Door of Hope Christian Church Inc v Resource Management and Planning Appeal Tribunal
[2011] TASSC 5
•24 February 2011
[2011] TASSC 5
COURT: SUPREME COURT OF TASMANIA
CITATION:Door of Hope Christian Church Inc v Resource Management and Planning Appeal Tribunal [2011] TASSC 5
PARTIES: DOOR OF HOPE CHRISTIAN CHURCH INC
v
RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL
FILE NO/S: 803/2010
JUDGMENT
APPEALED FROM: M T Gilpin as trustee of the Gilpin Land Trust and M C Gilpin v Mark Webb Building Services Pty Ltd and Door of Hope Christian Church Inc [2010] TASRMPAT 172
DELIVERED ON: 24 February 2011
DELIVERED AT: Hobart
HEARING DATE: 10 February 2011
JUDGMENT OF: Blow J
CATCHWORDS:
Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Supreme Court – Right of appeal from Resource Management and Planning Appeal Tribunal – Decision of tribunal not to dismiss enforcement application for want of jurisdiction – Availability of statutory rights of appeal.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s25.
Land Use Planning and Approvals Act 1993 (Tas), s65.
State of Tasmania v Latham [1999] TASSC 148, followed.
Aust Dig Environment and Planning [601]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine
Respondent: No Appearance
Solicitors:
Appellant: Shaun McElwaine & Associates
Respondent: Nil
Judgment Number: [2011] TASSC 5
Number of paragraphs: 35
Serial No 5/2011
File No 803/2010
DOOR OF HOPE CHRISTIAN CHURCH INC
v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
REASONS FOR JUDGMENT BLOW J
24 February 2011
This case concerns the impact of the Nation Building and Jobs Plan Facilitation (Tasmania) Act 2009 ("the 2009 Act") on the ability of the Resource Management and Planning Appeal Tribunal ("the tribunal") to enforce compliance with planning schemes. Under the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s64(3)(c), the tribunal has the power to make an order requiring a respondent to refrain from activity that involves a contravention of a planning scheme, and thus a contravention of s63(2)(a) of that Act. However the 2009 Act, s6(1)(a), contains a provision that results, in certain circumstances, in neither the LUPA Act nor any planning scheme applying to a particular project.
The appellant, Door of Hope Christian Church Inc, made a proposal to have a social housing project in relation to certain land in Launceston certified as an "NPA project" under the 2009 Act. NPA stands for "National Partnership Agreement". The Director of Housing was a "Project Authority" under the 2009 Act. He certified the appellant's project to be an NPA project, and construction work commenced. It appears from the material before me that the appellant engaged Mark Webb Building Services Pty Ltd ("the contractor") as its builder. The documentation for the project included a traffic management plan.
On 15 July 2010 a firm of lawyers made an application to the tribunal for orders under the LUPA Act, s64, on behalf of clients named Gilpin. They sought orders restraining the contractor, the appellant, and their servants and agents from "breaching the traffic management plan" for the project.
The course of the proceedings before the tribunal can be summarised as follows:
· On 21 July 2010, the chairman of the tribunal issued a summons addressed to the appellant, notifying it that a directions hearing would be held on 28 July 2010. I assume a similar summons was issued to the contractor.
· On 22 July 2010, the tribunal purported to make a temporary order pursuant to the LUPA Act, s64(6), restraining the contractor, the appellant, and their servants and agents, from breaching the traffic management plan, until further order of the tribunal or the final disposition of the proceedings.
· At or about the time of the directions hearing, it became apparent that there was a dispute as to whether the tribunal had jurisdiction. The appellant was contending that, because of the operation of the 2009 Act, s6(1)(a), the LUPA Act did not apply to its project; that the tribunal therefore had no jurisdiction; and that the Gilpins' application should be dismissed. The solicitors for the Gilpins contended that there was jurisdiction and that a permanent order should be made under s64. The tribunal decided to determine the question as to its jurisdiction as a preliminary point.
· Written submissions were made to the tribunal.
· On 2 September 2010, the tribunal, constituted by its chairman, Mr S Cooper, delivered a written decision to the effect that it was not persuaded that it lacked jurisdiction, and declined to dismiss the s64 application. It stopped short of deciding whether it did have jurisdiction.
· The tribunal has not made any further order discharging its temporary order or otherwise.
