Epic Amber Pty Ltd v Glamorgan/Spring Bay Council (No 2)

[2000] TASSC 184

[2000] TASSC 184

CITATION:   Epic Amber Pty Ltd v Glamorgan/Spring Bay Council & Ors (No 2)

[2000] TASSC 184

PARTIES:  EPIC AMBER PTY LTD
  v

GLAMORGAN/SPRING BAY COUNCIL
TRUSSLER, Harry
FAHEY, Wallace
FAHEY, Marie
CRUSE, Leon Eric
CRUSE, Shirley Florence
BAILEY, Scott Timothy
YOUNG, Michelle Maree
WHITE, Yvonne
BAILEY, Andrew
WYLLIE, Dianne June

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 1/2000
DELIVERED ON:  22 December 2000
DELIVERED AT:  Hobart
HEARING DATES:  Written Submissions Only

29 August 2000

JUDGMENT OF:  Underwood J

CATCHWORDS:

Local Government - Town planning - Consent and approval of councils (development and like applications) - Applications - When consent authority applicant - Road zone - Whether consent of owner of land necessary.

Land Use Planning and Approvals Act 1993 (Tas), s52.
Aust Dig Local Government [188]

REPRESENTATION:

Counsel:
           Appellant:  K J Stanton
           First Respondent:  P G J Zeeman
           Second to Eleventh Respondents:       R W Pearce
Solicitors:
           Appellant:  Rae & Partners
           First Respondent:  Murdoch Clarke
           Second to Eleventh Respondents:       Douglas & Collins

Judgment Number:  [2000] TASSC 184
Number of Paragraphs:  11

Serial No 184/2000
File No LCA 1/2000

EPIC AMBER PTY LTD v GLAMORGAN/SPRING BAY COUNCIL, HARRY TRUSSLER, WALLACE FAHEY, MARIE FAHEY, LEON ERIC CRUSE, SHIRLEY FLORENCE CRUSE, SCOTT TIMOTHY BAILEY, MICHELLE MAREE YOUNG, YVONNE WHITE, ANDREW BAILEY and DIANNE JUNE WYLLIE (No 2)

REASONS FOR JUDGMENT  UNDERWOOD J

22 December 2000

1. In Epic Amber Pty Ltd v Glamorgan/Spring Bay Council & Ors [2000] TASSC 119, I construed the Municipality's Planning Scheme, in particular cl 8.15 which dealt with road zones. I reached the conclusion that notwithstanding a number of substantial problems concerning the interpretation of a number of the provisions of cl 8.15, the clear intention of the Scheme for cl 8.15 was "to provide a Code for all new accesses making them either permitted (conditionally or unconditionally) or discretionary".

1. On behalf of the appellant, Mr Stanton submitted that if I reached this conclusion, the appeal from the Resource Management and Planning Appeal Tribunal ("the Tribunal") should be allowed.  The basis of his submission was that as the appellant's application was for a permit to use its land as an exit onto Beattie Avenue and as this involved "minor roadworks" as defined by the Scheme, the Council had no option but to grant the permit application because minor roadworks was a permitted use, either conditionally or unconditionally.  Reliance was placed on the Land Use Planning and Approvals Act 1993 ("the Act"), s58(1) and (2), and the provisions of the Planning Scheme, cl 4.3, which is to the like effect.

1. However, the issue is not quite as simple as that.  I concluded my reasons for judgment with the following paragraph:

"Mr Stanton submitted that if I reached this conclusion, the appeal must be allowed, as the use is a permitted use.  However, that overlooks the provisions of the scheme, cl 4.3 which provides that there must be an application for a permit, even for a permitted use, which the council shall grant either conditionally or unconditionally.  Further, that submission overlooks the provisions of the scheme, cl 8.15.3 which provides that an application for a permit for a use or development in the Road zone requires the written approval of the road authority.  In this case, there was no written approval of the road authority.  What is the effect of that?  If the written approval of the municipality is required, is a refusal to give such approval a matter in respect of which there is an appeal?  Prima facie it would seem no.  These matters raise further difficulties of construction of the planning scheme which were not addressed by counsel upon the appeal to this Court.  Before concluding this appeal with a final order I invite counsel, and should he or she wish to do so, counsel for the municipality, to make submissions upon these matters."

