Dorset Council v Krushka Pty Ltd
[1999] TASSC 69
•17 June 1999
[1999] TASSC 69
CITATION: Dorset Council v Krushka Pty Ltd [1999] TASSC 69
PARTIES: DORSET COUNCIL
v
D P & L J KRUSHKA PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 7/1998
DELIVERED ON: 17 June 1999
DELIVERED AT: Launceston
HEARING DATES: 21 April 1999
JUDGMENT OF: Crawford J
CATCHWORDS:
Local Government - Town planning - Consent and approval of Councils (development and like applications) - Consents, approvals or permits - Modification, revocation or review - Whether power to alter conditions of planning permit - Whether necessary to apply for new permit - Terms of original permit settled by agreement - Prohibition on applications for a permit in respect of a use or development substantially the same as that determined on an appeal within previous two years, without leave of Tribunal.
Land Use Planning and Approvals Act 1993 (Tas), s62(2).
R v Berri District Council; ex parte H L Clark (Berri) Pty Ltd (1984) 52 LGRA 137; Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257, referred to.
Aust Dig Local Government [250]
Local Government - Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Appeal under Land Use Planning and Approvals Act 1993 from refusal of developer's application to planning authority - Power of Tribunal to make an order excusing a failure to comply with a requirement of the law affecting the appeal or purported appeal - Whether power extends to excusing failure which affects the application and decision from which the appeal was brought.
Resource Management and Planning Appeal Tribunal Act1993 (Tas), ss22(2), 23(6).
Campbell v Brighton Council (1995) 4 Tas R 430, referred to.
Aust Dig Local Government [299]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine
Respondent: D R Armstrong
Solicitors:
Appellant: S B McElwaine
Respondent: Ogilvie McKenna
Judgment ID Number: [1999] TASSC 69
Number of paragraphs: 35
Serial No LCA 7/1998
File No 69/1999
DORSET COUNCIL v D P & L J KRUSHKA PTY LTD
REASONS FOR JUDGMENT CRAWFORD J
17 June 1999
By a permit dated 28 March 1996 issued pursuant to the Land Use Planning and Approvals Act 1993, s57, the appellant Council granted the respondent company permission for the land known as 35 Main Street, Bridport to be used for the purposes of erecting 16 holiday cabins and to have the development carried out in accordance with submitted plans, subject to a number of conditions. The use and development of land was controlled by the provisions of the Scottsdale Municipal Planning Scheme 1985 and the land was zoned "resort residential". The proposed class of use was classified in the Scheme as holiday cabin/units and the Council had a discretion whether or not to grant the permit.
Pursuant to the Land Use Planning and Approvals Act 1993, s61(4), the respondent appealed against the decision of the Council. The appeal attacked a number of conditions to which the permit was expressed to be subject. At a conference under the Resource Management and Planning Appeal Tribunal Act 1993, s17, the parties agreed to resolve the appeal by consent. Their agreement was reduced to writing and signed and given to the Resource Management and Planning Appeal Tribunal ("the Tribunal"). On 7 May 1996 the Tribunal published reasons for deciding that a decision in the agreed terms would be within its powers and that it was appropriate to make a decision in those terms and it made a decision, in accordance with those terms, without holding a hearing. See s17(2). It decided that the Council's decision to grant the permit be varied in a number of respects, all of which concerned conditions to which the original permission had been made subject. Only three of the conditions are relevant to the appeal before the Court. The Tribunal's decision was expressed as being that the decision of the Council appealed against be varied by deleting some of the original conditions and by substituting new conditions for some of them. The Tribunal also directed that all of the conditions be renumbered as necessary to provide sequential numbering.
What had been condition 15 in the Council's original permit dated 28 March 1996, remained unaffected by the appeal to the Tribunal. It remained as condition 15 in the new permit which was issued by the Council on 10 May 1996, as a result of the Tribunal's decision concerning the appeal. Condition 15 was, and remained, in the following terms:
"15Water, sewerage and drainage services must be designed, provided and maintained to the satisfaction of Council."
Condition 20 of the Council's original permit provided that vehicles might only enter and exit the site via Main Street, Bridport at a location to the satisfaction of Council. As a consequence of the appeal, that condition was altered and became condition 17 in the following terms:
"17Vehicles may only enter and exit the site via Main Street, Bridport at a point midway along the existing parking bay."