The appellant has filed a notice of appeal from the decision of 2 September 2010. The tribunal, as the respondent to the appeal, has not taken any part in these proceedings, and it does not appear to have filed a notice of submission under the Supreme Court Rules 2000, r777G, either. Counsel for the Gilpins appeared at the beginning of the hearing, told me that his clients did not wish to take any part in it, and obtained leave to withdraw.
The effect of the 2009 Act
The National Partnership Agreement is set out in Sch3 to the 2009 Act. The agreement's stated purpose is to address the implications of the global economic recession for Australia. Under cl 10, Tasmania accepted an obligation to implement the agreement. In particular, it undertook an obligation to undertake a social housing project for Tasmania, in accordance with SchC to the agreement.
Section 5 provides that the Treasurer, by notice in the Gazette, may declare a project to be an NPA project if satisfied of certain things. The tribunal noted that it was common ground that such a declaration was made in relation to the project in question.
The effect of such a declaration is covered by s6, which begins as follows:
"(1) If a project is declared to be an NPA project under section 5, then —
(a)subject to section 13, neither the Planning Act nor any planning scheme applies to the project …".
The expression "Planning Act" is defined in s3(1) to mean the LUPA Act.
Section 12(1) provides for the "Project Authority" – in this case the Director of Housing – to "certify an NPA project" if satisfied of certain things. The tribunal noted that it was common ground that the Director of Housing certified the project on 7 April 2010.
The effect of a s12 certification is spelt out in s13, which reads as follows:
"(1) This section applies once an NPA Project has been certified under section 12.
(2) Construction works may be undertaken in accordance with the certification.
(3) If the relevant planning scheme does not require amendment pursuant to section 14 then —
(a)despite section 6(1)(a), the Planning Act applies to the relevant use or development; and
(b)if the relevant use or development would, but for section 6(1)(a), be a use or development that, under a planning scheme applying to the site, is permitted only if a planning permit is granted, the certification is taken to be a planning permit authorising that use or development in accordance with the certification.
(4) If the relevant planning scheme does require amendment under section 14, then, once those amendments have been made —
(a)despite section 6(1)(a), the Planning Act applies to the relevant use or development; and
(b)if the relevant use or development would, but for section 6(1)(a), be a use or development that, under a planning scheme applying to the site, is prohibited, or permitted only if a planning permit is granted, the certification is taken to be a planning permit authorising that use or development in accordance with the certification."
In s14, provision is made for the amendment of planning schemes, not in the usual way, but by the "Planning Minister". That term is defined in s3(1) to mean "the Minister administering the Planning Act", ie the LUPA Act. Section 14 reads as follows:
"(1) As soon as practicable after an NPA project has been certified under section 12, the Planning Minister must —
(a)consult the local council to determine if the relevant planning scheme requires amendment consequent on the certification; and
(b)if applicable, amend the relevant planning scheme to the necessary extent.
(2) For subsection (1), the necessary extent is that which enables the relevant use or development for the project to be lawfully undertaken on the site (after section 13 applies to it) in accordance with the permit taken to have been granted for the project pursuant to that section.
(3) The Planning Act does not apply to the amendment of a planning scheme under subsection (1).
(4) However, nothing in this section is to be taken to prevent the further amendment, under the Planning Act, of a planning scheme after the completion of the NPA project.
(5) The Planning Minister, on amending a planning scheme pursuant to this section, is to give such public and other notice of the amendment as that Minister considers necessary or expedient in the circumstances.
(6) However, if the regulations prescribe any specific notification requirements for subsection (5), the Planning Minister is to comply with those requirements."
In the proceedings before the tribunal, it was common ground that the site of the appellant's project was within the area covered by the Launceston Planning Scheme 1996, and that that planning scheme had not been amended pursuant to s14(1)(b) as a result of the project having been certified. It was also common ground that, unless the 2009 Act made it lawful, the appellant's project was one that was prohibited by the planning scheme.
The 2009 Act did not expressly state what was meant when it referred to a planning scheme requiring amendment. However I think it is absolutely clear that the scheme of the Act was as follows:
· Upon a project being declared to be an NPA project, the LUPA Act and any planning scheme applicable to the project site ceased to apply to the project: s6(1)(a).
