Drewitt v Resource Management & Planning Appeal Tribunal
[2008] TASSC 70
•19 November 2008
[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 making of the committee's decision was an exercise of powers validly delegated to it by the council. The appellant's case is that any delegation of power to the committee was invalid and that it follows that the decision was without legal effect. Racecourse Co-operative Sugar Association Ltd v Attorney-General (1979) 142 CLR 460 at 481. Both the Tribunal and the judge rejected the appellant's case.
The purported delegation
Council officers revised and updated a document referred to as a delegations register. The council decided to delegate powers in accordance with it. The register was a lengthy document listing the powers of the council that it delegated to its general manager and in the case of some of those powers, that it authorised the general manager to sub-delegate "to the positions named". The reference to the positions named was to 33 council officers (identified by their offices, and not by their names, such as Senior Planner, Planning Officers, Animal Control Officer and Plumbing Inspector) and to the committee.
At the very beginning of the register, the following words appeared:
"Under the powers given by section 22 of the Local Government Act (1993), Council delegates all of the powers listed in this register to the General Manager and authorises the General Manager to further delegate these powers to the positions named."
On page 32 of the register, the following appeared:
"Land Use Planning Committee
To determine those matters of statutory land use planning listed on the agenda for meetings of the Land Use Planning Committee."
The council passed a resolution on 13 February 2001 that included "(a) That all the powers listed in the delegations register be delegated to the General Manager …" and "(c) That the General Manager is authorised to delegate to the positions shown in the register those powers that are listed under the positions."
On 16 February 2001 the general manager purported to exercise the power to sub-delegate to the Land Use Planning Committee the power "to determine those matters of statutory land use planning listed on the agenda for meetings of the Land Use Planning Committee". He did so by a letter to that committee.
It is the case of the council and Epoh, and it was so held by the Tribunal and the learned judge, that the delegation to the committee was valid under the powers given to the council by the Local Government Act 1993, s22(1). The section was in the following terms:
"22 — (1) Subject to subsection (2), a council, in writing, may delegate with or without conditions to the general manager, controlling authority, a council committee or a special committee, any of its functions or powers other than —
(a) this power of delegation, unless authorized by the council; and
(b) the powers referred to in subsection (3)."[1]
[1]Section 22(1) was subsequently amended by the Local Government Amendment Act 2005, s13, by inserting "under this or any other Act," after "or powers". If those words had been in the subsection at the time of the purported delegation, much of the appellant's arguments would have been undermined. However, the learned judge below erroneously dealt with the proceedings as if the additional words were in s22(1) at the time of the purported delegation.
(2) A council, in writing, may delegate any of the following powers only to the general manager or a council committee and only on condition that the council has determined appropriate policies and procedures to be followed in relation to those powers:
(a) the collection of rates and charges under Part 9;
(b) the remission or rebate of rates and charges;
(ba) the writing off of any debts owed to the council;
(c) the making of grants or the provision of benefits.
(3) A council must not delegate any of its powers relating to the following:
(a) the borrowing of money or other financial accommodation;
(b) the determination of the categories of expenses payable to councillors and any member of any committee;
(c) the establishment of committees, controlling authorities or joint authorities;
(d) the revision of the budget or financial estimates of the council;
(e) the revision of the strategic and operational plans of the council;
(f) the approval for, and the method of, the sale of land;
(g) the making of by-laws;
(h) the making of rates and charges under Part 9;
(i) any other prescribed power.
On the other hand, it is the case of the appellant that the council's power to delegate its functions or powers to make planning decisions was not governed by s22(1), but by LUPA, s6(3), because the power to make the decision to grant the permit came directly from LUPA and not from the Local Government Act. LUPA, s6, was in these terms:
"6 — (1) …
(2) …
(3) A planning authority may, by resolution, delegate any of its functions or powers under this Act other than this power of delegation to a person employed by the authority.
(4) A delegation may be made either generally or as otherwise provided by the instrument of delegation.
(5) Notwithstanding any delegation, a planning authority may continue to perform or exercise all or any of the functions or powers delegated.
(6) A function or power performed or exercised by a delegate has the same effect as if performed or exercised by a planning authority."
By the interpretation section, s3, the reference to a "planning authority" was to a council under the Local Government Act.
History of the legislation
Immediately prior to 1994, planning laws were contained in the Local Government Act 1962, ss718 – 761B. They provided, among other things, for the preparation of planning schemes by municipalities and the granting by municipalities of planning approvals under such schemes following receipt of applications for approval.
Although my own experience tells me that approvals were often granted at regular municipal council meetings, the 1962 Act permitted delegation at the time of the enactment of LUPA. By s133(1)(b) a council had a general power to delegate to a committee, consisting of members of the council, any of its powers and duties under the Act, other than a number of specific powers that were unrelated to planning matters. Under s134(1) a council had a general power exercisable by special resolution to delegate to special committees, the members of which may or may not have included members of council, any of its powers or duties under the Act, other than the exceptions mentioned in s133(1)(b). By virtue of s135(2), if so expressed in a special resolution of the council, the performance of such a committee of those powers and duties had the same effect as if exercised or performed by the council itself and needed no confirmation by the council. However, if there was no such special resolution, the council's confirmation was required.
