Bourke v Resource Management and Planning Appeal Tribunal & Ors
[2005] TASSC 19
•5 April 2005
[2005] TASSC 19
CITATION:Bourke v Resource Management and Planning Appeal Tribunal & Ors [2005] TASSC 19
PARTIES: BOURKE, Brendon Charles
v
RESOURCE MANAGEMENT and PLANNING APPEAL TRIBUNAL
MARTYN, Michael
MARTYN, Marilyn
THOMPSON, Andrew
THOMPSON, Sue
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M253/2004
DELIVERED ON: 5 April 2005
DELIVERED AT: Hobart
HEARING DATE: 9 February 2005
JUDGMENT OF: Evans J
CATCHWORDS:
Environment and Planning – Building control – Council consent and approval – Consents approvals and permits – Other matters – Validity of permit – Correction of error in permit.
Land Use Planning and Approvals Act 1993 (Tas), s55.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, referred to.
Aust Dig Environment and Planning [330]
REPRESENTATION:
Counsel:
Applicant: S P Estcourt QC
Respondents: No appearance
Solicitors:
Applicant: Butler McIntyre & Butler
Respondents: No appearance
Judgment Number: [2005] TASSC 19
Number of paragraphs: 24
Serial No 19/2005
File No M253/2004
BRENDON CHARLES BOURKE v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL, MICHAEL MARTYN, MARILYN MARTYN, ANDREW THOMPSON and SUE THOMPSON
REASONS FOR JUDGMENT EVANS J
5 April 2005
The applicant applies pursuant to the Judicial Review Act 2000, s17, to review several decisions of the Resource Management and Planning Appeal Tribunal ("the Tribunal"), the key decision being that a permit issued by the Hobart City Council to the applicant for house extensions was invalid. The other decisions subject to review are consequential upon the finding that the permit was invalid.
The following factual background to the matter is substantially taken from a summary of the facts provided to the Court by Mr Estcourt QC, counsel for the applicant, which summary I am satisfied is correct.
The applicant owns and resides in the house known as 2 Greenlands Avenue which occupies the corner of Greenlands Avenue and King Street, Sandy Bay.
The respondents, Dr and Mrs Martyn, live directly opposite the applicant in Greenlands Avenue, at 1 Greenlands Avenue.
The respondents, Mr and Mrs Thompson, live next door to the applicant in King Street, at 86 King Street.
On 16 April 2003 the applicant made an application to the Hobart City Council for a planning permit pursuant to the City of Hobart Planning Scheme and as required by the Land Use Planning and Approvals Act 1993 ("LUPAA"), s57, for extensions to the existing house at 2 Greenlands Avenue. On that date, 16 April 2003, a set of plans was submitted to the Council and were date stamped by the Council's Customer Service Section.
On 23 April 2003 the Council requested further information from the applicant, namely the dimensions of all elevations and floor plans, details of the existing and proposed floor area and details of the existing title area.
On 30 April 2003 further plans were submitted by the applicant providing the further information sought by the Council and showing a number of changes to the 16 April plans. These plans were date stamped 30 April 2003 by the Council's Customer Service Section.
At the time the amended plans were submitted, the original plans had not been processed in any way and the application had not been publicly notified or advertised.
After the 30 April plans were submitted, that set of plans, along with the original plans, were provided to Council administrative staff and a notice for posting on site was prepared along with a notice for the newspaper and letters notifying neighbours. I observe that the evidence does not suggest that the notices issued contained a reference to the date of the plans; the relevant effect of LUPAA, s57(4), coupled with the Land Use Planning and Approvals Regulations, reg11, is that the notice must describe the content of the application and name a place where a copy of it, and all plans and other documents submitted with it, can be inspected. The plans, the title and a copy of the planning application were placed in an envelope and provided to Council's front counter where it was made available to anybody who came in and wanted to view the plans during the notification period.
To the best of the knowledge of Mr Ian Stanley, the Council's senior statutory planner, both sets of plans would have been available during the two week advertising period although he made that statement based on what was Council's usual practice and not on personal knowledge.
On the evidence before it, the finding of fact made by the Tribunal was that it was:
"… unable to find whether it was the drawings dated 16 April 2003 or the drawings dated 30 April 2003 or both which were made available for inspection and/or seen by Dr Martyn or others."
The Tribunal said that:
"… the evidence … leaves the position open that persons inspecting the development application at council following public notification, may have seen the document dated 16 April 2003 and not those dated 30 April 2003."
I should say that in my view the only inference open, in the absence of evidence to the contrary, is that consistent with LUPAA, s57(4), the Council made all plans submitted with the application available for examination. There was no reason for the Council to do otherwise.
Following the close of the public notification period, Mr Stanley, who had the Council's delegated authority to deal with the application, considered the plans of 30 April and approved the application. He placed the Council's approval stamp on the 30 April plans and signed it.
The process of approval undertaken by Mr Stanley involved the preparation by him of what is called a "Delegated Authority Report" and the issue of a "Planning Permit" consistent with that report.
