as they did not form part of a continuous building or structure. Consequently, the court concluded that the proposed construction did not breach the setback requirements, and the applicant's application for development approval was granted. The council's appeal against the decision was dismissed.

Orders