Condition 23 of the original permit issued by the Council was that the owner was to negotiate an agreement with the Council for the use of parking bays in Main Street as an entrance/exit (that is to say, a crossover) to the complex, the location of the entrance/exit and the provision of services which affected the development. As a result of the appeal that condition was deleted and in substitution for it a new condition 18 was inserted as follows:
"18The owner is to compensate Council for the loss of Main Street parking bays by construction of kerb and gutter, road pavement, stormwater drainage and nature strip construction along the Elizabeth Street boundary of the property to function" [junction?] "works at Frances Street to Council standards and Council engineer approval."
It can be seen from condition 17 that there was to be only one entrance to the complex, that being an entrance from Main Street. The provision of such an entrance would remove street parking bays from public availability. Designed to provide compensation for that was condition 18, under which the respondent was to construct kerb and gutter, road pavement, stormwater drainage and a nature strip along the Elizabeth Street frontage of the complex to meet similar construction works at the intersection of Elizabeth Street and Frances Street, the new work to accord with Council standards and be approved by the Council engineer.
Construction of the complex proceeded and on or about 22 November 1996 it was officially opened for business. However, there were outstanding matters.
On 8 October 1996 the solicitors for the respondent wrote to the Council's general manager concerning condition 18. They said that the respondent only agreed to condition 18 as a result of a discussion between the Council's engineer and Mr Krushka, on behalf of the respondent, during which the engineer told Mr Krushka that it would cost between $2,000 and $3,000 to comply with the condition. The solicitors said that the respondent had received from the Council a plan showing very extensive works to be carried out in Elizabeth Street, purportedly being the works envisaged in condition 18, and that an estimate of the cost of carrying out those works was $19,064. They maintained that the respondent would not have entered into the consent agreement with respect to the planning appeal, if it had not been for the engineer's advice that the cost of the works would be between $2,000 and $3,000, and that the advice was either negligent or constituted misleading or deceptive conduct under the Fair Trading Act 1990. They said that the respondent did not wish to enter into litigation in relation to the matter, but would do so if necessary. To settle the matter, the respondent offered to pay the Council $3,000 in full and final satisfaction of the requirements of condition 18. The Council's solicitor replied on 16 October 1996 advising that the Council and the engineer denied that any such representation was made and asserting that there was no basis for the respondent to avoid its obligations under condition 18.
In August 1997 the Council demanded (inter alia) that the respondent complete the construction of the Elizabeth Street works in accordance with certain of the conditions of the permit, but the respondent did not do so. On 29 October 1997 the Council applied to the Tribunal for an order pursuant to the Land Use Planning and Approvals Act 1993, s64, and as a consequence on 7 November 1997 the Tribunal issued a summons to the respondent calling on it, pursuant to s64(2), "to show cause why an order should not be made pursuant to section 64 requiring it to comply with conditions 15, 17 and 18 of the permit dated 28 March 1996 as modified pursuant to the decision of the Tribunal J108/96 dated 7 May 1996 within 14 days or such further time as is determined by the Tribunal and in default of compliance restraining it, its servants or agents, from using the land the subject of the permit for the purposes of holiday cabins and or accommodation until such time as conditions 15, 17 and 18 have been complied with".
While the hearing of that summons was pending, the respondent made an application to the Council on the Council's form of Application for Planning Permit, dated 12 January 1998. By it the respondent sought to have conditions 15, 17 and 18 varied. It sought to have the following words added to condition 15:
"Stormwater discharge from the property shall be via the ornamental pool at the lower part of the property. From that point, it shall discharge into an open drain adjacent to the Council reserve to the south. This open drain shall be upgraded by the Developer to a trapezoidal shape, of smooth line and grade, and shall be certified by the Developer's Engineer to be able to adequately cope with any discharge from the site."
By the application the respondent further sought to have condition 17 deleted and the following substituted:
"17The existing vehicular entrance off Main Street, Bridport may be retained for use solely by the occupants of the caretaker's residence on the site and shall not be used for access to the remainder of the Resort. All access to the Resort proper shall be via the new access road off Main Street at the approved point."
The respondent also sought to have condition 18 deleted.