The 1962 Act also provided for a further power of delegation in s180A. By a special resolution, a council could delegate to one or more of the officers of the municipal corporation, or to a committee consisting of members of the council, the exercise or performance of any of its powers or functions under the Act, other than the power to make by-laws and to sub-delegate. By subs(6), anything done by the delegate in the exercise of a delegation had the same force and effect as if done by the corporation.
By inference, the power to delegate was extended by s181 of the 1962 Act to every power and duty conferred on a council by any other Act.
A raft of interconnected legislation was introduced into Parliament in 1993. It included the State Policies and Projects Act 1993, the Resource Management and Planning Appeal Tribunal Act 1993, LUPA, the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993, the Local Government Act 1993, the Local Government (Building and Miscellaneous Provisions) Act 1993 and the Local Government (Savings and Transitional) Act 1993.
The first four of those Acts ("the new planning legislation"), which directly concerned State and municipal planning matters, received the royal assent on 9 November 1993 and commenced on 1 January 1994. The last three of those Acts, which concerned local government in a general sense, received the royal assent on 23 December 1993 and except in one minor and irrelevant way, commenced on 17 January 1994. By the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993, s7(zl), the planning provisions of the Local Government Act 1962, ss718 – 761B were repealed (other than two immaterial sections), but by s10 and Sch1, existing planning schemes and interim orders under the 1962 Act were continued in force. Provision was made for unresolved planning applications under the 1962 Act. Councils were given a discretion to deal with them as if LUPA had not been enacted or as if it had, dependent on the course individual councils chose to take. Otherwise, unresolved planning applications were to be treated as applications under LUPA.
In its original form, the power given by LUPA, s6(3), to a "planning authority" to delegate any of its functions or powers under LUPA to a person employed by the authority, was a power reposed in municipalities and marine boards constituted under the Marine Act 1976. That was because the definition of "planning authority" in s3(1) extended to "a municipality or a marine board constituted under the Marine Act 1976".[2]
2By the Local Government (Consequential Amendments) Act 1995, s3 and Sch1, the reference to "municipality" in the definition of "planning authority" was omitted and "council" was substituted. Consequent upon the repeal of the Marine Act by the Ports Companies Act 1997, s32(1) and Sch2, which effectively abolished the marine boards, LUPA was amended by the Marine (Consequential Amendments) Act 1997, s3 and Sch1, by omitting the reference to marine boards in the definition of "planning authority".
I have referred to the powers of delegation of municipal councils in the Local Government Act 1962 at the time of the enactment of LUPA. Marine boards also had power to delegate their functions or powers under the Marine Act, s65A, which provided that a board might, in writing, delegate to its chief executive officer any of its functions, duties or powers other than the power of delegation.
It can be seen that the power of delegation given by LUPA, s6(3), extended the powers of delegation that a marine board had at that time, by giving it the power to delegate any of its functions or powers under LUPA to any of its employees, and not just to its chief executive officer.
On the other hand, if the arguments of the appellant are accepted, the previous powers of a council under the Local Government Act 1962 to delegate planning matters to a committee of members of the council, or to a special committee, were impliedly repealed or removed by LUPA, s6(3).
Sixteen days after LUPA commenced, the Local Government Act 1962 was repealed and replaced with the Local Government Act 1993. Unlike the 1962 Act until 16 days before, it contained no provisions that expressly related to planning, for the new planning legislation had provided for that. In s22 it gave to a council the power to delegate any of its functions or powers to the general manager, controlling authority, a council committee, a special committee or a local committee. The section remaining in substantially the same form, apart from immaterial amendments, until the time of the council's resolution on 13 February 2001. By s64, it also gave to the general manager of a council the power to delegate to an employee of the council (a) any functions or powers, other than that power of delegation, and (b) any functions or powers delegated by the council which the council authorised the general manager to delegate. The section remained unamended at the time of the council's resolution on 13 February 2001.
Does s6(3) of LUPA exclude the operation of s22(1) of the Local Government Act 1993?
It was submitted for the appellant that the reference to functions and powers in s22(1) was to functions and powers that were given to councils by the Local Government Act, ss20 (functions) and 21 (powers), and was not a reference to the functions and powers given to them by LUPA.
Under the Local Government Act, councils had many functions and powers other than those to which reference was made in ss20 and 21. Section 22 expressly referred to a number of powers not referred to in s21, such as the collection of rates and charges, the writing off of debts, the making of grants, the provision of benefits and the borrowing of money. The powers in s21 were described in the heading of the section as "enterprise powers" and included powers such as forming or participating in the formation and operation of a corporation, trust partnership or other body; becoming a member of a company limited by guarantee; and subscribing for, or otherwise acquiring and disposing of, units in a trust. They were in the nature of powers to engage in businesses and other enterprises. It is patent that councils had many other powers, under the Act and other legislation, to which s21 did not refer and that s22 was not intended to be confined to only those powers to which reference was made in s21 and those functions to which reference was made in s20.
It was also submitted for the appellant that s6(3) limited the delegation of a council's functions and powers to grant planning permits to a delegation to a person employed by the council and did not permit delegation to a committee of the council. It was submitted that s6(3) was a specific provision that applied to the delegation of council's functions and powers under LUPA and for that reason, it should be interpreted as overriding the general powers of councils to delegate functions and powers pursuant to the Local Government Act, s22(1).
