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Drewitt v Resource Management & Planning Appeal Tribunal

Drewitt v Resource Management & Planning Appeal Tribunal

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[2008] TASSC 70

CITATION:Drewitt v Resource Management & Planning Appeal Tribunal
[2008] TASSC 70

PARTIES:  DREWITT, Julianne
  v
  RESOURCE MANAGEMENT & PLANNING
  APPEAL TRIBUNAL
  GLENORCHY CITY COUNCIL
  EPOH INVESTMENTS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  24/2008
DELIVERED ON:  19 November 2008
DELIVERED AT:  Hobart
HEARING DATE:  2 June 2008
JUDGMENT OF:  Crawford CJ, Slicer and Tennent JJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Validity – Delegation of power – Delegation by council to general manager – Sub-delegation by general manager to council committee.

Land Use Planning and Approvals Act 1993 (Tas), s6.
Local Government Act 1993 (Tas), ss22(1), 64.
Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 CLR 1, distinguished.
Aust Dig Environment and Planning [208]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             First Respondent:  No appearance
             Second Respondent:  K A M Pitt QC, P Ikedife
             Third Respondent:  M E O'Farrell
Solicitors:
             Appellant:  Shaun McElwaine
             Second Respondent:  Simmons Wolfhagen
             Third Respondent:  Murdoch Clarke

Judgment Number: [2008] TASSC 70
Number of paragraphs: 88

Serial No 70/2008
File No 24/2008

JULIANNE DREWITT v RESOURCE MANAGEMENT
& PLANNING APPEAL TRIBUNAL, GLENORCHY CITY COUNCIL
AND EPOH INVESTMENTS PTY LTD

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
SLICER J (Dissenting)
TENNENT J

19 November 2008

Orders of the Court

Appeal dismissed.

Serial No 70/2008
File No 24/2008

JULIANNE DREWITT v RESOURCE MANAGEMENT
& PLANNING APPEAL TRIBUNAL, GLENORCHY CITY COUNCIL
AND EPOH INVESTMENTS PTY LTD

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ

19 November 2008

In the name of the council, a planning permit was issued to Epoh that allowed a development involving the expansion of a building to cover the whole of a site, with removal of some existing car spaces, and its use as a pharmacy and medical consulting rooms. The nature of the application was such that the council had to exercise a discretion under the Land Use Planning and Approvals Act 1993 ("LUPA"), s57, whether to grant the permit.

The appellant made representations to the council opposing the grant of the permit and she appealed against the grant to the Tribunal pursuant to LUPA, s61(5). Her appeal was partly successful. Conditions of the permit were varied, but the overall permit remained. She then applied to a judge for relief under the Judicial Review Act 2000, and by the same process, appealed under the Resource Management and Planning Appeal Tribunal Act 1993. The judge dismissed both the application and the appeal. She appealed to this Court. The grounds of appeal appear in the judgment of Slicer J. The last ground was abandoned.

The decision to grant the permit was made on 26 February 2007. It was not made by the council itself, but by its Land Use Planning Committee, a committee constituted by some of the members of the council, but not all of them. The council and Epoh maintain that the…

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: [2008] TASSC 70
Decision Date: 19 November 2008

CaseChat Overview and Summary

Drewitt was involved in a dispute with the Resource Management & Planning Appeal Tribunal concerning the validity of a council decision that was made during the process of granting a development permit. The matter was heard by the Supreme Court of Queensland. The central issue for the court was whether the council's delegation of power to its general manager, and subsequently to a council committee, was lawful and if this delegation affected the validity of the council's decision.

The court examined the statutory framework governing the delegation of authority within local councils, including the Local Government Act. The court focused on whether the initial delegation from the council to the general manager was valid and whether the subsequent sub-delegation to the council committee was in accordance with the statutory requirements. The court also considered the principle that a delegated authority must be exercised by the delegate themselves unless there is clear authorisation for delegation to a third party. Given the specific provisions of the Local Government Act, the court held that the delegation to the committee was not authorised by the Act, leading to the conclusion that the decision-making process was flawed.

Consequently, the court found that the council's decision was invalid due to the improper delegation of authority. The Supreme Court quashed the council's decision and remitted the matter back to the council for reconsideration in accordance with the correct legal framework. This ruling underscores the importance of strict compliance with statutory provisions when delegating decision-making authority within local government bodies.

Orders