The Council refused the application, determining in effect that the planning permit of 10 May 1996 should stand, having been issued on terms which were negotiated and then agreed upon by the respondent and the Council. The Council considered that the conditions of the permit ought therefore be regarded as reasonable and fair in the circumstances and it also considered that the requested variations would not enhance the amenity of the property and the surrounding area.
By a notice of appeal dated 9 February 1998 the respondent appealed to the Resource Management and Planning Appeal Tribunal from the decision of the Council. The Council had expressed its decision as a refusal to grant a permit and the appeal was expressed to be from a refusal to grant a permit. The grounds of the appeal, as expressed in the notice of appeal were two in number and brief. The first was that the grounds of refusal stated by the Council were insufficient to justify its decision and the second was that in all of the circumstances, the three conditions ought to have been amended as requested.
On 17 February 1998 the Tribunal conducted a hearing, at the same time, of both the respondent's appeal and the s64 summons to show cause which was issued on the Council's application. The Resource Management and Planning Appeal Tribunal Act 1993, s22(3), authorised the Tribunal, on the hearing of an appeal, if certain circumstances existed, to order that an application to the Council be amended. The respondent applied to the Tribunal to make such an order, so that its application to the Council of January 1998 would read:
"A permit is sought for the development and use of a holiday unit complex identical to that currently existing on the site, subject to the conditions as detailed in the amended permit relating to the site dated the 10th day of May 1996, with the exception that condition 18 is deleted and the following is added to condition 15:
'Stormwater discharge from the property shall be via the ornamental pool at the lower part of the property. From that point, it shall discharge into an open drain adjacent to the Council reserve to the south. This open drain shall be upgraded by the developer to a trapezoidal shape, of smooth line and grade, and shall be certified by the developer's engineer to be able to adequately cope with any discharge from the site.'"
The Council opposed the making of an amending order.
The Tribunal's reasoning concerning the respondent's appeal from the Council's refusal of its January 1998 application (in its reasons it referred to the application as "the 1997 application" and as having been made in December, 1997), and the results of that appeal, were as follows:
1 The Tribunal accepted as good law that if its decision of 7 May 1996 resulted from a bargain or real agreement between the parties, then it had no jurisdiction to re-visit that decision. Sky-Ridge Pty Ltd v Burlington Pty Ltd (1995) 4 Tas R 485. The Tribunal found that "there was an agreement between the parties".
2 The Tribunal held that except for what is provided by the Land Use Planning and Approvals Act 1993, s62(2), there is no impediment in that Act to a number of different applications for planning approval being made in respect of the same property and a number of different permits being granted in respect of those applications, and appeals against those permits, for example against conditions of permits, being brought by those applicants to the Tribunal.
3 However, the Land Use Planning and Approvals Act 1993, s62(2), provides that where the Tribunal has determined an appeal, an application for a permit in respect of a use or development which is substantially the same as the use or development to which the appeal related may not, without the leave of the Tribunal, be made within a period of two years from the date on which the Tribunal made its decision. The Tribunal held that the respondent's application to the Council, in January 1998, was for a development substantially the same as the development approved by the Tribunal in May 1996.
4 By the Resource Management and Planning Appeal Tribunal Act 1993, s22(2), it is provided:
"(2) Where a person appeals, or purports to appeal, to the Appeal Tribunal and it appears to the Appeal Tribunal that —
(a)a failure to comply with a requirement of this Act or of another Act or law affects the appeal or purported appeal; and
(b)it would not be unjust or inequitable to exercise the powers conferred by this subsection —
the Appeal Tribunal may excuse the failure by ordering that, subject to such conditions as may be determined by the Appeal Tribunal, the requirement be dispensed with to the necessary extent."
The Tribunal held that s62(2) "imposes a positive obligation upon a person seeking to appeal [sic] within 2 years of a relevant Tribunal decision, that leave pursuant to Section 62(2) be obtained"; that in this case the respondent failed to discharge that positive obligation; that the failure to obtain leave affected whether there was a valid application to the Council and therefore a decision of the Council upon which an appeal might be brought; that as a consequence, the failure to obtain leave affected the appeal; that it was therefore a case to which s22(2)(a) extended. The Tribunal was plainly in error when it referred to the "positive obligation" being upon a person "seeking to appeal". No doubt it meant to say that the positive obligation was upon a person seeking to apply for a permit in respect of a use or development which is substantially the same as the use or development to which an appeal decision, in the previous two years, related.
