Drewitt v Resource Management and Planning Appeal Tribunal (No 2)

[2008] TASSC 43

[2008] TASSC 43

CITATION:Drewitt v Resource Management and Planning Appeal Tribunal (No 2) [2008] TASSC 43

PARTIES:  DREWITT, Julianne
  v
  RESOURCE MANAGEMENT AND PLANNING
  APPEAL TRIBUNAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  447/2008
DELIVERED ON:  22 August 2008
DELIVERED AT:  Launceston
HEARING DATE:  29 July, 6, 13 August 2008
JUDGMENT OF:  Blow J

CATCHWORDS:

Environment and Planning – Courts and tribunals with environmental jurisdiction – Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors – Other matters – Application for enforcement of planning scheme – Standing of applicant – Previous representor and appellant.

Land Use Planning and Approvals Act 1993 (Tas), s64(1); Sch1, Pt1, cl 1(c), (e).
Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493; Australian Conservation Foundation Incorporated v South Australia (1990) 69 LGRA 443; King Cole Hobart Properties Pty Ltd v Planning Appeal Board (1992) 77 LGERA 92, referred to.
Aust Dig Environment and Planning [600]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine
             Attorney-General:  P Turner
             Epoh Investments Pty Ltd:            K B Procter SC
Solicitors:
             Applicant:  S B McElwaine
             Attorney-General:  Director of Public Prosecutions
             Epoh Investments Pty Ltd:            Murdoch Clarke

Judgment Number:  [2008] TASSC 43
Number of paragraphs:  26

Serial No 43/2008
File No 447/2008

JULIANNE DREWITT
v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL (NO 2)

REASONS FOR JUDGMENT  BLOW J

22 August 2008

1. This is an application pursuant to the Judicial Review Act 2000. The applicant is seeking review of a decision made by the respondent tribunal on 16 May 2008 when it rejected an application made by her for orders for the enforcement of a planning scheme. She had applied to the tribunal for orders pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s64, to prevent the upper level of a building in Glenorchy being used for medical consulting rooms. The tribunal held that she did not have sufficient interest in the subject matter of the proceedings before it, and declined to issue a summons under s64(2), thereby bringing the proceedings to an end. She contends that the tribunal erred in law in reaching that conclusion. She contends that the tribunal's decision should be set aside and the matter remitted to it for further determination.

The facts

1. A company named Epoh Investments Pty Ltd owns two adjoining parcels of land known as 1/346 and 2/346 Main Road Glenorchy. Parts of each property are used for medical consulting rooms, and as the premises of a pharmacy. In January 2007 an application was made to the Glenorchy City Council ("the council") for a planning permit for a development involving the expansion of a building on the two pieces of land, and the removal of some car spaces at the rear of the premises. The applicant made a representation to the council in relation to that application pursuant to the LUPA Act, s57. The council granted a permit. The applicant appealed to the tribunal, but was unsuccessful. She made an application for the review of its decision pursuant to the Judicial Review Act.  I dismissed that application on 21 December 2007: Drewitt v Resource Management and Planning Appeal Tribunal [2007] TASSC 111. The applicant appealed to the Full Court. Her appeal has been argued but not yet determined.

1. A second development application in respect of the same premises was made to the council on 29 May 2007. The applicant made a representation in respect of that application pursuant to s57. The council has apparently not made any determination in respect of that application.

1. In June 2007 a third development application was made to the council in respect of the same premises, again proposing that the building be enlarged, and that the enlarged building be used for medical consulting rooms and a pharmacy. The applicant made another representation pursuant to s57. The council granted a permit. The applicant appealed to the tribunal. This time she was successful. The tribunal set aside the council's decision on 17 December 2007. There has been no appeal or application for review in respect of that decision.

1. The applicant made the relevant application to the tribunal for orders pursuant to s64 on 28 April 2008. In support of her application she provided written evidence as follows. On 5 March 2008 she observed that building works had commenced at the premises in question. She obtained a plan showing that it was intended that medical consulting rooms were to be constructed on the first floor of the premises. No permit had been issued by the council for the development of consulting rooms on the first floor. On 8 April 2008 a council officer wrote to the applicant's solicitor asserting that a development permit "was not required as the internal works were exempt in accordance with Schedule 1(b) of the Glenorchy Planning Scheme 1992". In fact that provision makes it unnecessary to apply for a permit only in respect of alterations to the interior of a building that are not associated with a change of use under that planning scheme. The applicant contended that the first floor had been used only for pharmacy purposes, and that the establishment of medical consulting rooms there involved a change of use under the scheme.

