Calvary Health Care Tasmania Inc v Hobart City Council
[2005] TASSC 49
•6 June 2005
[2005] TASSC 49
CITATION:Calvary Health Care Tasmania Inc v Hobart City Council [2005] TASSC 49
PARTIES: CALVARY HEALTH CARE TASMANIA INC
v
HOBART CITY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 19/2005
DELIVERED ON: 6 June 2005
DELIVERED AT: Hobart
HEARING DATE: 25 May 2005
JUDGMENT OF: Blow J
CATCHWORDS:
Environment and Planning – Environmental planning – Development control – Existing uses – Operation of existing use provisions – Scope of preservation of rights – Distinction between development and use – Amendment of planning scheme regulating development.
Land Use Planning and Approvals Act1993 (Tas), s20(3)(a).
Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448; Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council (2001) 117 LGERA 43, followed.
Aust Dig Environment and Planning [248]
REPRESENTATION:
Counsel:
Appellant: D R Armstrong
Respondent: P J Ashworth
F L & S D Davies: S B McElwaine
Solicitors:
Appellant: Don Armstrong
Respondent: Simmons Wolfhagen
F L & S D Davies: Shaun McElwaine
Judgment Number: [2005] TASSC 49
Number of paragraphs: 48
Serial No 49/2005
File No LCA 19/2005
CALVARY HEALTH CARE TASMANIA INC v
HOBART CITY COUNCIL
REASONS FOR JUDGMENT BLOW J
6 June 2005
This is an appeal pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s65, from two decisions of the Resource Management and Planning Appeal Tribunal. These decisions concerned six parking spaces in the grounds of a hospital operated by the appellant ("Calvary") in Lenah Valley.
Within the hospital grounds there is a house at 20 Joynton Street. That house is used by Calvary for hospital purposes. A hospital car park extends into the former back yard of 20 Joynton Street. Prior to 1994, the sealed surface of the car park ended about 5 metres from the back wall of the house, and was separated from the house by a fence with jasmine growing on it. In 1994 or 1995 the fence and the jasmine were removed, and the car park was extended to a line about 1 metre from the back wall of the house. Six parking spaces were marked out on the extended portion of the car park. They were used as part of the car park, at least until last year. No permit from the respondent ("the Council") had been sought. It took the view that the extension of the car park and the use of the six parking spaces contravened the City of Hobart Planning Scheme 1982 ("the planning scheme"). In 2004 it applied to the Tribunal under the LUPA Act, s64, for an order restraining Calvary from using the six parking spaces as car parking. On 1 November 2004 the Tribunal made a finding that the use of the six parking spaces was contrary to the provisions of the planning scheme. On 17 February 2005 it made orders restraining Calvary from using the two parking spaces nearest to an adjoining property, 22 Joynton Street, which is owned by a Mr and Mrs Davies, and an order requiring Calvary to erect and maintain a barrier precluding access to those two parking spaces and the area between them and the Davies' boundary. This is an appeal from both of those decisions of the Tribunal. Since all the grounds of appeal relate to the first decision of the Tribunal, it will not be necessary to examine its reasoning in the second decision.
The Council took no part in the hearing of the appeal. I gave its counsel leave to withdraw. Mr and Mrs Davies were not named as respondents to the appeal, but were represented at the hearing by Mr McElwaine of counsel, who argued for the appeal to be dismissed.
The jurisdiction and powers of the Tribunal
The obligation to comply with planning schemes is imposed by the LUPA Act, s63(2)(a), which reads as follows:
"63 (2) A person must not use land in a way, or undertake development or do any other act, that –
(a)is contrary to a State Policy, a planning scheme or special planning order …".
Under s63(3) and (4), a contravention of s63(2) amounts to an offence punishable by a fine.
It should be noted that the opening words of s63(2) refer separately to the use of land and to the undertaking of development. The following definitions appear in s3(1), and apply unless the contrary intention appears:
"'development' includes –
(a) the construction, exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace; and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings –
but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f), prescribed by the regulations for the purposes of this definition;"
"'use', in relation to land, includes the manner of utilising land but does not include the undertaking of development;".
Provision is made in the LUPA Act, s64, for civil enforcement proceedings before the Tribunal. The relevant provisions in s64 read as follows:
"64 (1) Where a person contravenes or fails to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.
…
(3) If –
(a)after hearing –
(i)the applicant and the respondent; and
(ii)any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings –
the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed to comply with a provision of this Part; or
(b)the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard –
the Appeal Tribunal may, by order –
(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and
(d)preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and
(e)require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.