5 Having satisfied itself that the appeal fell within s22(2)(a), the Tribunal considered, under s22(2)(b), whether it would not be unjust or inequitable to exercise the powers conferred by the subsection. It referred to circumstances of the case and concluded that it was just and equitable to grant relief under s22(2) and dispense with the requirement for compliance with the provisions of the Land Use Planning and Approvals Act 1993, s62(2), on condition that the Council's costs of the appeal up to and including the hearing on 17 February 1998, be paid by the respondent.
6 The Tribunal then determined that, in all the circumstances of the case, it was appropriate to allow the amendment to the respondent's application to the Council which had been sought by the respondent. It ordered accordingly, that is to say it ordered that the respondent's application to the Council, which the Tribunal referred to as the 1997 application but which I believe was made to the Council in January 1998, and from which the appeal had been brought, be amended into the terms sought, they being:
"A permit is sought for the development and use of a holiday unit complex identical to that currently existing on the site, subject to the conditions as detailed in the amended permit relating to the site dated the 10th day of May 1996, with the exception that condition 18 is deleted and the following is added to condition 15:
'Stormwater discharge from the property shall be via the ornamental pool at the lower part of the property. From that point, it shall discharge into an open drain adjacent to the Council reserve to the south. This open drain shall be upgraded by the developer to a trapezoidal shape, of smooth line and grade, and shall be certified by the developer's engineer to be able to adequately cope with any discharge from the site.'"
7 It is clear from its reasons that the Tribunal immediately forgot about the terms of the amendment it had just allowed, for it proceeded to deal with the matter as if it concerned an appeal from a refusal of an application to vary or delete conditions of the May 1996 permit, whereas it should have dealt with the matter as an appeal based on an application for a permit in the terms of the amendment, that is to say a new permit for the development and use of a holiday unit complex identical to the one existing on the site, subject to the same conditions contained in the 1996 permit with the exception that condition 18 be deleted and words be added to condition 15. The Tribunal gave no consideration to whether a new permit should be granted. It merely considered whether condition 18 should be deleted, whether the words should be added to condition 15 and then, arguably inappropriately, considered whether condition 17 should remain. Having considered conditions 15, 17 and 18, the Tribunal expressed its determination of the respondent's appeal in the following terms:
"The Tribunal therefore determines respondent's appeal 30/98 P as follows:
1 Condition 15 is varied by adding to the existing condition the following words:
'Stormwater discharge from the property shall be via the ornamental pool at the lower part of the property. From that point, it shall discharge into an open drain adjacent to the Council reserve to the south. This open drain shall be constructed by the developer to have a concrete invert, of a design and extent approved by Council's engineer; and shall have grassed banks at a slope of 1 to 5.'
2Condition 18 is deleted.
3The appeal against condition 17 is dismissed."
If the Tribunal was treating the case as an appeal based on an application to the Council for the grant of a new permit, it might instead have exercised the powers given by the Land Use Planning and Approvals Act 1993, s62(1)(c)(ii), directed the Council to grant the permit and directed that the permit must contain the conditions of the 1996 permit with condition 18 deleted and the extra words inserted in condition 15.
The Tribunal then turned to the summons to show cause which it had issued under the Land Use Planning and Approvals Act 1993, s64, on the application of the Council. Having regard to its intended disposition of the appeal, the Tribunal expressed the following order:
"The Tribunal orders that the respondent is to comply with condition 15 as above amended, and condition 17, of the permit dated the 28th of March 1996 as modified by the decision of the Tribunal J 108/96 and dated 7th of May 1996, within a period of three (3) months from the date of this order."
The Council has appealed to the Court from much of what was determined and ordered by the Tribunal. So far as concerns the outcome of the respondent's appeal to the Tribunal from the Council's refusal to grant the respondent's application, it has appealed under the Resource Management and Planning Appeal Tribunal Act 1993, s25(1), which permits a party to an appeal before the Tribunal to appeal to this Court, on a question of law. So far as concerns the outcome of the summons to the respondent to show cause, which was issued upon the Council's application under the Land Use Planning and Approvals Act 1993, s64, it has appealed under s65 of that Act. The right to bring that appeal is not restricted to a question of law. I will first deal with the appeal under the Resource Management and Planning Appeal Tribunal Act 1993, s25(1).
