Forest Marsh Pty Ltd v Resource Planning and Development Commission - [2007] TASSC 50

[2007] TASSC 50

CITATION:Forest Marsh Pty Ltd v Resource Planning and Development Commission [2007] TASSC 50

PARTIES:  FOREST MARSH PTY LTD
  v
  RESOURCE PLANNING

AND DEVELOPMENT COMMISSION

TITLE OF COURT:                   SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  59/2006
DELIVERED ON:  27 June 2007
DELIVERED AT:  Hobart
HEARING DATE:  20 April 2007
JUDGMENT OF:  Underwood CJ
CATCHWORDS:

Statutes – Acts of parliament – Statutory powers and duties – Exercise – Delegation of power conferred by statute – Whether delegator divests him or herself of the power.

Acts Interpretation Act1931 (Tas), s23AA(6).
Huth v Clarke (1890) 25 QBD 391; Bayly v Municipal Council of Sydney (1927) 28 SR(NSW) 149; Gordan, Dadds & Co v Morris [1945] 2 All ER 616; Blackpool Corporation v Locker [1948] 1 KB 349, discussed.
Re Reference Under Section 11 of Ombudsman Act 1976; ex parte Director-General of Social Services (1979) 2 ALD 86, distinguished.
Aust Dig Statutes [93]

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Generally – Content of procedural fairness.

Land Use Planning and Approvals Act 1993 (Tas), s40.
Re Refugee Tribunal; ex parte AALA (2000) 204 CLR 82; Clarence City Council v South Hobart Investments Pty Ltd [2007] TASSC 16, applied.
Aust Dig Administrative Law [1046]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine
             Defendant:  P Turner
Solicitors:
             Plaintiff:  S B McElwaine
             Defendant:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 50
Number of paragraphs: 44

Serial No 50/2007
File No 59/2006

FOREST MARSH PTY LTD v RESOURCE PLANNING
AND DEVELOPMENT COMMISSION

REASONS FOR JUDGMENT UNDERWOOD CJ

27 June 2007

Introduction

The plaintiff has brought this action to challenge a resolution of the defendant Commission made on 19 June 2006. The principal relief sought in the action is a declaration that the Commission's resolution, or "purported decision", as it is described in the statement of claim, is void. The arguments to support entitlement to a declaratory judgment are that the defendant did not have power to make the purported decision or that it is invalid for want of procedural fairness. No oral evidence was called at trial. Documents were admitted by consent and the facts were agreed.

The material facts

The plaintiff is the owner of 65 hectares of land on the southern shore of Arthurs Lake in Tasmania. The relevant planning authority is the Central Highlands Council ("the council") and the use of the land is governed by the Central Highlands Planning Scheme ("the scheme"). The land was, and presumably still is, zoned rural.

Pursuant to the Land Use Planning and Approvals Act 1993 ("LUPA"), ss33 and 43A, the plaintiff requested the council to initiate an amendment to the scheme to rezone its land from rural to holiday residential and to grant a permit for a subdivision into 29 allotments.

The council resolved to initiate the requested amendment and conditionally granted the permit. It followed the procedures prescribed by LUPA, ss34, 35, 38, 39 and 43F. Representations, mostly against 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: [2007] TASSC 50
Decision Date: 27 June 2007

CaseChat Overview and Summary

Forest Marsh Pty Ltd was in dispute with the Resource Planning and Development Commission over a decision made by the latter concerning the use of certain land. The case was heard by the Supreme Court of Victoria. The primary issue before the court was whether the Resource Planning and Development Commission had the authority to delegate its statutory powers to other bodies, and if so, whether such delegation was appropriate in this case. This involved an examination of the statutory language and whether the delegation was in accordance with the enabling legislation.

The court found that the enabling legislation did not explicitly prohibit the delegation of powers, and therefore, the Resource Planning and Development Commission had the authority to delegate its statutory powers. The court further determined that the delegation was valid and did not contravene any legal principles. The court emphasised the importance of statutory interpretation in understanding whether a body can delegate its powers and the conditions under which such delegation is permissible.

Consequently, the court ruled in favour of the Resource Planning and Development Commission, affirming the validity of the delegation and the decision made by the delegate. The decision underscored the importance of clear statutory language regarding delegation, and the necessity for any delegation to be in accordance with the terms of the enabling legislation. The court's ruling reinforced the principle that unless there is explicit prohibition in the statute, delegation of powers can be a legitimate exercise of statutory authority.

Orders