Counsel for the appellant relied on the approach to interpretation stated in Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 CLR 1 per Gavan Duffy CJ and Dixon J at 7, that when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
That approach cannot have a literal application here, for the provisions in question were not in the same instrument. The Full Court in Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 at 531 made the point that it has little, if any, applicability to powers expressly confined in separate enactments. A similar view was expressed by Santow JA in White v Betalli [2007] NSWCA 243 at par33. Whether that view is correct was doubted by Pearce & Geddes, Statutory Interpretation in Australia 6th ed at 4.31. In any event, it is clear that the provisions in question must be construed to determine whether one is to be preferred over, or overrides the other.
I prefer the view adopted by the learned judge below. His Honour determined that the material provisions operated concurrently, with some overlapping, so that a council might delegate its planning powers under either statute. There was nothing in the language of LUPA, s6, to indicate that the legislature intended the delegation provisions in the Local Government Act 1962 or the forthcoming Local Government Act 1993 would not apply in relation to planning powers of councils, and there was nothing in the language of the relevant provisions of the Local Government Act 1993 to indicate that the legislature intended that powers of delegation in that Act would not apply in relation to planning powers. Full effect can be given to the relevant provisions of both LUPA and the Local Government Act 1993 without offending rules of construction. There is a strong presumption that the legislature did not intend to contradict itself but intended both Acts to operate within their given sphere. Butler v Attorney-General (Vic) (1961) 106 CLR 268 per Fullagar J at 276.
I can think of no good reason why the legislature would have intended to permit a council to delegate almost all of its powers to say, a committee of some of its members, but not its planning powers, and yet permit it to delegate those powers to any employee of the council. The members of the council had the overall responsibility for making planning decisions. There is reason to think that the legislature intended by LUPA, s6, merely to extend a council's powers of delegation rather than to restrict them.
Was the power of the general manager to delegate constrained by the Local Government Act 1993, s64?
Part 7 of the Local Government Act dealt with matters of municipal administration and Div1 dealt with the appointment and functions of general managers and other employees of councils. Within Div1 was s64, which at the time of the delegation in 2000, gave to general managers powers to delegate:
"The general manager, in writing, may delegate to an employee of the council –
(a)any functions or powers other than this power of delegation; and
(b)any functions or powers delegated by the council which the council authorized the general manager to delegate."[3]
[3]By the Local Government Amendment Act 2005, s49, the words "under this or any other Act" were inserted after "or powers" in s64(a).
The section only authorised a delegation by a general manager to an employee of the council. It is the appellant's argument that, in the circumstances of this case, the general manager had no power to delegate to the Land Use Planning Committee. Her counsel submitted that if a council delegated the power to delegate to its general manager under s22(1), the general manager was constrained by s64 to sub-delegate only to an employee of the council. Reliance was placed on the well-known principle that absent an express power of sub-delegation, any attempt to exercise such a power is invalid. The question becomes whether the power "has been exercised in the manner and within the limits laid down by the statute conferring the power". Dainford Ltd v Smith (1985) 155 CLR 342 at 349. It was submitted that s64(b) had no work to do if a council was empowered by s22(1) to authorise the general manager to delegate a power to any person, committee or body it chose.
I agree with the view of the learned judge that ss22(1)(a) and 64(b) conferred on councils two separate powers to authorise sub-delegation. Although s64 dealt with the sub-delegation of powers delegated to a general manager, there was no provision other than s22(1)(a) relating to the sub‑delegation of powers by a controlling authority, a council committee or a special committee. His Honour was of the view that it must follow that s22(1)(a) was the source of the power to authorise sub‑delegation in respect of those bodies, and that it must follow that s22(1)(a), in its application to a general manager, was not concerned with an authorisation of sub-delegation pursuant to s64(b), but was a separate source of power pursuant to which a council might authorise a general manager to sub‑delegate.
There is another reason that supports that view. Section 22(1)(a) authorised a council to delegate "this power of delegation". In the subsection, "this" power of delegation was the power to delegate with or without conditions to the general manager, controlling authority, a council committee or a special committee. It must follow that the subsection expressly empowered the council to delegate any of its functions or powers to the general manager or one of the other three entities, and at the same time to delegate to its delegate the power to delegate in the same way. In other words, under s22(1), the council could only authorise the general manager to sub-delegate to a controlling authority, a council committee or a special committee. Section 64 provided a separate source of power for a general manager to delegate functions or powers to an employee of the council.
Was the council's delegation to the general manager invalid because it purported to have been made under s64?
The council's resolution of 13 February 2001 to delegate in accordance with the delegations register was made following a report to it by its Manager – Governance and Performance (Mr Trevor Jones). At the end of his report he recommended that the council proceed with the delegation in the way explained earlier in these reasons and the council did so. His report and recommendations were incorporated into the minutes of the council meeting that day.
Mr Jones' report correctly informed the council that the Local Government Act 1993 recognised that it would be impractical to refer to the council every issue that it had the power to deal with, so it permitted the council to delegate those powers under s22. A copy of the section was set out in the report to the council. The report pointed out that all of the powers described in the delegations register were being delegated by the council to the general manager. The report then explained that the Act also recognised that it would be impractical for the general manager alone to exercise all of those powers. The report went on to state that consequently, s64 of the Act provided what it did, and the provisions of the section were set out in the report.