1. Written submissions were filed on behalf of all parties, including, this time, the respondent Municipality.

1. The Tribunal took the view that because the appellant did not own the land within the road reserve, and because it did not have the consent of the owner of the road reserve, the application did not relate to any development in the road reserve. 

1. Having regard to my construction of the Scheme, cl 8.15, I am satisfied that the appellant's application was an application with respect to its land abutting into Beattie Avenue and the road reserve on which the applicant wished to carry out minor roadworks to create an access from the former to the latter. Did this application comply with the provisions of the Act, s52(1) which provides:

"52 ¾ (1)   If the applicant for a permit is not the owner of the land in respect of which the permit is required and a planning scheme or special planning order does not provide otherwise, an application is to ¾  

(a)be signed by the owner of the land; or

(b)be accompanied by the written permission of the owner to the making of the application."

This subsection is not absolute in its terms.  In cases where the applicant for a permit is not the owner of the land, the consent of that owner is only required if "a planning scheme … does not provide otherwise …".

1. In my view, the Glamorgan/Spring Bay Planning Scheme does otherwise so provide with respect to land in the road zone.  Clause 8.15.3 provides:

"The application for a permit for use or development in the Road zone requires the written approval of the Road Authority."

There is no similar requirement with respect to any of the other zones. In the case of other zones, the provisions of the Act, s52(1), apply. Having regard to the intention of the Scheme to legislate a Code for all accesses to roads, common sense dictates that consent for a development in the road zone should come from the authority responsible for maintaining that zone and not the owner of the fee simple. In this context it should be borne in mind that the Spring Bay/Glamorgan Council will not necessarily be the road authority in every case, although I understand it is the road authority in the case of Beattie Avenue. The applicant in this case did not obtain the written approval of the road authority. What is the effect of that?

1. The Act, s58(1) and (2) provides:

"58 ¾ (1)   This section applies to an application for a permit in respect of a use or development for which, under the provisions of a planning scheme or special planning order, a planning authority is bound to grant a permit either unconditionally or subject to conditions or restrictions.

(2)  If an application for a permit to which this section applies meets the requirements of the planning scheme to which the application relates, a planning authority must grant the application either unconditionally or subject to conditions or restrictions not later than the expiration of the period of ¾  

(a)where the application has been referred to relevant agencies, 60 days from the day on which the authority received the application or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 60 day period; and

(b)in any other case, 42 days from that day or such further period as is agreed to, in writing, by the authority and the applicant before the expiration of that 42 day period."

1. The Scheme, cl 4.3 also provides that if the application relates to a permitted use, an application for a permit shall be granted by the Council with or without conditions.  However, it seems to me that upon its proper construction, cl 8.15.3 makes the written approval of the road authority a condition precedent for the making of a valid application for a permit for a use that is permitted by the Scheme.  This puts the consent of the road authority in the same position as the consent of an owner with respect to all other zones.  If there is no consent then the application cannot be granted.  If this construction is not adopted, the requirement that the approval of the road authority must be obtained would have no force and effect.  In the same way, cl 8.15.10 requires that in the prescribed circumstances a traffic impact assessment is to be submitted with the application.  If there is no such assessment, the application for a permit cannot be granted.

1. There is nothing novel about requiring the local authority's consent to an application which it has to determine.  With respect to such consents, the New South Wales Court of Appeal said in Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181 at 186:

"If then the owner of land applies to a council for its consent as owner of the road to the erection of an advertising structure projecting over the road, the council does not have a right arbitrarily to withhold its consent as the ordinary owner of private land might do.  If the proposed development is one which ought to be approved, then the council ought to give its consent.  Its failure to do so simply because it wished to frustrate the right of the adjoining owner to obtain approval to a projecting structure would be a use of its power for an improper purpose, that is, it would be a mala fide abuse of power.  However it does not follow that the mala fide refusal of consent could be made the equivalent of a granting of consent, whatever remedies might be available to require the council to give its consent."

1. As the appellant's application was not accompanied by the consent of the road authority, as provided by the Planning Scheme, cl 8.15.3, the first named respondent was correctly refused to grant the permit and the Tribunal was correct to dismiss the appeal from that decision.  It follows that this appeal must also be dismissed.