It is necessary to consider the effect of the processes which took place in 1996 and of the permit obtained by the respondent following the determination by the Tribunal of the appeal in May 1996. The effect of the Land Use Planning and Approvals Act 1993, s62(2), was that because on 7 May 1996 the Tribunal determined the appeal brought to it by the respondent against the Council's decision which was made in March 1996, another application for a permit in respect of a use or development which was substantially the same as the use or development to which that appeal related, was not permitted to be made within a period of two years from the date on which the Tribunal made its decision, without the leave of the Tribunal. It can be seen therefore, that unless the respondent obtained the leave of the Tribunal, it was not entitled, before 7 May 1998, to apply to the Council for a permit in the terms into which it sought to amend its application to the Council at the hearing before the Tribunal on 17 February 1998. By that amendment, if allowed, the respondent sought the grant of a permit for the same use and development to which the 1996 appeal related. The fact that the respondent sought to have two different conditions on the permit it was seeking, would not have changed that. However, the prohibition of s62(2) only extends to "an application for a permit" within the two year period, and not to an application to vary the conditions of a permit, which was the nature of the application to the Council when made by the respondent in January 1998, the refusal of which was the basis of the respondent's appeal to the Tribunal which was instituted by the notice of appeal of 9 February 1998.
The next question which arises concerns the extent to which a party may apply to vary a permit which has been granted. Perusal of the Land Use Planning and Approvals Act 1993 and the Resource Management and Planning Appeal Tribunal Act 1993 reveals that the opportunities are limited. Section 55 of the former Act authorises a planning authority (that is, a municipal council) to correct a clerical mistake, or an error arising from any accidental slip or omission, or an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing or property referred to in a permit. No question concerning the exercise of that authority arises in this case. Section 56 authorises the making of what the section heading refers to as minor amendments of permits. By subs(1), the owner of land, or a person with the consent of the owner, may request a planning authority to amend a permit. By subs(2), the planning authority may do so, if it is satisfied that the amendment will not cause an increase in detriment to any person (par(b)), does not change the use or development for which the permit was issued other than a minor change to the description of the use or development (par(c)) and does not change the effect of any condition required by the Appeal Tribunal (par(a)). That last prohibition, of par(a), only applies to conditions required by the Tribunal and not to conditions which, say, were imposed by a planning authority and concerning which there was no appeal to the Tribunal. There is no provision for a request to be made to the Tribunal to amend a condition required by it. A right of appeal to the Tribunal from an amendment made by a planning authority under s56 is given to certain persons by s61(3A). However, perhaps surprisingly, there is no right of appeal from a planning authority's refusal to amend.
By its application to the Council in January 1998, the respondent applied to have words added to condition 15 of its permit. Condition 15 was originally imposed by the Council in its decision and permit of March 1996. The respondent's appeal to the Tribunal, which was determined in May 1996, did not attack condition 15 and the Tribunal's decision of 7 May 1996 did not affect that condition either. It is arguable therefore that s56(2)(a) did not prevent the Council from amending condition 15. However, the respondent had no right of appeal to the Tribunal from the Council's refusal to amend it. By its application to the Council in January 1998, the respondent further applied to have condition 17 deleted and replaced with a new condition. Condition 17 was one which was required by the Tribunal when it made its decision in May 1996. It followed therefore that the Council had no power to amend the permit so far as the amendment affected condition 17. There could not be an appeal to the Tribunal from a refusal of the Council to amend condition 17 both because no appeal lies from a planning authority's refusal to amend and because the Council had no power to make the amendment in the first place. By its application to the Council in January 1998, the respondent also applied to have condition 18 deleted. That condition was a requirement of the Tribunal in its decision of May 1996. As with condition 17, s56(2)(a) prohibited the Council from making an amendment which affected condition 18 and similarly, refusal of the Council to make it could not be made the subject of an appeal to the Tribunal. It follows that the respondent's appeal to the Tribunal from the Council's decision not to alter the conditions, which was commenced in February 1998, was incompetent. There was no right of appeal.
