Central Coast Council v Resource Management and Planning Appeal Tribunal
[2007] TASSC 41
•20 June 2007
[2007] TASSC 41
CITATION:Central Coast Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 41
PARTIES: CENTRAL COAST COUNCIL
v
RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: LDR M77/2006
DELIVERED ON: 20 June 2007
DELIVERED AT: Hobart
HEARING DATE: 5 June 2007
JUDGMENT OF: Blow J
CATCHWORDS:
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Interpretation of planning scheme – Land in town shown uncoloured on map – Whether unzoned or zoned rural.
Acts Interpretation Act1931 (Tas), s8A.
Aust Dig Environment and Planning [52]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: No appearance
Attorney-General P Turner
Solicitors:
Applicant: S B McElwaine
Respondent: Director of Public Prosecutions
Attorney-General Director of Public Prosecutions
Judgment Number: [2007] TASSC 41
Number of paragraphs: 19
Serial No 41/2007
File No LDR M77/2006
CENTRAL COAST COUNCIL v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL
REASONS FOR JUDGMENT BLOW J
20 June 2007
This is an application pursuant to the Judicial Review Act 2000. It concerns 190 square metres of land that forms the rear part of a property known as 95 Main Street, Penguin. That property comprises the land in two certificates of title. The land to which this application relates is Lot 4 on diagram 15702, and is the whole of the land in certificate of title vol 15702, folio 4. I will refer to it as "Lot 4".
The town of Penguin forms part of the municipal area administered by the applicant ("the council"). On 11 April 2006 a firm of architects in Port Macquarie applied to the council on behalf of a company named Nomico Pty Ltd for a permit under the Land Use Planning and Approvals Act 1993 ("the LUPA Act") for a multi-storey commercial and residential development on adjacent properties at 93 and 95 Main Street, Penguin. It was proposed that part of a building would be constructed on Lot 4. The council refused the application. Nomico Pty Ltd appealed to the respondent ("the Tribunal") pursuant to the LUPA Act, s61(4). At an early stage in the appeal proceedings, a planner representing a party opposed to the development wrote to the registrar of the Tribunal, suggesting that the zoning of Lot 4 prohibited the development. The Tribunal, after inviting and considering written submissions, ruled that that was so. The hearing and determination of the appeal to the Tribunal has not proceeded any further.
The council, whilst opposed to the proposed development, is aggrieved by the ruling of the Tribunal, hence this application. Neither the Tribunal nor any other party to the Tribunal proceedings wished to appear or be represented at the hearing of this application. The Attorney-General intervened in the proceedings pursuant to the Judicial Review Act, s39, in order to act as a contradictor, and was represented by counsel.
A railway line runs through Penguin, immediately to the north of 93 and 95 Main Street. It passes between those properties and Bass Strait. On 1 July 1975 Tasmania's railways were transferred to the Commonwealth. Pursuant to the Railways (Transfer to Commonwealth) Act 1975 (Tas), s5(1), and pursuant to an agreement between the Commonwealth and the State made on 23 May 1975 that appears in a schedule to that Act, all land belonging to the Crown in right of the State of Tasmania, and to the Transport Commission, that was "used or held for use or intended or reserved for the purposes of the railways" was vested in the Australian National Railways Commission. Lot 4 was part of the land that was thus vested. In 1981, the Australian National Railways Commission transferred Lot 4 to a private owner. Ever since then, it has not been used for railway purposes, nor has it been held or reserved for possible future use for railway purposes.
The council administers the Central Coast S46 Planning Scheme No 1 of 1993 ("the planning scheme"). The town of Penguin falls within the area covered by that scheme. The scheme consists of an ordinance, and a series of geographical plans. The plans show, by colours or markings, the various zones and other details of the area to which the planning scheme applies. On those plans, the railway, all roads, all rivers, and all land zoned "Rural (R) – General" are uncoloured. All other areas are coloured, according to their zoning. Most of the properties in the central business district of Penguin are coloured dark blue, indicating that their zoning is "Business (BA) – Central". The properties so shown on the relevant plan include the whole of 93 Main Street, and the southern part of 95 Main Street, but not Lot 4. Lot 4 was left uncoloured. It seems highly likely that in 1993, when the relevant plan was prepared and the planning scheme was approved, the fact that Lot 4 had been transferred into private ownership was overlooked.