When an application for a permit is first lodged, administrative staff input into the Council's computer system the date on which the original plans are submitted and that becomes the default date that is automatically generated into the delegated report template and the permit template when those documents are prepared. If, as here, any other date is applicable it must be inserted manually. Mr Stanley failed to do that, with the result that the 30 April plans he actually approved at the time he wrote his report were mistakenly referred to in the report and in the permit as 16 April 2003.
The applicant was not misled by the error in the permit and acted on it on the basis that it related to the plans dated 30 April 2003. Mr Stanley's error may never have come to light save that almost 12 months later, on 18 February 2004, the applicant, having carried out the extensions to his house, applied to the Council under LUPAA, s56, for a minor amendment to his permit.
The minor amendment was granted and the respondents, being representors to the original permit, were notified of the minor amendment and they appealed to the Tribunal pursuant to LUPPA, s61, against the allowance of the amendment. Dr and Mrs Martyn additionally sought orders under LUPAA, s64, preventing the carrying out of any further work.
When the s61 appeals, namely 124/2004P and 129/2004P and the s64 application, A17/04, came before the Tribunal, counsel for the respondents raised the question of the validity of the permit as a preliminary issue. Counsel in substance admitted that the permit was not valid as the Council, having approved the applicant's application in relation to plans dated 30 April 2003, erroneously issued a permit which referred to plans dated 16 April 2003.
There was ultimately no issue before the Tribunal as to Mr Stanley's evidence that he, as the Council's duly authorised delegate, had approved the plans dated 30 April 2003 and that the reference in the permit to plans dated 16 April 2003 was an error, and the Tribunal so held. The Tribunal went on to conclude:
"It follows that the permit was flawed in that it purported to grant a permit for a development (that represented in the 16th April plans) which was not the subject of the actual decision to grant a permit (that represented in the 30th April plans)."
Having so concluded, the Tribunal addressed an application pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s22, to dispense with the requirement that the Council grant a permit with respect to the plans lodged by the applicant. Having dismissed that application, the Tribunal said, "The consequence is that the permit is invalid".
It seems from my reading of the transcript of the hearing before the Tribunal that, as is often the case where a preliminary issue is advanced, the issue was not presented to the Tribunal against a comprehensive evidentiary background that related to the issue and that the Tribunal was provided with minimal assistance in relation to the legal questions raised. In fact, the Tribunal was diverted from the crucial issue, the validity of the permit, by a misconceived application for dispensation from the need for the Council to grant a permit.
As I have said, the crucial issue is whether the permit was valid. The only basis for attacking the permit is its erroneous reference to the date of the plans to which it relates. It is pertinent that this error followed, and did not precede, the giving of public notice of the application for the permit. Had the latter been the case and the error been made in giving public notice, ordinarily the resultant permit could not be said to have been granted in accordance with the applicable statutory provisions and it would be invalid; Scurr v Brisbane City Council (1973) 133 CLR 242 and Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91. In this case, the grant of the permit is not consequent upon any error. The error is in the wording of the permit itself. Where such an error in a permit is indicative of a failure to comply with the legislative provisions that authorise its grant, the test for determining the validity of the permit is whether it was a purpose of the legislation that an act done in breach of its provisions should be invalid, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390. It can readily be accepted that the grant of a permit with reference to plans other than those to which the application for the permit related, does not accord with the applicable provisions of LUPAA. However, where as in this case, the reference to the wrong plans in the permit is the result of an error, it is plain from LUPAA, s55, that ordinarily the error will not invalidate the permit. The assumption implicit in the section is that such an erroneous permit remains valid for the purposes of correction. The section provides:
"55 A planning authority may correct a permit granted by it if the permit contains –
(a) a clerical mistake or an error arising from any accidental slip or omission; or
(b) an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the approval."
I have no hesitation in concluding that the error made in the permit issued to the applicant can be categorised as a clerical mistake or an error arising from any accidental slip or omission within LUPAA, s55(a). It is clear that if the error is not corrected, the applicant will be greatly prejudiced and there is no evidence to suggest that its correction would unfairly prejudice anyone. In these circumstances, I have no hesitation in concluding that the finding that the permit was invalid was wrong in law and should be quashed and that the permit should be corrected.
The decision of the Tribunal, J165/2004, that the permit granted to the applicant by the Hobart City Council for a house extension to the existing house at 2 Greenlands Avenue, Sandy Bay is invalid is quashed as from the date of that decision, namely 30 June 2004, and it is ordered that the summons dated 1 July 2004 in proceedings A17/2004 be set aside as from the date of its issue. These orders are made pursuant to the Judicial Review Act, s27(1)(a). Pursuant to that Act, s27(1)(c), it is declared that the said permit is a valid permit which qualifies for correction of the date of the submitted drawings described therein from "16 April 2003" to "30 April 2003" under LUPAA, s55(a). With reference to this declaration, I note that the Council informed the Tribunal that it would normally have corrected the permit but had deferred doing so as it was thought inappropriate to take that course whilst the matter was before the Tribunal. The correction should be made. Pursuant to the Act, s27(1)(c), appeals numbered 124/2004P and 129/2004P are referred to the Tribunal for consideration with a direction that the said permit is a valid permit requiring only correction as aforesaid by the Council.
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