The Resource Management and Planning Appeal Tribunal Act 1993, s23(5), gives to the Tribunal powers similar to those of a planning authority under the Land Use Planning and Approvals Act 1993, s55. It authorises the Tribunal to correct a clerical mistake, or an error arising from any accidental slip or omission, or an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing or property referred to in its decision. No question concerning the exercise of that authority arises in this case. Further, the Resource Management and Planning Appeal Tribunal Act 1993, s23(6), gives to the Tribunal powers similar to those of a planning authority under the Land Use Planning and Approvals Act 1993, s56, which authorises planning authorities to make minor amendments to permits. Section 23(6), empowers the Tribunal to amend its decision on an appeal if it is satisfied that the amendment does not change the effect of any condition required by the Tribunal (par(a)) and will not cause an increase in detriment to any person (par(b)). The Tribunal had no power under that provision to amend conditions 17 and 18 in this case, as they were conditions required by the Tribunal in its decision on the appeal in May 1996.
I understood both counsel to accept that, notwithstanding the statutory prohibition on variations to permit conditions which have been required by the Tribunal, there is nothing to prevent a developer, who has obtained a permit with conditions required by the Tribunal, from subsequently applying for another permit which is identical to the first except for differences in the conditions, subject of course to the two year limitation period in the Land Use Planning and Approvals Act 1993, s62(2), which applies where a first permit has been the subject of an appeal which has been determined by the Tribunal. I have not comprehensively researched the point, but there appears to be authority which supports it. R v Berri District Council; ex parte H L Clark (Berri) Pty Ltd (1984) 52 LGRA 137 at 141; Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 at 259. And see R v City of Launceston; ex parte Attorney-General [1980] Tas SR 1 at 5.
It was a ground of the appeal to this Court that the Tribunal "failed to give any or sufficient weight to the fact that the consent decision" of the Tribunal in May 1996 "was arrived at as a result of an enforceable compromise of an earlier planning appeal and as such it was not open to the respondent to unilaterally vary that compromise". The ground invites a comment that the respondent was not seeking to unilaterally vary the compromise. What it was seeking to do was to persuade the Council, and then the Tribunal, to vary the conditions upon which the permit had been granted. Nevertheless, it was submitted by counsel for the Council that as a matter of law, a decision of the Tribunal which is made by consent and pursuant to the powers contained in the Resource Management and Planning Appeal Tribunal Act 1993, s17(2), has a more binding and permanent effect than a decision made without such consent, the basis of the submission resting on Sky-Ridge Pty Ltd v Burlington Pty Ltd (1995) 4 Tas R 485 at 493 - 496. Section 17(1), provides that in the case of an appeal to the Tribunal, the chairperson of the Tribunal may direct the holding of a conference of the parties presided over by a presiding member or another person performing duties on behalf of the Tribunal. Subsection (2) provides:
"(2) If a conference is held under subsection (1) and —
(a)at or after the conference, agreement is reached between the parties as to the terms of a decision of the Appeal Tribunal in the appeal that would be acceptable to the parties; and
(b)the terms of the agreement are reduced in writing, signed by the parties and given to the Appeal Tribunal; and
(c)the Appeal Tribunal is satisfied that —
(i)a decision in those terms would be within the powers of the Appeal Tribunal; and
(ii)that it would be appropriate to make a decision in those terms —
the Appeal Tribunal may, without holding a hearing, make a decision in accordance with those terms.
In this case such a conference was held in about May 1996; agreement was reached between the parties as to the terms of the decision of the Tribunal in the appeal which would be acceptable to the parties; the terms of the agreement were reduced to writing, signed by the parties and given to the Tribunal; and the Tribunal declared itself to be satisfied that a decision in those agreed terms would be within the powers of the Tribunal and that it would be appropriate to make a decision in those terms. Thereupon the Tribunal, without holding a hearing, made its decision in accordance with those terms, on 7 May 1996.
Sky-Ridge Pty Ltd v Burlington Pty Ltd (supra) has no application to this case. It concerned the Supreme Court Civil Procedure Act 1932, s43(a), which provided that "no appeal shall lie to a Full Court from any judgment, order, or other determination of a judge, whether sitting in court or in chambers … given or made by the consent of the parties". The case concerned an application for an extension of time in which to appeal from an order of a judge and it was necessary for Underwood J to decide whether or not the order was given or made by the consent of the parties. His Honour considered at some length reports of cases in other jurisdictions concerning when an order made by consent is to be treated as binding and the question when an order should be regarded as having been given or made by the consent of the parties. In this case, however, there is no statutory equivalent to the Supreme Court Civil Procedure Act 1932, s43. The Tribunal is not a court. Its powers and authorities are to be found in the Land Use Planning and Approvals Act 1993 and the Resource Management and Planning Appeal Tribunal Act 1993. The rights of the parties to make applications, to seek orders and obtain decisions of a planning authority or the Tribunal are to be found in the legislation.