The Tribunal took the view that the result was that Lot 4 is zoned Rural (R) - General, and that the proposed development cannot be permitted because such a development is prohibited in that zone. The Attorney-General contends that the Tribunal's conclusions were correct. The council contends that the result of Lot 4 remaining uncoloured on the relevant plan is that it is not the subject of any zoning or restriction under the planning scheme, and that therefore no permit is needed for that part of the proposed development that is planned for Lot 4.
The relevant provisions of the planning scheme
Clause 1.1.1 of the planning scheme provides as follows:
"1.1.1 This Planning Scheme consists of:
(a)the Ordinance; which is this document; and
(b)the Plan; which is the geographical plan or plans which show by colours or markings the various zones and other details of the area to which this scheme applies."
Clause 1.2.1 provides as follows:
"1.2.1 This Scheme applies to the whole of the land within the area wholly enclosed by a thick black line on the Plan and covers all the land under the jurisdiction of the Municipality of Central Coast."
Clause 1.3.5 contains the following definition:
"Zone:
means a particular area delineated on the Plan within which land is to be used, developed and subdivided in accordance with any relevant provisions of this Scheme."
The planning scheme includes a number of clauses relating to its interpretation, including the following:
"1.3.4The provisions of the Acts Interpretation Act 1931 shall, unless inconsistent with the context or subject matter, apply to the interpretation of this Scheme."
"1.5.1The objectives of this Scheme are set out in Part 5 of this Ordinance and where any question arises as to the interpretation or effect of any part of this Scheme those objectives should be referred to in order to provide the basic intent."
Part 5 of the planning scheme consists of a list of objectives, many of which are completely irrelevant to this case. It includes the following:
"5.1.1 The objectives of this Scheme are the:
(a)orderly settlement and management of population, commerce, rural production and industry;
(b)proper use and development of land, buildings and resources;
…
(f)preservation and promotion of logical, efficient and safe transport and service routes;
…
(j)protection of rural land from inappropriate residential, industrial and commercial development;
…
(o)…".
The planning scheme makes provision for 17 different zones, including the Business (BA) – Central zone and the Rural (R) – General zone. Part 6 of the planning scheme sets out "statements of intent" for each of those 17 zones. The statement of intent for the Rural (R) – General zone reads as follows:
"6.2.12 Rural (R) - General
This zone is primarily intended to accommodate Agricultural Uses and Extractive Industry.
6.2.12(a)The allocation of land in and to this zone and its location is intended to ensure that:
(i) the agricultural potential of agricultural land is protected;
(ii) the productive capacity of Agricultural Uses and Extractive Industry is given priority;
(iii) fragmentation of rural holdings is prevented;
(iv) development and use which is compatible and associated with Agricultural Uses are allowed where appropriate;
(v) the ecological, cultural and landscape values of rural land are protected;
(vi) water catchments are protected."
The zones provided for in the planning scheme do not include any for roads, railways or rivers. The scheme makes provision for roads, railways and rivers in the following clauses:
"3.15
3.15.1For the purposes of this Scheme, any land that is a road (including land dedicated as a road after the date of taking effect of this Scheme) including a mall that is not on privately owned land, shall be deemed to be land within a road reserve, irrespective of whether such land is shown uncoloured or rural, or within any other area indicated on the Plan.
3.15.2For the purpose of this Scheme, land within a road reserve shall be deemed to be land set aside for road purposes and nothing in this Scheme shall affect the lawful activities of the Council or a relevant Public Authority in the exercise of its powers and duties in, on, over or under that land.
3.16
3.16.1For the purposes of this Scheme, land that is used for railway purposes, excluding:
(a)and that is used for ancillary purposes such as staff housing; and
(b)land that is a road reserve; and
(c)land that is a river;
irrespective of whether such land is shown uncoloured or rural or within any other area indicated on the Plan, shall be deemed to be land set aside for railway purposes and nothing in this Scheme shall affect the lawful activities of the Public Authority constituted for the purposes of the rail system in, on, over or under that land.
3.17
3.17.1For the purposes of this Scheme, a river shall be deemed to be zoned Public Open Space irrespective of whether such] land is shown uncoloured or rural or within any other area indicated on the Plan.
3.17.2An area of the Leven River extending downstream from the Hobbs Parade) Bridge a distance of 340 metres and embracing a width of 30 metres from the high water mark on the eastern bank, shall be deemed to be zoned Recreation and Community (PP) - Public Purposes provided that any development in that area that is not on a moveable watercraft shall not obstruct or significantly restrict the stream flow.