…
(16) Proceedings under this section may be commenced at any time within 12 months after the date of the alleged contravention of, or failure to comply with, a provision of this Part."
Because the extension of the car park took place in 1994 or 1995, s64(16) prevented the Council from basing its application on the work that was undertaken at that time. Instead it contended that Calvary, by continuing to use the six parking spaces in their relocated position, was using land in a way that was contrary to the planning scheme, or doing acts that were contrary to the planning scheme, within the meaning of s63(2)(a). None of the grounds of appeal raise any issue as to the proper interpretation of s63(2)(a) or s64(16).
The planning scheme
Under the planning scheme the whole of the hospital grounds, including 20 Joynton Street, is zoned "Special Use 7". Table A1 of the planning scheme specifies in relation to land so zoned that uses of the land falling within "Use Group VI" are permitted. Table A2 specifies the uses within that use group as "the development of land for a hospital, a welfare institution".
Clause 1.5.1 provides:
"No person shall carry out any development within the Planning Area without first obtaining the written approval of the Council issued in accordance with the provisions of Part 2 of the Planning Scheme."
Clause 2.1.1 requires any person "wishing to undertake a development (including use)" to lodge an application. Clause 2.3.2 requires the Council, before granting or refusing approval for any development or imposing conditions in respect of any development, to have regard to various things, including "the Desired Future Character of the Precinct in which the development is situated". The subject land falls within the Calvary Hospital Precinct. The statement of desired future character for that precinct is set out in cl 5.22.1. That clause includes the following:
"The Precinct should continue to function primarily as a general hospital with associated health services. Further development of the hospital and its associated uses shall only occur in accordance with the 'Calvary Hospital Master Plan', Number MP2 as finally approved by the Commissioner for Town and Country Planning on 13th November 1992 …
Accepting the ability to develop in accordance with and subject to the restrictions of the 'Calvary Hospital Master Plan', any development shall ensure that the amenity of adjacent residential areas is maintained."
The provisions of the planning scheme relating to Calvary Hospital Master Plan Number MP2 ("the master plan") were inserted by an amendment that took effect upon being approved on 13 November 1992. The reference to approval in cl 5.22.1 is a reference to the approval of the relevant amendment pursuant to the Local Government Act 1962 ("the 1962 Act"), and not to any other sort of approval.
The master plan is a separate document from the planning scheme. It begins with some provisions headed "development objectives", including the following:
"The development of Calvary Hospital and its associated facilities shall accord with the provisions of the 'Calvary Hospital Master Plan' and specifically shall meet the following objectives:
1 Future building and engineering works shall be contained within the areas delineated on the master plan.
…
6 Parking provisions and on-site access and manoeuvrability shall meet the appropriate Australian design standards and at all times, comply with the Traffic, Access and Parking Schedule of this Scheme [sic] for the additional floor space provided …
7 On site management measures including the sign posting of car parks and access points, and pedestrian access through the site, shall be undertaken to ensure, as far as possible, that kerbside parking is not utilised in preference to on-site parking.
…
13 The activities contained within the buildings shall be determined in accordance with notation on the plans and the 'Description of Uses' contained in Appendix 1. Any variations in the balance of uses must be contained within the envelope and an increase in the area given to one use must be at the expense of the area for another."
Drawings forming part of the master plan show a two-storey car park extending into the former back yard of 20 Joynton Street to a line roughly parallel with the rear wall of the house there, and distant about 5 metres from it. That proposed two-storey car park has not been constructed. The car park now in question is at ground level.
The first decision of the Tribunal
The Tribunal noted that the six parking spaces were about 1 metre from the house, and that the master plan provided for a set back approximately 5 metres from the house. On the basis of that information it concluded that the planning scheme "prohibits the location and use" of the six parking spaces. It then went on to consider whether Calvary had existing use rights pursuant to the LUPA Act, s20. It made a finding, which is not challenged in these proceedings, that the extension of the car park from a distance of about 5 metres from the house to a distance of about 1 metre from the house occurred after 12 February 1994 and before 11 March 1995. It accepted a submission, made on behalf of Calvary, that the proper description of the "use" of 20 Joynton Street was as part of the hospital, and that parking on the hospital site should be considered as part of the hospital use, rather than as a different use. It accepted that the hospital use had continued since a time prior to the planning scheme amendment of 1992 adopting the master plan. It took the view that existing use rights arise by reason of the LUPA Act, s20(3)(a), when a planning scheme purports to prevent the continuance of an existing use, but that the master plan does not purport to do that, but "regulates the developments and activities which may occur as and in connection with" the hospital use. It rejected an argument based on the premise that the area in question had been held in reserve for use as a car park in the future, holding that there was not sufficient evidence to establish that the area was held in reserve for that purpose.
