Dorset Council v Krushka Pty Ltd - [1999] TASSC 69

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] TASSC 69
Decision Date: 17 June 1999

CaseChat Overview and Summary

The case of Dorset Council v Krushka Pty Ltd involved a dispute between the Dorset Council and Krushka Pty Ltd regarding a planning permit for the development of a holiday unit complex. The legal issues centered around the power of the Resource Management and Planning Appeal Tribunal to excuse a failure to comply with a requirement of the law affecting an appeal or purported appeal, and the Tribunal's jurisdiction to grant a new permit. The Court held that the Tribunal had no jurisdiction to excuse the failure to obtain leave from the Tribunal for a new permit application, as such a failure affected the application rather than the appeal. Additionally, the Tribunal did not have the authority to change the effect of conditions of a permit previously required by the Tribunal on an appeal. As a result, the Tribunal's decision to grant the amended application and its subsequent order for compliance with certain conditions were set aside.

The Court found that the Tribunal's decision on the respondent's appeal was erroneous and ought not to have excused the respondent's failure to seek leave from the Tribunal. The Tribunal had no jurisdiction to determine the appeal in the manner it did, and its determination of the respondent's appeal must be set aside. Furthermore, the Tribunal's order on the hearing of the summons to show cause should also be set aside, as it was based on the unsustainable amendment to the permit conditions. The Court invited the parties to make submissions before making final orders.

Orders