3.17.3Nothing in this Scheme shall affect the lawful activities of the Council or any Public Authority having jurisdiction in, on, over or under a river in the exercise of its powers and duties."
Interpretation of the planning scheme in relation to Lot 4
The Tribunal's reasons for rejecting the council's contentions, and concluding that Lot 4 is zoned Rural (R) – General, were as follows:
"21It is clear when reference is had to Part 1 of the Scheme that the Scheme applies to the whole of the land within the area wholly enclosed by the thick black line on the plan (Clause 1.2.1). Lot 4 is within that area.
22The Scheme, as indicated above, indicates zones by reference to colours or markings. In the Tribunal’s view it is clearly the case that all of the land within the area of the Scheme is divided into one zone or another, including land which is being used or might be used for other purposes at one time or another, for example, road or railway.
23In the event that it is not actually being used for railway purposes it is clear from the Scheme that the “default” zoning, as it were, is Rural (R) - General. This is completely consistent with Clause 3.16.1. As is pointed out in Ms McNicol’s submission the word “irrespective” in Clause 3.16.1 is particularly important. It seems to the Tribunal that this older form of drafting is not significantly different to the more “modern” concept of overlay.
24The Tribunal is in no doubt that Lot 4 falls within the Rural (R) – General Zone. As such the development that is proposed is prohibited."
Counsel for the council submitted that the Tribunal erred in treating the Rural (R) – General zoning as "default" zoning. There is no express provision in the planning scheme to the effect that areas left uncoloured on the plan, if they do not comprise roads, railways or rivers, are to be treated as having that zoning. The interpretation of the planning scheme, as it relates to Lot 4, is not that simple.
At the hearing I discussed with counsel whether, on a proper interpretation of the planning scheme, Lot 4 should be treated as railway land. I have concluded that it should not. Clause 3.16.1, which is the only provision relating to railways, applies only to "land that is used for railway purposes". By virtue of cl 1.3.2, the word "used" must be taken to include "intended to be used". However, when the planning scheme commenced operation, and ever since it commenced operation, Lot 4 has neither been used, nor been intended by anybody to be used, for railway purposes. Clause 3.16.1 can therefore not have any application. Even if it did, it does not place any restriction on development by a private owner. The clause makes the lawful activities of the railway authority immune from the provisions of the planning scheme, but has no other effect.
There is no reason to think that the authors of the planning scheme intended Lot 4 to be treated as railway land or as rural land. Having regard to the statement of intent for the Rural (R) – General zone that I have quoted, a rural zoning for Lot 4 would be somewhat absurd. In Metropolitan Coal Company of Sydney Ltd v Australian Coal and Shale Employees' Federation (1917) 24 CLR 85 at 199, Isaacs and Rich JJ said:
"In construing an instrument where its words are susceptible of two meanings, it is always legitimate to take into account reasonableness, justice and consistency on one hand, and unreasonableness, injustice and absurdity on the other."
In all the circumstances, I think that the council's argument that Lot 4 is unzoned, and that the planning scheme therefore places no restrictions on its use or development, is very powerful. But I do not think it should succeed. Clause 1.3.4 of the planning scheme makes the provisions of the Acts Interpretation Act applicable. Section 8A of that Act requires that an interpretation of a piece of legislation that promotes its purpose or object be preferred to one that does not promote that purpose or object. That section has to be applied in the interpretation of the planning scheme, including the geographical plans that form part of it. I think it is clear from cl 1.2.1 that the principal purpose or object of the planning scheme is to apply planning controls to the whole of the land to which the scheme applies, ie to every piece of land within the area enclosed by a thick black line on the relevant plan. An interpretation resulting in Lot 4 being treated as unzoned and uncontrolled would not promote that purpose or object. An interpretation resulting in Lot 4 being treated as zoned Rural (R) – General, whilst that would not be an ideal result, would promote that purpose or object, albeit imperfectly. The interpretation contended for by the council could result in a wholly inappropriate development on Lot 4, and that development might stay there for many years. The interpretation adopted by the Tribunal might result in the use or development of Lot 4 being unduly restricted, but only until such time as an appropriate amendment can be made to the planning scheme to rectify the apparent mistake that has given rise to these proceedings. I think it must follow that the interpretation adopted by the Tribunal, to a sufficient degree, does promote the principal purpose or object of the planning scheme.
It follows that the Tribunal's ruling was correct, and that this application should be dismissed.
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