It was also a ground of the Council's appeal to this court that the Tribunal erred in that it "failed to determine that it was functus officio with respect to the consent decision and that it had no jurisdiction to vary that consent decision absent the consent of the appellant". Reference was made by counsel for the Council to Bailey v Marinoff (1971) 125 CLR 529 in which, according to the headnote, it was held that there is no inherent power in a court to deal further with an appeal which has already been dismissed by formal order, in conformity with an order pronounced, where the order was entered before an application to vary it was made. Little assistance is to be gained from that case. Some support for counsel's submission is to be found in R v Berri District Council; ex parte H L Clark (Berri) Pty Ltd (1984) 52 LGRA 137 at 141. However, the Tribunal was not seeking to deal further with the 1996 appeal but with an application for a new permit.
I next consider the application by the Tribunal of the Resource Management and Planning Appeal Tribunal Act 1993, s22(2). The Tribunal had before it an appeal from the refusal by the Council of the respondent's application to alter the conditions of the 1996 permit. The respondent applied to the Tribunal to allow its application to the Council to be amended so that it sought instead a new permit for the same development with some identical conditions and some different conditions. Under the Resource Management and Planning Appeal Tribunal Act 1993, s22(3), the Tribunal had the power to order the making of an amendment to an application. The Council opposed the application, relying in part on the provisions of the Land Use Planning and Approvals Act 1993, s62(2), which provide that where the Tribunal has determined an appeal (in this case in May 1996), an application for a permit in respect of a use or development which is substantially the same as the use or development to which the appeal related may not, without the leave of the Tribunal, be made within a period of two years from the date on which the Tribunal made its decision. The Tribunal accepted, correctly in my view, that the effect of the amendment would have been that the application became one for a development which was substantially the same as the one proved by the Tribunal in May 1996, and that as that approval was less than two years before, the respondent needed the leave of the Tribunal. It was submitted to the Tribunal by counsel for the Council that such leave could not be retrospectively given, that is to say it could not be given by the Tribunal after the application to the Council had been lodged with the Council by the respondent. (It was lodged with the Council in January 1998 and the application to amend was made orally at the Tribunal's hearing of the appeal on 17 February 1998.) Without any apparent consideration of that submission, the Tribunal's chairperson suggested that the Tribunal make an order under the Resource Management and Planning Appeal Tribunal Act 1993, s22(2), excusing the respondent's failure to obtain leave. Counsel for the Council responded by submitting it would be contrary to what was decided in Campbell v Brighton Council (1995) 4 Tas R 430. Counsel for the respondent then applied to the Tribunal to exercise its discretion under s22(2) and excuse the respondent's failure to seek leave of the Tribunal and asked that, in the event that the Tribunal concluded that it was prevented by Campbell v Brighton Council from doing so, all matters be adjourned to enable the respondent to formally seek the Tribunal's leave under s62(2) and, assuming leave was given, to then make a fresh application in writing for a new permit.
It appears to have been assumed by all parties and the Tribunal that it was too late for the Tribunal to give leave under the Land Use Planning and Approvals Act 1993, s62(2), and that the only way in which the respondent could be allowed to amend its application to the Council, by converting it into an application for a new permit, was by the Tribunal excusing the respondent's failure to obtain leave pursuant to its power to excuse in the Resource Management and Planning Appeal Tribunal Act 1993, s22(2). The Tribunal next considered whether to exercise its powers under s22(2). It did not regard Campbell v Brighton Council (supra) as preventing it from doing so. It noted that at 439, Zeeman J said that s22(2)(a) ought to be construed as at least extending to a number of circumstances including where the Act or some other law imposed a positive obligation upon some person to do something, that person did not discharge that obligation and the failure of that person to discharge that obligation affected the appeal or purported appeal. The Tribunal held that s62(2) imposed a positive obligation upon the respondent to obtain leave under it; that the respondent had failed to discharge that positive obligation; that its failure to do so affected whether there was a valid application to the Council and therefore a decision of Council upon which an appeal might be brought; and that its failure therefore affected the appeal. The Tribunal therefore held that it was a case to which s22(2) extended. After considering circumstances of the case it determined to exercise its discretion under s22(2) and excuse the respondent's failure to obtain leave under s62(2).