The Tribunal went on to deal with an alternative argument to the effect that, if Calvary had had any existing use rights, it had abandoned them by certain conduct in 1998. It appears that, as a result of an agent of Calvary applying for a permit under the LUPA Act, the Council granted one in 1998 for the carrying out of certain work which included the relocation of the relevant parking spaces at least 4 metres from the back wall of the house. Without making a finding that Calvary had commenced work or in any way acted upon the permit, the Tribunal concluded that, if Calvary had had any existing use rights (and the Tribunal had decided that it had not had any), then they were abandoned by Calvary applying for and obtaining that permit.
Existing use rights
It is common ground that at all material times, for the purpose of the planning scheme and the relevant legislation, the "use" of the whole hospital site, including the land in question, was as a hospital, and that parking was not a separate use, but an activity incidental to the hospital use.
Calvary contends that it acquired relevant existing use rights when the reference to the master plan was inserted into the planning scheme by the amendment that was approved on 13 November 1992. The LUPA Act did not commence until 1 January 1994. In 1992, existing use rights were provided for in the 1962 Act, s759(1), which read as follows:
"759 — (1) Subject to section 756 no planning scheme, master plan, or interim order under this Part affects —
(a) the continuance of a lawful use of land; or
(b) the maintenance and repair of a lawfully erected building or structure,
existing when the scheme, plan, or order takes effect."
The reference to s756 is of no present relevance.
With effect from 1 January 1994, s759 was repealed and replaced by the LUPA Act, s20(3) to (6), which provide as follows:
"(3) Subject to subsections (4), (5) and (6), nothing in any planning scheme is to –
(a) prevent the continuance of the use of any land, upon which buildings or works are not erected, for the purposes for which it was being lawfully used before the coming into operation of the scheme; or
(b) prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation, or the maintenance or repair of such a building; or
(c) prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d) prevent the use of any building or works for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or
(e) require the removal or alteration of any lawfully constructed buildings or works; or
(f) prevent a development, which was lawfully commenced but not completed before the coming into operation of the scheme, from being completed within –
(i) 3 years of that coming into operation; or
(ii) any lesser or greater period specified in respect of the completion of that development under the terms of a permit granted before the coming into operation of the scheme.
(4) Subsection (3) does not apply to a use of land –
(a) which has stopped for a continuous period of 2 years; or
(b) which has stopped for 2 or more periods which together total 2 years in any period of 3 years; or
(c) in the case of a use which is seasonal in nature, if the use does not take
(5) Subsection (3) does not apply to the extension or transfer from one part of a parcel of land to another of a use previously confined to the first-mentioned part of that parcel of land.
(6) Subsection (3) does not apply where a use of any land, building or work is substantially intensified."
Clearly, by virtue of the 1962 Act, s759(1), and the LUPA Act, s20(3)(a), none of the provisions inserted into the planning scheme by the 1992 amendment could prevent the continuance of the hospital use of the land to which this appeal relates. That is so because that land was being lawfully used for hospital purposes before the coming into operation of the provisions inserted into the scheme by that amendment.
Calvary contends that it follows that nothing in the planning scheme as amended could operate so as to regulate its use of the land for hospital purposes. Its opponents contend that s20(3)(a) does not operate so as to prevent the planning scheme from regulating the use of the relevant land for hospital purposes, and that the second sentence of cl 5.22.1 of the planning scheme validly and effectively prohibits further "development of the hospital and its associated uses" otherwise than in accordance with the master plan.
Mr McElwaine submitted that s20(3)(a) applies only in relation to "the continuance of the use" of land; that "use" and "development" mean different things because of the definitions in s3; and that, therefore, s20(3)(a) does not preclude a planning scheme from preventing or restricting development upon land to which it applies. He referred me to the High Court's decision in Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448, which concerned a statutory provision that nothing in an interim development order "shall prevent the continuance of the use of any land for the purposes for which it was lawfully being used immediately before the coming into operation of the order …". The High Court held that, although a parcel of land comprising 732 acres was being lawfully used for rural purposes before the coming into operation of the relevant order, the subdivision of 160 acres thereof into 16 rural residential allotments was validly prohibited by the order because the legislative provision related only to use and not to development.