1. The relaxation of the provisions of the planning scheme in relation to car parking was a very significant issue in both of the appeals that the applicant took to the tribunal.  The applicant contends that seven medical consulting rooms are being constructed on the first floor of the building; that the planning scheme requires the provision of 28 parking spaces when such a development is undertaken; that the developer is providing none; and that people going to the consulting rooms will park on private land in different ownership.

1. The applicant has not claimed that her financial interests will or might be affected by the development of the premises.  Her application to the tribunal was not based on any such contention.

The enforcement legislation

1. By virtue of the LUPA Act, s63(2)(a) and (3), it is an offence for a person to use land in a way, or to undertake development, that is contrary to a planning scheme.

1. Those provisions are provisions to which s64 applies. That section begins as follows:

"(1)   Where a person contravenes or fails or is likely to contravene or fail 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.

(2)    The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section."

The tribunal proceedings

1. The applicant's application was made to the tribunal ex parte in accordance with s64(2). The tribunal published written reasons for declining to issue a summons.

1. When a member of the public seeks to invoke s64, it is sometimes appropriate for the tribunal, when deciding whether or not to issue a summons, to consider whether the applicant lacks "a proper interest in the subject matter" within the meaning of s64(1). The tribunal addressed that question in this case. After referring to the application and the orders sought, and after setting out the whole of s64, the tribunal said:

"4A preliminary issue that must be determined is Ms Drewitt's standing to bring this application. This is not the first time that she has sought relief against this Respondent pursuant to Section 64. On the last occasion the tribunal, applying the test in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 determined that Ms Drewitt lacked sufficient standing in terms of section 64(1) of the Land Use Act."

1. The tribunal went on to discuss Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 453; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; Re McBain; ex parte Catholic Bishops' Conference (2002) 209 CLR 372; and the provisions of s64. Its reasoning concluded with the following:

"9It is clear that the tribunal must be satisfied that Ms Drewitt has a 'proper interest' in the subject matter of the proceedings.  Nothing that is said on her behalf persuades the tribunal that she does.  The fact of her having made a representation at a time when the relevant council was undertaking a consideration of a development application concerned with the relevant property is simply not to the point.

10The mere fact that the Applicant has previously exercised statutory rights as a representor or appellant where, in neither case there is any test of standing (that is to say any person at all may make a representation and thus then appeal), does not support, at all, the proposition that Ms Drewitt has sufficient standing here.

11The tribunal has very carefully considered Ms Drewitt's comprehensive statement lodged in support of the application.  Nothing in it satisfies the tribunal that her interest is anything more than that of any other member of the public.  Nothing in it persuades the tribunal that she is 'likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest' (per Gibbs J in Australian Conservation Foundation at 530). Nothing in it persuades the tribunal that she has sufficient interest in the subject matter of the proceedings, as required by section 64(1) of the Land Use Act.

12The tribunal declines to issue the summons requested."

The hearing of the present application

1. As the respondent to this application, the tribunal filed a notice pursuant to the Supreme Court Rules 2000, r777G, stating that it will submit to any order that the Court makes. The Attorney-General intervened in the proceedings pursuant to the Judicial Review Act, s39, appeared by counsel, and opposed the application. The council has not been served with the application, and did not appear. On 29 July 2008 I proceeded with the hearing of the application without the owner of the relevant premises having been served or having appeared. Counsel for the applicant submitted that there was no need for the owner to be served. Rather than adjourn the hearing to consider that point, I proceeded with the hearing on the basis that, if later thought appropriate, the owner could be provided with a transcript and invited to make submissions. I subsequently decided that I should give a direction that the owner be served with the originating application pursuant to the Supreme Court Rules, r777E(1). The owner was served and provided with a recording of the proceedings on 29 July. Counsel for the owner subsequently appeared before me. He told me that he did not wish to dispute the authenticity of any of the evidentiary material relied upon at the earlier hearing, and that he did not wish to adduce any evidence. I gave him an opportunity to make written submissions, but he has chosen not to make any.

"A proper interest in the subject matter"

1. The LUPA Act, s5, provides as follows:

"It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives set out in Schedule 1."