I find it surprising that a question which was not addressed by the Tribunal and which was not addressed by counsel on this appeal, was whether the Tribunal ought to have granted to the respondent the leave it required under the Land Use Planning and Approvals Act 1993, s62(2). At the time of the hearing on 17 February 1998, the Tribunal was not hearing an appeal which was based on an application to the Council for a new permit. All it had before it in that connection was an application from the respondent for an order that its application to the Council be amended so that it sought a new permit. It is at least arguable, although without the benefit of submissions I do not determine the point, that the Tribunal could have given leave to the respondent under s62(2) to apply for the permit within the two year period, and to then order that the respondent's application to the Council be amended so as to seek such a permit.
Counsel for the Council, before the Tribunal and this Court, submitted that the failure to obtain leave under s62(2) could not be excused under the Resource Management and Planning Appeal Tribunal Act 1993, s22(2). I agree. A failure to obtain the leave required by s62(2), would affect an application to a planning authority but it would not affect an appeal, or a purported appeal, to the Tribunal. See s22(2)(a). If a developer applies to a planning authority for a permit in circumstances where, by virtue of s62(2), it is prohibited from doing so without the leave of the Tribunal, there is in my view nothing in the Act which allows the situation that has arisen to be corrected. The application is incompetent and the planning authority should not entertain it. Section 22(2), may not be used to excuse a developer's failure to comply with s62(2). If that was not the case, the Tribunal would have the power to hear applications on appeal which planning authorities are prohibited from hearing at first instance. There is nothing in s22(2) to suggest that is intended. The power in s22(2) is only to excuse failures to comply with requirements of the law which affect the appeal or purported appeal, and the provision should be limited to that. In this regard it is of some interest to compare the provision with that of the Planning Act 1982 (SA), s35(1), which was referred to in Campbell v Brighton Council (1995) 4 Tas R 430 at 435. There is an obvious difference, for in the South Australian provision the failure to comply with a requirement of the law needed to affect "the appeal or purported appeal, or the decision, or purported decision, against which the appeal, or purported appeal, has been brought". Section 22(2)(a) makes no mention of the decision, or purported decision, against which the appeal, or purported appeal, has been brought. I would apply what was said about the South Australian provision in R v South Australian Planning Commission; ex parte City of Unley (1986) 44 SASR 100 at 105, that there is no reason why the provision should not be given a wide, ample and benevolent construction, according to its tenor but nevertheless, the provisions of s22(2)(a) cannot be interpreted as authorising what the Tribunal did in this case. The failure to comply with a requirement of the law affected the application which was made by the respondent to the Council. It did not affect the appeal or purported appeal which was brought from the refusal of the Council to grant the application. In my opinion the Tribunal was in error when it purported to excuse the failure to obtain its leave.
I conclude that the Tribunal's decision on the respondent's appeal was erroneous. It ought not to have excused the respondent's failure to seek the leave of the Tribunal. Having done so, it allowed the respondent to amend its application to the Council. It would not have allowed that amendment if it had refused to excuse the respondent, as it ought to have done. Having allowed the amendment, the Tribunal did not treat the appeal as having arisen out of the amended application which had become an application for a new permit. Instead, it dealt with the application as if it had not been amended and determined that condition 15 of the 1996 permit be varied and condition 18 be deleted. The legislation gave it no jurisdiction to determine the appeal in that way, there being no jurisdiction in either a planning authority or the Tribunal to change the effect of a condition of a permit previously required by the Tribunal on an appeal. The Tribunal's determination of the respondent's appeal must therefore be set aside.
I think it must follow that the Tribunal's order on the hearing of the summons to show cause under the Land Use Planning and Approvals Act 1993, s64 should also be set aside. The order made was that the respondent comply (inter alia) with condition 15 as amended, whereas the amendment was unsustainable. Having purported to delete condition 18, which deletion was also unsustainable, the Tribunal failed to give proper consideration to whether it should order the respondent to comply with that condition. It may be that the order that the respondent comply with condition 17, which was unaffected by the Tribunal's determination of the respondent's appeal, should be confirmed. However, before making final orders I will invite the parties to make submissions.
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