That case was followed by Balmford J in Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council (2001) 117 LGERA 43. In that case the appellant was a landowner with existing use rights pursuant to legislation worded similarly to s20(3)(a). Additional existing use rights were conferred by a provision of a planning scheme. The appellant wished to demolish six single-storey units which had been constructed before its existing use rights arose, and to replace them with six double-storey detached buildings. The respondent refused permission. Its decision was affirmed by the Victorian Civil and Administrative Tribunal. Balmford J referred to the distinction between use and development, and found that a provision of the planning scheme imposing a control on development was not a control on use, and therefore had effect.
Statutory provisions designed to protect and preserve existing rights should be construed as liberally as the language used, in its context, allows: Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 25; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 144; City of Nunawading v Harrington [1985] VR 641 at 644 – 645. However that principle must be applied in the light of the provisions of the particular statute and planning scheme under consideration.
If Calvary's contentions as to the scope of its existing use rights are correct, a planning scheme may contain provisions that validly and effectively regulate or prohibit development for the purpose of a use consistent with the scheme, but cannot in any respect validly or effectively provide for the regulation or restriction of development for the purpose of a lawful existing use that does not conform with the scheme. That result would be absurd. Parliament surely cannot have intended it. The ordinary literal meaning of the words "prevent the continuance of the use of any land" in s20(3)(a) relates to prevention of the use, rather than regulation of the use. The LUPA Act draws a distinction between use and development. In my view, it follows from all of this that s20(3)(a) has nothing to do with development.
In my view any provisions of the planning scheme or the master plan that regulate the continuance of the hospital use of the relevant land, or development for the purpose of that use, are valid and effective despite the provisions of s20(3)(a).
Ground 1 – The effect of the master plan
The first ground of appeal reads as follows:
"1 The Tribunal erred in law in that, having found that use of the subject land as a 'hospital' was a lawful existing use, it found that Master Plan 2 ('MP2') under the City of Hobart Planning Scheme 1982 ('the Planning Scheme') was capable of regulating the developments and activities which may occur as and in connection with that use."
For the reasons stated above, I consider that nothing in the LUPA Act, s20, concerning existing use rights can limit the effect of the master plan. However, Calvary contends on other bases that the master plan does not have any effect in relation to development or activities upon the relevant land.
Mr Armstrong made a submission to the effect that the master plan is referred to in the planning scheme only in cl 5.22.1, which is the statement of desired future character for the Calvary Hospital Precinct, and that therefore its provisions should not be interpreted as imposing obligations or prohibitions. Mr McElwaine submitted to the effect that the master plan should be interpreted as imposing obligations and prohibitions, even though the pathway to those obligations and prohibitions was through a clause relating to desired future character.
The intended significance of a statement of desired future character can be inferred from clause P.1 of the planning scheme, which reads as follows:
"P.1The use and development of land throughout the Planning Area shall be controlled by mandatory provisions of the Parts and Schedules that constitute the Planning Scheme, and may be further or differently controlled by the exercise of the Council's discretion to refuse or permit development in accordance with the relevant Objectives and Desired Future Character relating to particular Zones and Precincts respectively."
It is apparent that a statement of desired future character is something to be taken into account by the Council when it makes a discretionary decision. However, I do not think that is the end of the matter. The planning scheme is a legislative instrument. So is the amendment by which the reference to the master plan was incorporated into the planning scheme. It is necessary to determine what meaning and effect those legislative instruments were intended to have. The second sentence of cl 5.22.1 begins, "Further development of the hospital and its associated uses shall only occur in accordance with the 'Calvary Hospital Master Plan', Number MP2 …". Nothing could be clearer than that. That provision prohibits further development on the hospital site otherwise than in accordance with the master plan. It is one of the "mandatory provisions" referred to in the first sentence of cl P.1. If the relevant amendment had been well drafted, such a provision would not have been included in a clause about desired future character, which should be only for the guidance of the Council in its discretionary decision-making. But although that provision is in the wrong place, it must be interpreted as having the effect of imposing obligations and restrictions in accordance with the terms of the master plan.