1. Schedule 1 to the LUPA Act is divided into two parts. Part 1 is entitled "Objectives of the Resource Management and Planning System of Tasmania". Clause 1 of that Part provides as follows:

"1   The objectives of the resource management and planning system of Tasmania are —

(a)to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b)to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c)to encourage public involvement in resource management and planning; and

(d)to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e)to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State."

1. Because of the provisions of cl 1(c) and (e), whenever the tribunal forms an opinion as to whether an individual has a proper interest in the subject matter of a s64 application, it is required by s5 to perform that function in such a manner as to further the objectives of encouraging public involvement in resource management and planning, and promoting the sharing of responsibility for resource management and planning so that an appropriate share of responsibility is taken by the community. The tribunal did not refer to that obligation in its reasons, and appears to have overlooked it altogether.

1. There are many reported environmental and planning cases that concern questions as to the standing, or lack of standing, of individuals and organisations that have instituted legal proceedings.  The leading case is Australian Conservation Foundation Incorporated v Commonwealth (supra), to which the tribunal referred. In that case, Gibbs J (as he then was) said the following at 526:

   "It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so."

2. At 530 – 531, his Honour said the following:

   "I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."

3. That case was subsequently considered in a number of cases concerning planning legislation that provided for members of the public to have unrestricted rights to make representations to planning authorities.  In Australian Conservation Foundation Incorporated v South Australia (1990) 69 LGRA 443, two non-profit organisations had applied for declarations and injunctions, contending that certain provisions in a planning statute applied to the development of a proposed tourist resort in a national park. The statute provided that "any person" might make representations to the relevant planning authority in relation to the granting or refusal of a development application. The principal judgment was delivered by King CJ, with whom Cox and Duggan JJ agreed. At 447 – 448, referring to the relevant statutory provision, his Honour said the following:

   "Section 53 confers, then, important rights in relation to the planning process of a kind which afford to a person exercising them the opportunity of affecting the outcome of the process. A person who is opposed to a proposed development may exercise those rights in opposition to it and, if his representations or arguments on appeal prevail, will defeat the proposal. Such rights are effective only if the person undertaking development applies for planning authorisation. If he seeks to undertake a development for which planning authorisation is necessary under the Planning Act without complying with the procedures prescribed by the Act to obtain such authorisation, a person desiring to make representations and/or to appeal, is deprived of his statutory rights.

   The threatened deprivation of such statutory rights would unquestionably, in my view, amount to a special interest sufficient to found standing to bring an action to prevent the unlawful development, if the rights existed in but a limited class of persons. The problem in treating the interest as special is that the rights conferred by s 53 are conferred on all persons without exception. It is argued that the threatened deprivation of a right which inheres in everybody cannot amount to an interest which is special to a plaintiff. This reasoning commended itself to Connolly J in Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council [[1983] 2 Qd R 72].

   I would have no difficulty about affirming that the principle that a plaintiff must have an interest in the subject matter of the action beyond that which exists in the public at large, would justify the denial of standing to members of the community who, although possessing theoretical rights to make representations and to appeal if the proposed development were the subject of an application for planning authorisation, have no serious intention of exercising those rights. I cannot see any valid reason, however, for denying standing to maintain an action to prevent a development without compliance with the proper planning process, to a person who seriously intends, if the proper process is followed, to make representations and perhaps appeal against an adverse decision. A person who entertains such a serious intention seems to me to have an interest beyond that of the interest of members of the public generally in the enforcement of the law. The special interest in such a case arises not from the impact which the proposed development will have on the plaintiff but from the threatened deprivation of the right to oppose by representations and appeal, which right is conferred upon him by statute irrespective of the impact, if any, of the proposed development upon him. I think that such an interest goes beyond 'the satisfaction of righting a wrong, upholding a principle or winning a contest': Australian Conservation Foundation Inc v Commonwealth (at 530; 256) per Gibbs J, it relates to the preservation of the right conferred by statute to take the measures authorised by the statute to oppose the development. Parliament has seen fit to confer such rights on all persons without distinction and irrespective of whether the proposed development will have any special impact upon them. The special interest justifying locus standi is the interest which a person, seriously desirous of exercising those rights, has in preserving them by preventing the development from proceeding without compliance with the process which enables the rights to be exercised."

