ex parte Arkless - [2003] TASSC 93

[2003] TASSC 93

CITATION:In the Matter of a Referral by the Resource Management and Planning Appeal Tribunal; ex parte Arkless & Anor [2003] TASSC 93

PARTIES: IN THE MATTER OF A REFERRAL BY THE

RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL; Ex Parte ARKLESS and the
HOBART CITY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M108/2003
DELIVERED ON:  2 October 2003
DELIVERED AT:  Hobart
HEARING DATES:  5 September 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Environment and Planning - Environmental Planning - Planning Schemes and Instruments - Tasmania - Other Matters - Land Use Planning and Approvals Act 1993, ss57, 58 - Whether they afford general discretion overriding planning instruments.

Robert Nettlefold Pty Ltd v Hobart City Council [2001] TASSC 120; D P & L J Krushka Pty Ltd v Peacock & Hobart City Council 92/1997; Von Witt v City of Hobart A4/1995, referred to.
Aust Dig Environment and Planning [52]

Environment and Planning - Development Control - Consents, Approvals and Permits - Conditions - Power to Impose - Land Use Planning and Approvals Act 1993, s51 - Power to impose conditions not unconstrained.

Doma v City of Hobart [1983] Tas R 132; Bathurst City Council v PWC Properties (1998) 72 ALJR 170; Ex Parte Ward [1973] Tas SR 25; Mison v Randwick Municipal Council (1991) 23 NSWLR 734, referred to.
Aust Dig Environment and Planning [217]

REPRESENTATION:

Counsel:
             Mr Arkless:  In Person
             Hobart City Council  S B McElwaine
Solicitors:
             Hobart City Council:  Simmons Wolfhagen

Judgment Number: [2003] TASSC 93
Number of Paragraphs: 22

Serial No 93/2003
File No M108/2003

IN THE MATTER OF A REFERRAL BY THE RESOURCE
MANAGEMENT AND PLANNING APPEAL TRIBUNAL;
Ex parte ARKLESS and the HOBART CITY COUNCIL

REASONS FOR JUDGMENT SLICER J

2 October 2003

The Resource Management and Planning Appeal Tribunal ("the Tribunal") has referred the following questions to this Court in accordance with the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"), s27:

"1 Whether the proposed development of a two-storey house at 83A Letitia Street North Hobart (the proposed development) is one to which (a) section 57, or (b) section 58, of Land Use Planning and Approvals Act 1993
2 Whether all development, as opposed to use, or land falling within the City of Hobart Planning Scheme 1982 is necessarily development to which section 57 above applies.
3 If the answer to question 1 (a) above is in the affirmative, whether the imposition of a permit condition reducing the height of the proposed house to a single storey, thereby making the permitted development substantially different to the proposed development, is within the power of the planning authority and the Tribunal."

During the hearing of the reference, Mr Arkless advised the Court that the proposed development had been withdrawn and replaced by a new owner by a building to which no objection was taken and was, in fact, in the course of construction. That information, not provided to the Court by the Tribunal,…

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: [2003] TASSC 93
Decision Date: 2 October 2003

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of ex parte Arkless was heard in response to a referral from the Resource Management and Planning Appeal Tribunal. The referral raised questions about the interpretation and application of the Land Use Planning and Approvals Act 1993, specifically concerning the discretion afforded to planning authorities in approving development applications and the imposition of conditions on such approvals. The primary legal issues revolved around whether the Act grants a general discretion to planning authorities that overrides specific provisions in planning schemes and whether the Tribunal has the power to impose conditions that significantly alter the nature of the proposed development.

The Court found that the Land Use Planning and Approvals Act does not provide for a general discretion that would override the specific provisions of planning schemes. Instead, the Act operates within the framework established by the planning schemes, which include detailed provisions and discretionary powers. The Court held that development, as distinct from use, is not necessarily subject to discretionary approval under the City of Hobart Planning Scheme 1982. The specific criteria and conditions outlined in the Planning Scheme must be followed, and any discretion exercised must be within the bounds of these provisions. Additionally, the Court noted that while the Act allows for the imposition of conditions on permits, these conditions must be relevant to the planning scheme and must not alter the fundamental nature of the development in a way that would be considered a substantial difference.

Given that the proposed development at issue had already been withdrawn and replaced with a new building that did not face objections, the Court determined that answering the referral questions was not necessary for the immediate case. However, the Court addressed the questions to provide guidance on broader planning issues, emphasizing the importance of adhering to the specific provisions of planning schemes and the limited nature of discretionary powers under the Act.

Orders