A confusing aspect of the report may have arisen out of its failure to expressly state that although the general manager had power under s64 to delegate to an employee of the council with regard to any functions or powers delegated to the general manager by the council which the council authorised the general manager to delegate, the power of the general manager to delegate to a committee of the council of any functions or powers delegated by the council and which the council authorised the general manager to so delegate, came from s22.
On my count, 225 powers were delegated by the council to the general manager and the general manager was authorised to delegate 204 of those powers. The general manager was authorised to delegate 203 of those 204 powers to employees of the council who were identified by their offices but not by their names. The statutory source for the delegation of those 203 powers could only come from s64. The general manager was authorised to delegate the one remaining power, out of 204, to the committee rather than to an employee. The statutory source for the delegation of that one power came from s22(1).
Having regard to the fact that all except one of the sub-delegated powers were being delegated to employees of the council, it is not difficult to understand why the writer of the report concentrated on s64 as the source of the power of the general manager to delegate. Nevertheless, the report contained the provisions of s22(1). A councillor would have been able to read from them that the council had the power to delegate directly to the committee or indirectly, by delegating to the general manager with authority to delegate in turn to the committee.
It is possible that the members of council did not realise how confusing the subject was. It is possible that they misunderstood. The Court has no way of knowing. In any event, the council accepted the ultimate recommendations in the report, with some amendments, and passed the resolution to which I referred in par7 of these reasons. In so doing, the council made no reference to the sources of its powers.
It was submitted for the appellant to this Court (but not to the Tribunal or the learned judge) that because of the way the report to the council was drafted, the Court should find that the council passed its resolution of 13 February 2001 upon an assumption that its power to authorise the general manager to sub-delegate that one power to the committee was s64. I would not find that. The resolution gives no indication of what the councillors as a group considered was the source of the power. The report to them set out the statutory basis for the power. The councillors, or some of them, may well have understood it.
Even if the council misunderstood the statutory basis of the exercise of its power, it still had the power. Such a misunderstanding would not have been fatal to such exercise. Re J J T; Ex parte Victoria Legal Aid (1988) 72 ALJR 1141 at par40; Brown v West (1990) 169 CLR 195 at 203; Lockwood v The Commonwealth (1954) 90 CLR 177 at 184; Official Trustee in Bankruptcy v Byrne [1989] Tas R 1 at 18. There is nothing in the Local Government Act 1993 which leads to a contrary conclusion. See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at par93; V A W (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631 at pars32, 33.
Was the delegation invalid for uncertainty?
Under the Local Government Act 1993, s22(1), the council was authorised to delegate, with or without conditions, to a council committee, any of its functions or powers, subject to immaterial exceptions. Therefore, the council could have delegated its powers to determine matters of statutory land use planning directly to the Land Use Planning Committee. However, it did not do so, choosing instead to delegate such powers, in the terms of the resolution of 13 February 2001, to the general manager, at the same time authorising the general manager to delegate those powers to the committee.
It was submitted for the appellant that the purported delegation to the general manager of the council's powers "to determine those matters of statutory land use planning listed on the agenda for meetings of the Land Use Planning Committee" was invalid for uncertainty. The point was not taken by any of the grounds of appeal, but the respondents made no complaint about that. It was advanced by counsel for the appellant when dealing with ground (e).
It also appears that the point was not taken before the learned judge, although it was submitted for the appellant that what was sub-delegated, or purportedly sub-delegated to the committee was uncertain because the committee was empowered only in relation to matters "listed on the agenda for meetings of the Land Use Planning Committee". I say that because that is what the learned judge said was submitted. His Honour disagreed with the submission, pointing out that under s22(1) functions or powers could be delegated and sub-delegated "with or without conditions". His Honour considered that the words used in relation to agendas amounted to such a condition, one that required that no function or power given to the committee by way of sub-delegation was to be exercised unless it related to a matter listed on an agenda for one of its meetings.
On its face, the imposition of such a condition on the powers of the committee to determine particular matters seems a strange one, for common sense suggests that as a general rule the committee would have a formal agenda for its meetings and would deal with the matters on it. Nevertheless, I respectfully agree with the learned judge that a requirement that a matter be listed on the agenda of the committee before the committee might exercise its delegated power in relation to it, should be regarded merely as a condition of the exercise of the power.
I return to the submission by the appellant to this Court, that the relevant delegation to the general manager was also invalid for uncertainty. It was submitted that it was uncertain because it was left to someone, perhaps the general manager, perhaps not, to place the matter on the agenda for the committee before the general manager could exercise the delegated power.
However, I think the logic of the learned judge should similarly apply and that there was no uncertainty. The committee was a committee of the council and consisted of members of the council. The ultimate responsibility for planning matters rested with the council. The words of the delegation should be treated as a condition of the exercise by the general manager of the power, that the particular matter to which the exercise of the power related had to be listed on the agenda for a meeting of that committee. In that way, the committee would have the ability to at least monitor the exercise by the general manager of the delegated powers and perhaps also to provide the general manager with advice.