· If the project was prohibited by the terms of the planning scheme, or somehow inconsistent with it, the planning scheme required amendment.
· If that were the situation, the "Planning Minister", by s14(1)(b), was empowered and required to amend the planning scheme to the extent necessary to remove the prohibition or inconsistency.
· Once the planning scheme was amended pursuant to s14(1)(b), then the applicability of the LUPA Act was revived by s13(4)(a) and, by necessary implication, the applicability of the planning scheme was also revived.
· If the project was prohibited by the terms of the planning scheme or inconsistent with it, the planning scheme remained inapplicable until such time as it was amended pursuant to s14(1)(b).
The correctness of this analysis is confirmed by comments made in the relevant second reading speech by the Minister for Education and Skills, Mr Bartlett, who said the following (House of Assembly, 26 March 2009):
"The Tasmanian Government has a significant role to play in ensuring the delivery of the stimulus package. The Prime Minister has made it very clear that the building program must begin immediately to ensure the fastest possible delivery of the stimulus to the national and State economies.
There are a number of factors that have the potential to delay the social housing and school infrastructure projects, however it is the planning and approval process that is most likely to result in the Commonwealth's time frames not being met. It is for this reason that I am introducing a bill into the House today that will remove the application of the Land Use Planning and Approvals Act 1993 to these projects.
As the House is no doubt aware, average approval times in Tasmania are below the national average and well below the time frames prescribed in the Land Use Planning and Approvals Act. However, even with our relatively short time frames we will not be able to meet the Commonwealth's tight deadlines. Further, the dramatically increased volume of development across the State - particularly in the context of a substantial planned increase next year in the State's own capital program, a shortage of planners, local government involvement in water and sewerage reform and councils progressing their own regional and local community infrastructure projects - is likely to stretch time frames well beyond acceptable limits.
The effect of this bill is to exempt certain projects that are in furtherance of the Nation Building and Jobs Plan from the requirements of the Land Use Planning and Approvals Act. The bill will only apply to relevant social housing and school infrastructure projects, or other projects as prescribed by regulation, and the bill will expire in 2012 once the Nation Building Plan has been fully implemented.
Instead of the projects to which the bill relates being dealt with pursuant to the provisions of the Land Use Planning and Approvals Act, the bill requires that they be subject to an alternative streamlined process. This process balances the need to commence the projects within extremely short time frames, with the need to ensure that the views of local councils and of the public, and good planning principles, are considered in finalising the project design.
…
The purpose of this legislation is very specific: it removes hurdles presented by the statutory planning process that will prevent the construction of certain projects commencing within the tight time frames required by the Commonwealth. The legislation does not, however, seek to exempt those projects from the planning system for evermore.
Once a project is certified, the bill sets out mechanisms by which the project is once again governed by the Land Use Planning and Approvals Act. Where the planning scheme that would have applied to the project does not require amendment then, upon certification, the Land Use Planning and Approvals Act automatically applies to the use and development. However, where the planning scheme that would have applied to the project provides that the use and development pertaining to the project is only permitted if a planning permit is granted, then the Land Use Planning and Approvals Act applies, and the certification is taken to be a planning permit authorising the use and development.
Finally, where the planning scheme that would have applied requires amendment for the use and development to proceed, then the Land Use Planning and Approvals Act applies once those amendments are made, and the certification then acts as a planning permit authorising the use and development."
The reasoning of the tribunal
At par[11] of its reasons, the tribunal expressed the view that the 2009 Act did not operate so as to overcome the prohibition contained in the planning scheme. The tribunal commenced its explanation for that conclusion with the following:
"It does not so operate because an essential pre-condition to the Act's engagement, namely the necessary (in this case) amendment of the planning scheme has not occurred. That the Scheme has not been so amended is common ground. Significant consequences flow from this failure to amend."
After setting out s13, and referring to the obligation upon the Minister to make the necessary amendment pursuant to s14(1)(b), the tribunal continued:
"As has already been noted the Scheme has not been amended to that extent or at all. Thus in the absence of an amendment to the Launceston Planning Scheme this proposal is prohibited. No permit could issue for it at least as the scheme presently stands. It is also clear that section 13 creates two (2) discrete categories of certified NPA projects: those that do not require scheme amendment (section 13 (3)) and those that do (section 13 (4)). It is also clear from the use of the phrase 'once those amendments have been made' that unless and until the necessary amendments are in fact made by the Minister the project does not have the necessary statutory approval to proceed.
