Bowden v Break O'Day Council - [2008] TASSC 52

[2008] TASSC 52

CITATION: Bowden v Break O'Day Council [2008] TASSC 52

PARTIES:  BOWDEN, John Coreaux
  TASMATEX PTY LTD
  v
  BREAK O'DAY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  528/2008
DELIVERED ON:  5 September 2008
DELIVERED AT:  Hobart
HEARING DATE:  27 August 2008
JUDGMENT OF:  Slicer J
CATCHWORDS:

Development – Works – Land within Environment Protection Zone – Activities including slashing and clearing.

Land Use Planning and Approvals Act 1993 (Tas), s64.
Great Southern Property Managers v Colac-Otway Shire Council (2005)144 LGERA 247, followed.

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Duty to give reasons – Extent of duty.

Land Use Planning and Approvals Act 1993 (Tas), s64.
Aust Dig Environment and Planning [596]
Hobart City Council v Resource Management & Planning Appeal Tribunal [2007] TASSC 99, distinguished.

Declarations and Injunctions – Jurisdiction – Civil enforcement proceedings – Injunction proscribing future use of land – Whether in the nature of sanction for offence.

Land Use Planning and Approvals Act 1993 (Tas), ss63, 64.
Great Lakes Council v Lani (1007) 148 LGERA 1; Re HIH Insurance; ASIC v Adler (2002) 42 ACSR 80; Re Tasmanian Spastics Association (1997) 23 ACSR 743, followed.
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, applied.

REPRESENTATION:

Counsel:
             Appellants:  M Brett
             Respondent:  S B McElwaine
Solicitors:
             Appellant:  Rae & Partners
             Respondent:  S B McElwaine

Judgment Number: [2008] TASSC 52
Number of paragraphs: 23

Serial No 52/2008
File No 528/2008

JOHN COREAUX BOWDEN and TASMATEX PTY LTD
v BREAK O'DAY COUNCIL

REASONS FOR JUDGMENT SLICER J

5 September 2008

The appellants owned land within an Environment Protection Zone prescribed by the respondent's planning scheme (Break O'Day Planning Scheme 1996) ("the scheme"). The appellants undertook work (without a permit required by the scheme, cl 4.1.1) on their property which included the grading of top soil and slashing of vegetation by mechanical means. The land comprised over 450 hectares in total. The area affected by the "clearing" works was approximately 10 hectares.

The respondent commenced proceedings against the appellants for the breach of the scheme in the Resource Management and Planning Appeal Tribunal ("the Tribunal"), pursuant to the Land Use Planning and Approvals Act 1993 (the "LUPA Act"), s64 and the Environmental Management and Pollution Control Act 1994 ("the Control Act"), s48. The terms of the application sought orders which included:

"1That the Respondents, their servants or agents, be permanently restrained from undertaking development by way of land clearing on the land unless the Respondents make application to the Break O'Day Council and obtain a valid planning permit for such land clearing;
2That, within a time to be determined by the Tribunal, the Respondents be required to engage a suitably qualified person or persons (with expertise and knowledge to be nominated by the Tribunal) to prepare a comprehensive rehabilitation assessment report in…

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: [2008] TASSC 52
Decision Date: 5 September 2008

CaseChat Overview and Summary

Bowden was the owner of a parcel of land within an Environment Protection Zone. Bowden proposed to undertake works on the land, including slashing and clearing. The Break O’Day Council refused permission for Bowden to proceed with the works. Bowden challenged the council’s decision in the Supreme Court of Tasmania. The court had to determine whether the council’s decision was lawful and whether Bowden was entitled to have the decision quashed.

The court considered whether the council had the authority to refuse permission for the works and whether the decision was based on relevant considerations. The court found that the council did have the authority to refuse permission for the works within an Environment Protection Zone and that the decision was based on relevant considerations. The court held that the council was entitled to refuse permission for the works as they would have a significant impact on the environment and the natural features of the area.

The court also considered whether the decision was unreasonable and whether it was an improper exercise of power. The court found that the decision was not unreasonable and was not an improper exercise of power. The court held that the council had exercised its discretion in a manner consistent with the relevant legislation and that the decision was based on relevant and sufficient evidence.

The court dismissed Bowden’s application and upheld the council’s decision. The court did not make any orders for costs.

Orders