It was also submitted by the appellant (once again it was not a ground of appeal and it does not appear to have been submitted to the learned judge) that the delegation to the general manager was invalid because it left it to the general manager, or whoever set the agenda for the committee, to determine the ambit of the general manager's delegated powers. Reliance was placed on Ratnagopal v Attorney-General [1970] AC 974. However, once again, the submission is defeated by the fact that what the council did was delegate its powers to determine matters of statutory land use planning on condition that the matters were first listed on the agenda for a meeting of the committee.
Conclusion
I would dismiss the appeal.
File No 24/2008
JULIANNE DREWITT v RESOURCE MANAGEMENT
& PLANNING APPEAL TRIBUNAL and GLENORCHY CITY COUNCIL
AND EPOH INVESTMENTS PTY LTD
REASONS FOR JUDGMENT FULL COURT
SLICER J
19 November 2008
The first respondent, the Glenorchy City Council ("the Council"), granted a permit to the third respondent, Epoh Investments Pty Ltd ("Epoh") for the use and development of consulting rooms with variations to car parking requirements at a shopping centre in Glenorchy. The appellant appealed the decision to the Resource Management and Planning Appeal Tribunal ("the Tribunal") in accordance with the provisions of the Land Use Planning and Approvals Act 1993 ("LUPA"). The Tribunal refused the appeal although it varied some conditions and added one. The appellant sought judicial review as permitted by the Judicial Review Act 2000, and the Resource Management and Planning Appeal Tribunal Act 1993, both matters being heard concurrently. Review was denied ([2007] TASSC 11) and the appellant appealed to this Court.
The grounds of review claim error in law or in fact on the grounds that:
"(a)In determining that the Glenorchy City Council had the legal capacity, pursuant to Section 22 of the Local Government Act 1993, to delegate to its Land Use Planning Committee its statutory function of deciding development application 07-04472-01 (the Application) pursuant to Section 57 of the Land Use Planning & Approvals Act 1993;
(b)In determining that Section 22(l)(a) of the Local Government Act 1993 enabled the Glenorchy City Council to authorize a sub-delegation of its statutory function to decide the application pursuant to Section 57 of the Land Use Planning & Approvals Act 1993 absent compliance with Section 64 of the Local Government Act 1993;
(c)In determining that Section 22(l)(a) of the Local Government Act 1993 is the source of the power for the Glenorchy City Council to authorize a sub-delegation of its statutory function of deciding the application from its General Manager and to its Land Use Planning Committee;
(d)In determining that upon a proper construction of Council's resolution of 13 February 2001 that it had decided to exercise a power or function pursuant to Section 22(l)(a) of the Local Government Act 1993 to delegate its statutory function of deciding applications pursuant to Section 57 of the Land Use Planning & Approvals Act 1993 to its General Manager and then, in turn, to authorize that person to sub-delegate such powers to its Land Use Planning Committee otherwise than in accordance with the requirements of Section 64 of the Local Government Act 1993;
(e)In determining that upon a proper construction of the resolution of the Glenorchy City Council of 13 February 2001 that it had resolved to delegate its statutory function of deciding development applications pursuant to Section 57 of the Land Use Planning & Approvals Act 1993, to either its General Manager or, by authorization to sub-delegate, from that person to its Land Use Planning Committee;
(f)In finding that there was no evidence or other material as to whether or not a written instrument of delegation had been prepared and signed as required by Section 23AA(2)(b) of the Acts Interpretation Act 1931 and in the alternative in finding that even if no such instrument existed, the point was technical in nature only."
The grounds as stated replicate, in more detail, an original claim in the review applications, that the Tribunal had no jurisdiction to make its decision because of the invalidity of the original Council decision. On the hearing of this appeal, the Council provided more complete and unchallenged evidentiary documentation of delegation which met the complaint (f) of the notice of appeal and permits dismissal of this ground.
Form of delegation
The Council maintains a Delegations Register. Following a management restructure in 2000 - 2001, significant changes were made to the Register at the Council meeting held in February 2001. The proposal considered by the meeting was to permit specific delegations to nominated officers of the corporation, defined by category, of statutory or administrative responsibility or power. Examples of the form of delegation are those granted to the Manager – Planning and Delegation of Power:
"Power to grant permits with or without conditions pursuant to Section 57 of the Land Use Planning and Approvals Act 1993 for the following uses and developments which have discretionary (D) status under the Glenorchy Planning Scheme 1992 and for which no representations have been received.
…
8Power to amend a permit pursuant to Section 56(2) of the Land Use Planning and Approvals Act 1993, except where the amendment request relates to an aspect of the use and/or development which has been the subject, or result, of representations.
…
(10)(a) Power to grant permits with or without conditions, or refuse to grant permits pursuant to Section 57 or Section 58 of the Land Use Planning and Approvals Act 1993 where there is insufficient time for Council to determine the application and where the applicant has refused to grant an extension of time."
and to Planning Officers in a new grant of power:
" … to issue permits under Section 57 and 58 of the Land Use Planning and Approvals Act 1993 in the absence of the Senior Planner and in line with delegations 1 and 2 outlined to the Senior Planner."
The scheme in relation to statutory land use planning where representations had been made, differed. Delegation was granted to the Land Use Planning Committee, comprising councillors only, "To determine those matters of statutory land use planning listed on the agenda for meetings of the Land Use Planning Committee".