4. In this Court, Wright J agreed with that approach in King Cole Hobart Properties Pty Ltd v Planning Appeal Board (1992) 77 LGERA 92. In that case, Tasmanian Conservation Trust Incorporated had made a representation opposing a development pursuant to the Local Government Act 1962, s733B.  The relevant council granted planning approval, subject to a number of conditions.  The developer was aggrieved by some of the conditions.  It appealed to the Planning Appeal Board.  The objector considered the conditions satisfactory, and therefore did not appeal, but would have had a right of appeal if aggrieved by the council's decision.  The developer and the council reached agreement at a compulsory conference, of which the objector had had no notice.  The Planning Appeal Board made orders in accordance with that agreement.  The objector applied to the Court for determination of the question whether the board's purported determination was valid.  The developer applied for the proceedings to be struck out on the grounds that the objector did not have the standing to maintain its proceedings.  Wright J concluded that the objector did have the necessary standing.

1. Neither that case nor Australian Conservation Foundation Incorporated v South Australia was referred to by the tribunal in its reasons. Neither of those cases involved an application to a court for a statutory remedy. Because of the provisions in Sch1 to the LUPA Act that I have referred to, I think the applicant is in a stronger position to argue that she had standing than either of the associations whose standing was in issue in those cases. Having regard to those two cases and the relevant provisions in the schedule to the LUPA Act, I think the tribunal erred when, in par10 of its reasons, it said that the fact that the applicant had previously exercised her statutory rights as a representor or appellant did not support at all the proposition that she had sufficient standing. Her past activities tended to suggest that she would again make representations, and perhaps appeal if the developer were to follow the procedures that she contended to be proper.

1. Counsel for the Attorney-General relied on the decision of the Full Court of the Federal Court in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250. That case concerned the meaning of the words "persons whose interests are affected" in the Therapeutic Goods Act 1989 (Cth), s60(2). I think that case is distinguishable because it arose in a very different statutory context. However it is worth noting that Gummow J said the following at 272:

"Like the expression 'a person aggrieved', the phrase 'a person whose interests are affected by the decision' and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the 'interests' concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms 'affect' and 'interest' are to be seen in the light of the scope and purpose of the particular statute in issue."

1. Counsel for the Attorney-General referred me to some cases which establish that, on an application for judicial review or an appeal from a tribunal, a court must not be concerned with looseness of language, unhappy phrasing of the decision-maker's thoughts, verbal slips and the like: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Attorney-General v Cameron [2007] TASSC 22 at pars8, 55 – 60. However I think the error on the part of the tribunal was a substantial one. The tribunal was constituted by an experienced legal practitioner. He made a value judgment as to whether the applicant was a person who satisfied a statutory description, namely "a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter". There is no decided case directly in point as to the meaning of those words. He had to be guided by the provisions of the relevant statute and the relevant case law. He apparently missed some very relevant statutory provisions and two very relevant cases. He clearly concluded that the proposition that the applicant had sufficient standing was not even arguable. There was no imprecision or loose language in his reasoning or his conclusion.

1. It is clear that the question whether, on the facts as found, an individual satisfies a particular statutory description is a question of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394 – 395. In considering such a question of law, the tribunal erred in law by giving no weight to relevant evidence as to the past steps taken by the applicant as a representor and as an appellant in the course of her involvement in resource management and planning concerning the premises in question, and by not considering the relevant provisions of the LUPA Act, Sch1.

1. I think the tribunal also erred, at the beginning of par4 of its reasons, in treating the applicant's standing as something that it had to determine as a preliminary issue. In my view the tribunal does not have a duty, whenever an individual makes an application under s64, to determine that individual's standing as a preliminary issue. There no doubt can be cases when the tribunal can rightly refuse to issue a s64 summons because the applicant clearly does not have "a proper interest in the subject matter", but ordinarily the issue of standing is one that should be determined at the same time as the other issues in the proceedings. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Limited [1982] AC 617, which concerned a fairly similar procedural regime whereby an ex parte application for leave had to be made by an applicant seeking judicial review, Lord Wilberforce said the following at 630:

"There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply.  The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications.  But in other cases this will not be so.  In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed.  In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context."

Conclusion

1. For the above reasons, I make the following orders:

1That the decision of the respondent on 16 May 2008, in respect of application A20/08, to decline to issue a summons be set aside.

2That that application be referred to the respondent for further consideration by a differently constituted tribunal.