14 The conclusion from all this is that it seems to the Tribunal that the failure on the part of the Minister to have amended the planning scheme is fatal to the approval."
The tribunal was wrong about the project not having the necessary statutory approval to proceed. The only necessary statutory approval was certification under s12. The project had that certification. Therefore, by virtue of s13(2), construction works were permitted to be undertaken. The 2009 Act did not make any necessary ministerial amendment of a planning scheme a prerequisite to the undertaking of construction works.
It is true that s14(1)(b) not only required the Minister to amend the planning scheme, but also required the Minister to do that as soon as practicable. The effect of a delay, to such an extent that the temporal requirement imposed by s14(1) was not complied with, must depend on the intention of Parliament at the time the legislation was enacted: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Given the structure and purpose of the legislation, it clearly cannot have been the intention of Parliament that ministerial inertia would, after the expiry of an undefined but practicable length of time, result in certification under s12 becoming invalid, construction work having to stop, and the LUPA Act and any applicable planning scheme coming back into force.
The tribunal then went on to reason that lack of a ministerial amendment to the planning scheme meant that the traffic management plan had not taken on the status of a permit condition, and that a breach of the traffic management plan could therefore not be relied upon as the basis of an application under the LUPA Act, s64. The tribunal was correct about that.
However the tribunal continued as follows:
"But it [the failure of the Minister to amend the planning scheme] is not necessarily fatal to this application (or perhaps more accurately an application of this type) since it appears to be at least arguable that no lawful approval of any type exists in respect of the proposal. That in turn would seem to leave open the question whether there is a breach of Part IV of the Land Use Act. For this reason, and because the Tribunal is not persuaded that an amendment to the Launceston Planning Scheme is a necessary pre-condition to exercising jurisdiction with respect to the matter generally the Tribunal declines to dismiss the application."
In these final sentences, the tribunal made two errors:
· It repeated its error as to the project not having the necessary statutory approval for work to be undertaken. It had lawful approval by way of certification under s12, with the result that s13(2) authorised construction work.
· It overlooked the fact that, as a result of the project having been declared to be an NPA project under s5, the LUPA Act was inapplicable as a result of the operation of s6(1)(a).
Because the LUPA Act did not apply to the project, the tribunal had no jurisdiction. It was therefore obliged to dismiss the s64 application.
Is there a right of appeal?
Rights of appeal from decisions of the tribunal to this Court are conferred by the LUPA Act, s65, and by the Resource Management and Planning Appeal Tribunal Act 1993, ("the RMPAT Act"), s25. Counsel for the appellant submitted that both of those provisions empowered this Court to hear and determine this appeal.
The LUPA Act, s65(1), reads as follows:
"(1) Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against —
(a)an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 64; or
(b)a decision by the Appeal Tribunal not to make an order under that section."
It is significant that the impugned decision was not a decision to exercise any of the powers conferred by s64. It was a decision not to dismiss an application for an order under s64(3). In my view s65(1)(a) does not apply because the impugned decision did not involve the making of an order of a type authorised by s64.
Section 65(1)(b) appears to be directed to the sort of situation where the tribunal is asked to exercise a power conferred by s64, and decides not to do so. However the impugned decision did not involve the tribunal deciding not to exercise one of the powers conferred by s64. It decided not to decide, at that stage, whether or not it could make an order under that section. I therefore do not think that s65(1)(b) confers a right of appeal from the impugned decision either.
Section 64(11) provides that, for the purposes of the RMPAT Act, "an application under this section is deemed to be an appeal". Counsel for the appellant submitted that, as a result, the RMPAT Act, s25(1), applies to proceedings under the LUPA Act, s64. Section 25(1) reads as follows:
"(1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal."
Counsel submitted that the impugned decision was a decision "in the appeal", within the meaning of s25(1), and that the appeal was therefore competent. However he was obliged to refer me to a case which contradicts parts of his argument: State of Tasmania v Latham [1999] TASSC 148.