The decision here impugned was made by the Planning Committee. The corresponding power, intended to permit the General Manager to place items on the Committee's agenda was:
"Under the powers given by section 22 of the Local Government Act (1993), Council delegates all of the powers listed in this register to the General Manager and authorises the General Manager to further delegate these powers to the positions named."
The proposal paper stated that:
"It is important for Aldermen to note that all of the powers described in the accompanying document are being delegated by Council to the general manager."
but noted that "… just as the LG Act [Local Government Act] recognises that it would be impractical for Council to exercise all of the powers itself, it also recognises that it would be impractical for the General Manager alone to exercise all of these powers."
The Council accepted the proposal and resolved:
"(a)That all of the powers listed in the delegations register be delegated to the General Manager, with the exclusion of Attachment 3 which is pending further information.
(b)That the mayor be authorised to sign the delegations register as a true record of the powers that Council has delegated to the General Manager.
(c)That the General Manager is authorised to delegate to the positions shown in the register those powers that are listed under the positions."
The argument is, as advanced, that the General Manager was not empowered to further delegate power to the Committee by deciding which statutory land use planning matters ought be listed on the agenda of the Committee which, in turn, was a sub-committee of Council.
Statutory power and containment
The Local Government Act 1993 ("the Act"), s22, provides:
" (1) Subject to subsection (2), a council, in writing, may delegate with or without conditions to the general manager, controlling authority, a council committee or a special committee, any of its functions or powers under this or any other Act, other than —
(a)this power of delegation, unless authorized by the council; and
(b)the powers referred to in subsection (3).
(2) …
(3) A council must not delegate any of its powers relating to the following
…
(i) any other prescribed power."
The Act, s23, permits the establishment of council committees "to assist it in carrying out its functions under this or any other Act." The function of statutory land use planning is governed by the provisions of LUPA.
The Act, s64, provides for delegation by a General Manager in terms:
"The general manager, in writing, may delegate to an employee of the council —
(a)any functions or powers under this or any other Act, other than this power of delegation; and
(b)any functions or powers delegated by the council which the council authorized the general manager to delegate."
The appellant contends that this provision constrains the power of the General Manager permitting delegation only to the officers or employees of the corporation.
The Committee which made the challenged decision was exercising powers and responsibilities outlined by, and subject to, the requirements of LUPA. The Act, s20, requires the council of a municipal area to:
"20 — (1) …
(b)to facilitate and encourage the proper planning and development of the municipal area in the best interests of the community;
…
(f)to represent and promote the interests of the community;
(g)to provide for the peace, order and good government of the municipal area."
LUPA, by s6, permits delegation by a council, acting as a planning authority:
"(1) …
(2) …
(3) A planning authority may, by resolution, delegate any of its functions or powers under this Act other than this power of delegation to a person employed by the authority.
(4) A delegation may be made either generally or as otherwise provided by the instrument of delegation.
(5) Notwithstanding any delegation, a planning authority may continue to perform or exercise all or any of the functions or powers delegated.
(6) A function or power performed or exercised by a delegate has the same effect as if performed or exercised by a planning authority."
Subsections (3) and (6) permit the exercise of concurrent power.
The parties advance competing arguments as to the effect, combined or singly, of the Act, s64, and LUPA, s6. In considering any tension between the legislative provisions and their interpretation, regard ought be had to the specific objects and requirements of LUPA and the responsibility of a council as an elected body within a democratic process. In many instances land use planning issues involve an elected planning body in a process requiring it to have regard to the electors and the general community, and to determine specific proposals in a wider context of competing, but equally valid, interests (King v Forest Practices Tribunal [2008] TASSC 1; Hobart City Council v Resource Management & Planning Appeal Tribunal [2007] TASSC 99). The grant of a planning permit might have wider implications which are not the province of this Court, as does failure to make a decision within a prescribed time (LUPA, s59(2) and (3)).
Interpretation
The Act and LUPA both constrain sub-delegation. LUPA, s6, permits delegation by a council acting as a planning authority, to "a person employed by the authority", in this case the General Manager, but prohibits that person from further delegation. The Act, s22, permits a council, acting generally, to delegate power to its Committee or General Manager. In either case the General Manager has power. The Act, s64, restricts his power of further delegation to an employee of that council. LUPA might permit delegation of concurrent power, but the Act is more restrictive.
Two, but different, powers were afforded by Parliament which, while overlapping, dealt with different subject matters (Minister for Immigration v Nystrom (2006) 81 ALJR 1) which might be dealt with in some other or different course (R v Wallis (1949) 78 CLR 529). Constraint of power under one grant might render invalid an action taken in accordance with one more general (Anthony Hordern and Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1). LUPA, s6, provides constrained power. But such does not necessarily deprive the Tribunal of jurisdiction or necessarily render the Council decision invalid. But absent a valid decision by Council through delegation, the Tribunal lacked jurisdiction (Minister for Immigration v Bhardwaj (2002) 209 CLR 597). But the Tribunal was entitled (Attorney-General v Estcourt and the Wilderness Society Inc (1994) 4 Tas R 355) and required to determine whether it had jurisdiction. The Act permitted the Council to delegate to its Committee which, in turn, could not lawfully delegate to another (R v City of Tea Tree Gully (1984) 53 LGERA 370). In his reasons for judgment at par37, the learned primary judge concluded that there was "no conflict or inconsistency between the provisions of the Local Government Act and the LUPA Act, s6" and that the powers operated "concurrently with some overlapping".