Mr Armstrong relied on cl A.5.1 of the planning scheme. It provides, in relation to uses shown in Table A1 as permitted, that "the development of land for such uses shall hereby be approved in respect of use." He submitted that cl A.5.1 had the effect of giving Council approval to all developments of the hospital site for the purpose of the hospital use, so that there was no obligation to apply for and obtain a permit prior to constructing the extension to the car park. If read in isolation, cl A.5.1 might be interpreted as having that effect, but it must not be read in isolation. The planning scheme must be read as a whole. Clause 1.5.1 requires the written approval of the Council before the carrying out of any development. Clauses 2.1.1 and 2.3 govern the procedures for applications and decision-making in relation to them. Read in context, cl A.5.1 cannot be interpreted as obviating the need for a permit before development is undertaken. It seems to go no further than prohibiting the Council from rejecting an application on the basis of the use or proposed use when that use or proposed use is one designated as permitted.
Mr Armstrong made a submission to the Tribunal that the master plan was not "a building plan or a development plan" but was "a concept document which provides principles for future development, including a building envelope". He adopted that submission as part of his submissions to me. I take him to have meant that the master plan's drawings relating to parking were meant only to be illustrative of what might be developed, and were not intended to define or limit the areas of the hospital grounds to be used for parking.
In relation to this argument, Mr Armstrong made a submission to the Tribunal concerning par25 of a proof of evidence of a witness named Boston. He adopted that submission as part of his argument before me. Part of the paragraph in question was objected to before the Tribunal, and treated as being a submission, rather than evidence. The balance of the paragraph is evidence that, in the decision of the Commissioner for Town and Country Planning that led to the 1992 amendment to the planning scheme, he revealed that he had in mind that Calvary might acquire properties known as 62 Augusta Road and 22 Joynton Street, and that the car park shown in the master plan might then extend into the rear gardens of those properties. However the master plan, because of the provisions of cl 5.22.1, has the status of a legislative instrument, whereas the Commissioner's decision is an extrinsic document. Under the Acts Interpretation Act 1931, s8B(1), consideration may be given to extrinsic material for the purpose of interpreting a provision only if the provision is ambiguous or obscure, or if its ordinary meaning leads to a result that is manifestly absurd or unreasonable, or to confirm the interpretation conveyed by the ordinary meaning of the provision. The drawings in the master plan are not ambiguous or obscure. Their ordinary meaning does not lead to a result that is manifestly absurd or unreasonable. The extrinsic material does not tend to confirm the interpretation conveyed by the ordinary meaning of the drawings. It is therefore not something that may be considered under s8B(1). The Tribunal reached that conclusion, and it was correct.
Mr Armstrong's submission as to the nature and intended effect of the master plan must therefore be evaluated by reference to the master plan and the planning scheme, ignoring the evidence as to the reasoning of the Commissioner. Obviously it was not intended that the drawings in the master plan were to be followed to the centimetre. However the drawings forming part of the master plan provide for a two-storey car park distant four or five metres from the rear wall of the house at 20 Joynton Street; cl 1 of its "development objectives" requires future building and engineering works to be "contained within the areas delineated on the master plan"; and cl 5.22.1 provides that further development shall only occur in accordance with the master plan. The planning scheme and the master plan, taken together, compel the conclusion that the drawings were not just intended to be illustrative, but to impose restrictions on development.
Mr Armstrong made another submission based on cl 1.6.1(i) of the planning scheme. It provides as follows:
"1.6.1Notwithstanding the provisions of Section 1.5.1 (above), planning approval shall not be required for the following development:-
…
(i) the formation, layout and construction of a vehicle hardstanding area behind the building line provided that in a Residential Zone or a Rural Zone the area of 'usable landscaped space' is not reduced to less than 30% of the area of the lot;".
That is a general provision intended to apply to all areas covered by the planning scheme. The master plan makes specific provisions relating to parking at the hospital site. The fourth paragraph of Appendix 1 to the master plan reads as follows:
"The Master Plan is not a building plan but an envelope limiting the location and ultimate size of the buildings. The balance of uses inside that envelope will change with time and so will the associated parking demand. The changes will require applications to the Council for development approval and would not be approved unless parking demands are complied with."
Since this is a specific provision relating to the Calvary site, I think it should take precedence over the general provision, namely cl 1.6.1(i). Generalia specialibus non derogant. See Pearce and Geddes, Statutory Interpretation in Australia, 5th ed, par 4.30.
For these reasons, my conclusion in relation to ground 1 is that the master plan at all material times regulated the development on the land in question, and the scope of activities on the subject land incidental to the hospital use, and that the LUPA Act, s20(3), had no impact in relation to the effect of the master plan. Ground 1 must fail.
Grounds 2 and 3 – The master plan and the existing use
These grounds read as follows:
"2 The Tribunal erred in law and in fact in finding that MP2 does not purport to prevent the continuance of the 'hospital' use.