That case concerned two interlocutory "decisions" made by the tribunal in relation to an application under the LUPA Act, s64. By its first decision, the tribunal determined that the premises in question came within the definition of a "welfare institution" within the meaning of the applicable planning scheme, and that the use of them without a permit constituted a contravention of the LUPA Act. By its second decision, the tribunal adjourned the proceedings to enable the State to apply for the required permit. Cox CJ held, at par[4], that he had no jurisdiction under s65 because the tribunal had neither made an order in the exercise of the jurisdiction conferred by s64, nor decided not to make such an order. That conclusion was clearly correct. His Honour went on to hold that, despite s64(11) deeming a s64 application to be an appeal for the purposes of the RMPAT Act, Parliament did not intend s25 of that Act to confer a right of appeal in relation to proceedings under the LUPA Act, s64. He also held that, even if s25 did apply to s64 proceedings, neither of the two "decisions" constituted a "decision of the Appeal Tribunal in the appeal".
The RMPAT Act and the LUPA Act were enacted during the same parliamentary session. They received the Royal Assent on the same day. They were part of a group of interconnected statutes that were enacted to replace the Local Government Act 1962. There are some similarities and some differences in relation to their provisions for appeals from the tribunal to this Court:
· Under the LUPA Act, s65(2), an appeal under that section must be instituted within 30 days of the date of the relevant decision. Under the RMPAT Act, s25(2)(a), there is a time limit of 28 days after the making of the decision.
· An appeal under the RMPAT Act, s25, may be instituted only on a question of law. There is no such restriction in the LUPA Act, s65.
· In their original form, the two Acts contained substantially identical provisions in relation to the costs of proceedings before the tribunal: RMPAT Act, s28; LUPA Act, s64(12) to (15). However many of the procedural provisions in the RMPAT Act relating to appeals were not repeated in the LUPA Act.
The RMPAT Act established a general regime for appeals from decisions of the tribunal. The LUPA Act, s65, established a special regime for appeals from decisions in proceedings under s64 of that Act. It is necessary to decide whether, by implication, the enactment of s65 was intended to preclude aggrieved parties from instituting appeals under the RMPAT Act's regime in relation to decisions in s64 proceedings. Cox CJ concluded in State of Tasmania v Latham, at par[5], that Parliament intended that s65 "should exhaustively govern the subject matter of the right to appeal and the time within which to do so". His Honour referred to a number of cases that supported that conclusion: Refrigerated Express Lines (A/Aasia) Pty Ltd v Australian Meat and Live-stock Corporation (1980) 29 ALR 333, per Deane J, at 347; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Grofam Pty Ltd v ANZ Banking Group Ltd (1993) 117 ALR 669; Saraswati v R (1991) 172 CLR 1.
I agree with his Honour's conclusion. In my view the enactment of s65, establishing a separate appeal regime from that established by the RMPAT Act, indicates that Parliament intended the general appeal regime under the RMPAT Act not to be available in relation to s64 cases. If the appeal regime under the RMPAT Act had been made available in relation to s64 cases, there would have been very little need for it. Under s65, appeals can be instituted not just in relation to the making or refusal of final orders under s64, but also in relation to the making and refusal of temporary orders in the exercise of the jurisdiction conferred by that section. It would only be in a very narrow class of cases, perhaps including cases about a refusal to dismiss proceedings for want of jurisdiction, that the additional availability of a right of appeal under the RMPAT Act might ever have served any useful purpose. However, challenges to interlocutory determinations can result in the undesirable fragmentation of proceedings. Because of that, an interpretation resulting in the availability of the parallel appeal regime may be seen as one that does not promote the purpose or object of the legislation: Acts Interpretation Act 1931, s8A.
For these reasons, I conclude that the appellant did not have a right to appeal from the impugned decision. The appeal must therefore be dismissed as incompetent.
Conclusion
It is crystal clear that the tribunal had no jurisdiction in this matter. The purported temporary order of 22 July 2010 is a nullity. I was told that the appellant had been ignoring it. That course was entirely appropriate, though there may be no excuse for ignoring the traffic management plan. The appellant had the right to appeal from the temporary order, but it did not do so. It had the right to litigate the question of the tribunal's jurisdiction by making an application under the Judicial Review Act 2000, s18, but it did not do so. It purported to appeal from a decision of the tribunal not to reach a conclusion about its own jurisdiction, or lack thereof. There was no statutory right of appeal from that "decision".
The appeal is therefore dismissed as incompetent.
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