His conclusion was that:
"A council may delegate its planning powers, and authorise the sub-delegation of them, in accordance with the provisions of either statute. A contrary interpretation would interfere with efficient administrative decision-making."
His Honour stated at par38:
"Counsel for the applicant submitted that the Local Government Act, s64, permits a general manager to sub-delegate a function or power only to 'an employee of the council', and that the committee was therefore not empowered to make the decision in question. I disagree. In my view ss22(1)(a) and 64(b) confer on councils two separate powers to authorise sub-delegation. Under s22(1), a council may delegate functions or powers to 'the general manager, controlling authority, a council committee or a special committee'. Although s64 deals with the sub-delegation of powers delegated to a general manager, there is no provision other than s22(1)(a) relating to the sub-delegation of powers by a controlling authority, a council committee or a special committee. It must follow that s22(1)(a) is the source of the power to authorise sub-delegation in respect of those bodies. It must follow that s22(1)(a), in its application to a general manager, is not concerned with an authorisation of sub-delegation pursuant to s64(b), but is a separate source of power pursuant to which a council may authorise a general manager to sub-delegate. I think it must follow that a general manager, when authorised by the council pursuant to s22(1)(a) to sub-delegate, may sub-delegate to a council committee."
The administrative efficacy of the scheme can be seen in the process in dealing with a land use planning application. An application once received would, through delegation, be referred to the General Manager. If no representations are made, it would as a matter of administrative procedure, be referred to the Manager – Environment Planning and Development, who is permitted by Delegations 9 – 11 to make amendments (LUPA, s56(2)), correct (LUPA, s55), or apply to the Tribunal for an order (LUPA, s64). Where no representations are made, the delegation permits the Senior Planner to grant permits with or without conditions, pursuant to LUPA, s57, for discretionary uses and developments (SP 2). The Manager – Planning and Development, has delegated power to initiate amendment to the planning scheme under LUPA, s34, (Delegation SP 4) and other like powers (Delegations 5 – 8). No specific delegation is stated for cases where representations are made. They would remain the province of the General Manager who by:
"… authority of Section 64 of the Local Government Act 1993 has delegated powers of Council directly to the position of:
Land Use Planning Committee
To determine those matters of statutory land use planning listed on the agenda for meetings of the Land Use Planning Committee."
If the General Manager does not place the particular application on the agenda, then power remains with the General Manager. If no decision is then made within the prescribed time, LUPA, s57 deems the application to have been granted (ss57 and 59). While administrative efficacy of a scheme is an important factor in the interpretation of the statutes, there remain other considerations. The primary power is exercised by Council as a planning authority required to fulfil functions, both substantive and procedural, by LUPA. That power is vested in a council, itself a statutory instrument, with many tasks afforded by the Act. But LUPA remains the source of power in the Council's dealing with a land use, planning or development matter.
The above does not resolve interpretation, but illustrates the nature of the delegations and shows the context of the decision-making (see Acts Interpretation Act 1931, s8A). Practice and integrity would result in contentious matters, especially those which had produced opposing representations being placed on the agenda. But that exercise remains discretionary. The General Manager could, consistent with the scheme, allow the matter to be determined through the operation of LUPA, s59. In doing so he would have exercised power. The placing of this matter on the agenda of the Committee was an exercise of that discretion. It was, in my opinion, a further delegation, precluded by the Act, s64. LUPA affords greater discretionary power, but neither permits sub-delegation. Here the respondents contend that the combination of powers permits the process adopted in the determination of Epoh's application, or at least the wider power afforded by LUPA ought prevail.
LUPA, s3, provides a definition for a planning authority as including a "council". The general proposition is stated in De Smith's Judicial Review, 6 ed, 2007 at 5.138, 5.156:
"A discretionary power must, in general, be exercised only by the public authority to which it has been committed. It is a well-known principle of law that when a power has been conferred to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another.
…
Where power to sub-delegate prescribed functions has been conferred by statute, strict requirements to the form of delegation must normally be observed. Delegation must therefore be conveyed in an authorised form to the designated authority and must identify sufficiently what are the functions thus delegated instead of leaving the sub-delegate to decide the ambit of his own authority."
See generally, R v City of Tea Tree Gully (supra).
In their joint judgment in Horden (supra), Gavan Duffy CJ and Dixon J, with whom Starke and Evatt JJ agreed, stated at 7 - 8:
"Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
…
An affirmative grant of such a power, so qualified, appears necessarily to imply a negative. It involves a denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision."
Here, the Council, in dealing with the application was exercising power afforded by LUPA, which confines the power of delegation (s6(3)). It was entitled to delegate power to "a person employed by the authority" other than the "power of delegation". It could not delegate wide discretionary power unless expressly empowered (R v Resource Planning & Development Commission; ex parte Hayward [2000] TASSC 40).