3 The Tribunal erred in law and in fact in finding that MP2 did not purport to cut down or restrict the lawful existing use of the site as a hospital."
Both of these grounds relate to par24 of the Tribunal's first decision. After reviewing the evidence and the law concerning existing use rights, the Tribunal said the following, referring to the master plan as "MP2":
"24Notwithstanding all of the above considerations, establishment of the proposition that use as a 'hospital' was an existing use right, within the meaning of s20, does not assist the respondent. That is because while MP 2 recognizes existing use as a hospital, it also regulates the particular developments and some of the particular activities which occur within the 'hospital' use class. MP 2 does not purport to prevent the continuance of the 'hospital' use; rather it regulates the developments and activities which may occur as and in connection with that use. Section 20 would have protected the hospital use if MP2 had purported to cut down or restrict that use; but MP2 did not purport to do so."
Mr Armstrong submitted that, because of the LUPA Act, s20(3), the master plan was inoperative. He submitted that, to the extent that the master plan purported to regulate the activities within the use class of "hospital", it must be ultra vires. However, s20(3) does not ever make a provision in a planning scheme ultra vires. What it does is to supersede a provision in a planning scheme, or to make it inoperative, but a provision whose operation is superseded by s20(3) is not thereby ultra vires since it will come into operation once any existing use rights come to an end.
The provisions of the master plan do not prohibit any activity that was being engaged in for hospital purposes prior to the 1992 amendments. They regulate and limit development, and the carrying on of pre-existing activities in areas of the hospital grounds where they have not previously been carried on. The Tribunal was perfectly right to hold that the master plan regulates developments and activities, rather than purporting to prevent, cut down or restrict the hospital use. Grounds 2 and 3 must fail.
Ground 4 – Abandonment of existing use rights
This ground relates to the Tribunal's conclusion that, if Calvary had had any existing use rights, then it abandoned them in 1998 by applying for and obtaining a permit. The ground reads as follows:
"4The Tribunal erred in law and in fact in finding that any existing use rights to use the 6 parking spaces the subject of the proceedings had been abandoned."
In considering the submission as to abandonment, the Tribunal lost sight of the fact that, for the purposes of s20(3)(a), the use that could be protected was the "hospital" use, and not a use for the purposes of parking. The Tribunal's conclusion as to Calvary's conduct in respect of the 1998 permit was that if Calvary "had any existing use rights with respect to the use of the 6 parking spaces for that particular purpose, it was abandoning those rights". Obviously the Tribunal erred in thinking that Calvary could have had existing use rights with respect to the use of the parking spaces for parking. It could only have had existing use rights for the use of the relevant land for hospital purposes, of which parking was one.
Ground 4 has rightly identified an error on the part of the Tribunal, but the error relates only to an alternative argument concerning the 1998 permit, dealt with by the Tribunal only in case its primary conclusion was erroneous. Unless one of the other grounds of appeal succeeds, the Tribunal's decision must stand, and the error identified by ground 4 will be of no consequence.
Grounds 5 and 6
These grounds read as follows:
"5The Tribunal erred in law in finding that the use of the 6 parking spaces as at 1998 was not lawful and that it was not a use capable of protection under the Land Use Planning and Approvals Act 1993, section 20(1).
6The Tribunal erred in law in failing to find that the use of the 6 parking spaces was and is a lawful existing use protected by the provisions of the Land Use Planning and Approvals Act 1993, section 20(1)."
The reference to 1998 in ground 5 is a reference to the time at which Calvary obtained the permit to which the abandonment argument related. In dealing with the abandonment argument, the Tribunal said that, irrespective of the abandonment of any existing use rights with respect to the parking spaces, it considered "that the use of the 6 parking spaces approximately 1m from the rear of 20 Joynton Street, as at 1998, was not lawful". Grounds 5 and 6 attack that comment. Because of the conclusions I have already reached as to existing use rights, the Tribunal was perfectly correct to make that comment.
Conclusion
The grounds of appeal other than ground 4 relate to the reasoning that led the Tribunal to conclude that the use of the six parking spaces in 2004 was contrary to the provisions of the planning scheme. Those grounds have all failed. Ground 4 relates to the Tribunal's conclusion to the effect that, if Calvary had had any relevant existing use rights, it abandoned them in 1998. Error has been shown in relation to the Tribunal's reasoning as to that conclusion, but that error can have no impact on the outcome of the appeal. The appeal must be dismissed.
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