Concurrent Power
The Act, s22, prohibits the Council from delegating its power to delegate "unless authorised by the Council". It was entitled to authorise the Council Committee to determine land use planning applications. It was entitled to authorise the Planning Manager to do likewise. It might employ a method whereby each could exercise power on differing, but identified, forms of planning applications. It did so in relation to applications when "no representations were made". But the decision as to whether the Committee ought decide a particular matter was left to the General Manager without definition. Section 22(3) prevented the delegation of power relating to:
"(c) any other prescribed power."
The power it exercised was derived from LUPA which itself confined any delegation or sub-delegation. In delegating power to the General Manager, it permitted devolution through discretionary inclusion on the agenda of another creature of Council. The instrument of delegation (Nekon Pty Ltd & United Specialists Managers Pty Ltd v Hobart City Council [2004] TASSC 44) purported to be an exercise in accordance with s22, a basis accepted by the learned primary judge. The appellant's contention that recourse to any other power (LUPA, s6) is irrelevant, is not accepted. The application which is the subject of the appeal was in fact referred to a Committee of Council, a course permitted by LUPA, s6. Purported exercise of a power, not possessed, does not necessarily vitiate a decision if there exists another valid source of that power. It is the absence of power which renders the decision invalid (Dainford Ltd v Smith (1985) 155 CLR 342). This was not a case where reliance of one power alone creates "jurisdictional error" (Minister for Immigration v Bhardwaj (supra)). If the Tribunal had determined power from another source than that relied upon by Council, it would have obtained or retained jurisdiction. An alternate source of power preserves validity (VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; Gurubana Gunggandji People of Yarrabah v Great Barrier Reef Marine Park Authority [1999] FCA 437).
The power delegated was to determine applications for the grant of discretionary permits in accordance with LUPA, s57. The terms of delegation were not mandatory. The General Manager was permitted to refer the matter to the sub-committee or deal with it in some other way. The terms were not certain as to the circumstances in which that decision was to be made (Racecourse Co-Operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460).
Inconsistency and interpretation
There is a tension between the operation of the Act, ss22 and 64, and LUPA, s6. The legal effect of those provisions is not necessarily derived from their grammatical meaning. Two legislative schemes operate and it is necessary to determine their hierarchy and interrelationship in giving effect to the language of those provisions which maintain the unity of the statutory scheme.
The fact that each provision is within power does not make the decision made through their combination valid if there is a break in the nexus between the required procedures or, as here, it is broken through the requirements of the Act, s64. I adopt the proposition stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 that the preferred course, in interpretation, is to examine the purpose of the legislation, rather than attempting to distinguish between mandatory or directory characterisations (Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; Acts Interpretation Act, s81A). In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky (supra), their Honours stated at par93:
"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24. See also Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 161-162 per Gibbs J in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' (Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146 per Gummow J) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 226; Attorney-General (NSW); Ex Rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 102; 62 ALR 63 at 71; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26; 98 ALR 68 at 90-92. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang vCommissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377.) In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' Tasker v Fullwood [1978] 1 NSWLR 20 at 24."
The purpose here is to require accountability on the part of a planning authority, in confining the discretionary power of the General Manager to delegations to other employees of the corporation. The planning authority is authorised to delegate its power to its Committee. Both courses might be possible if the terms of referral to the Committee was certain. But they were not. The Council as an elected institution is responsible to its ratepayers, and the combination of delegated power to a Committee through an officer of the corporation must be considered in that context (Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171). The general power ought be construed to take into account limitation (Saraswati v R (1991) 172 CLR 1).
Certainty
Ground (e) claims error in that:
"(e)In determining that upon a proper construction of the resolution of the Glenorchy City Council of 13 February 2001 that it had resolved to delegate its statutory function of deciding development applications pursuant to Section 57 of the Land Use Planning & Approvals Act 1993, to either its General Manager or, by authorization to sub-delegate, from that person to its Land Use Planning Committee."
The form and wording of the delegation to the General Manager was uncertain in that it did not prescribe the criteria or nature of the matters which he is required to place on the agenda. The Council was not permitted to empower the delegate to decide the ambit of his authority. In doing so it created sub-delegation, a matter precluded by the legislation (Ratnagopal v Attorney-General [1970] AC 974; Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463). This ground was not argued before either the Tribunal or the learned primary judge. However, its basis was not based on fact which might have required the calling of different evidence at trial (Water Board v Moustakas (1994) 180 CLR 491) but related to the issue of validity raised on judicial review (Coulton v Holcombe (1986) 162 CLR 1).
Ground (e) ought be upheld.
Conclusion
Consistent with the reasons stated above, ground (a), as worded, ought be dismissed. The Council had legal capacity to delegate to its Committee its statutory function of deciding development applications. It was the method of delegation which renders the particular decision invalid. Ground (b) ought be upheld. The statement of reliance on the Act, s22(i)(a), alone does not render the decision invalid since, subject to ground (b), there existed concurrent power. Ground (c) ought be dismissed. Grounds (d) and (e) ought be upheld.
I would uphold the appeal.
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
TENNENT J
19 November 2008
I have had the opportunity to consider the detailed reasons of both Crawford CJ and Slicer J in this matter. With respect I agree with the reasoning of Crawford CJ and the conclusions he has reached.
I would also dismiss the appeal.
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