Freeman v Resource Management and Planning Appeal Tribunal
[2013] TASSC 58
•4 October 2013
[2013] TASSC 58
COURT: SUPREME COURT OF TASMANIA
CITATION:Freeman v Resource Management and Planning Appeal Tribunal [2013] TASSC 58
PARTIES: FREEMAN, Pamela
v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
FILE NO: 892/2012
JUDGMENT
APPEALED FROM: C and D Black v Launceston City Council [2012] TASRMPAT 125
DELIVERED ON: 4 October 2013
DELIVERED AT: Hobart
HEARING DATE: 26 March 2013
JUDGMENT OF: Tennent J
CATCHWORDS:
Environment and Planning – Planning scheme and instruments – Tasmania – Other matters – Construction of Launceston Planning Scheme 1996 – Setback variations sought in rural residential zone – Matters affecting exercise of planning authority's discretion as to such setbacks.
Launceston Planning Scheme 1996, cls 4.21, 6(12), 6(34)(h), 26.
Land Use Planning and Approvals Act 1993 (Tas), Sch1, Pt2, cls(c) and (f).
Resource Management and Appeals Tribunal Act 1993 (Tas), s25.
Aust Dig Environment and Planning [52]
REPRESENTATION:
Counsel:
Appellant: M E O'Farrell SC
Respondents: S B McElwaine SC
Solicitors:
Appellant: Don Armstrong
Respondents: Shaun McElwaine + Associates
Judgment Number: [2013] TASSC 58
Number of paragraphs: 34
Serial No 58/2013
File No 892/2012
PAMELA FREEMAN v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
REASONS FOR JUDGMENT TENNENT J
4 October 2013
Charles and Dorothy Black ("the respondents") own land at 283 Windemere Road, Windemere, near Launceston. It is zoned Rural Residential under the Launceston Planning Scheme 1996 ("the Scheme"). They applied to the Launceston City Council ("the Council") for a permit to build a single dwelling on the land. The Council refused to grant a permit. The respondents appealed to the Resource Management and Planning Appeal Tribunal ("the tribunal") against that refusal. Ms Pamela Freeman ("the appellant") sought to be joined as a party to that appeal, and to be heard in opposition to it. On 16 August 2012, the tribunal set aside the decision of the Council, and determined that a permit be issued. It directed the Council and the respondents to prepare a schedule of conditions to be attached to the permit. It also gave leave to the appellant to be heard as to any proposed conditions.
On 26 September 2012, the tribunal directed the Council to issue a permit containing eight specified conditions. The appellant now appeals both decisions of the tribunal. The only parties heard on the appeal to this Court were the appellant and the respondents
Reasons for Council's refusal of permit
The tribunal, at par[2] of its decision of 16 August, outlined the bases for the Council's refusal of a permit. They were as follows:
"2 However the Council refused the permit. Its reasons for so doing, in their final form, were as follows:
'1Due to the lack of longer-term sustainable performance [of] the effluent disposal system, and lack of appropriate reserve area for the system to cater for resting/duplication and unforeseen circumstances, the proposed development does not adequately address point 34(h) of Clause 6 which requires [the] Council to consider whether the site has the capacity to absorb effluent.
2Point 2 of the Intent of the Rural Residential Zone states that lot sizes vary to cater for a range of housing needs and to take better account of site specific constraints and conditions. As the proposed dwelling requires a 220 m2 effluent disposal area and only a 92 m2 reserve area, the constraints and conditions of the lot (ie slope and lot size) have not been adequately considered and the proposal is inconsistent with the Zone Intent.
3The proposed development does not comply with performance requirement 1 of Clause 26.4.2 which requires infrastructure (including sewerage) to be sufficient to ensure that the health, safety and amenity of the occupiers or users of the development are not adversely affected. As it is deemed that the sewerage infrastructure is not sufficient to ensure the long-term servicing of the development, the amenity of the users of the development is not protected and compliance with PR1 of Clause 26.4.2 is not achieved.
4 Point 3 of the Intent of the Rural Residential Zone states that:
'The residential character of the zone is recognised ... amenity and environmental considerations will be significant factors in the exercise of this discretion.'
As the proposed effluent disposal system proposal minimum setbacks to the proposed dwelling and adjoining properties, it does not meet the objectives of AS1547:2000 and is inconsistent with Point 3 of the Intent of the Rural Residential Zone.
5The proposed effluent disposal system does not meet objective AS1547:2000 therefore Principle B of Objective 4.22.1 of the Planning Scheme (which states the following is not adhered to: [sic]
(b) Activities which may cause environmental harm should not be approved unless they can demonstrate adequate risk management systems will be put in place:"
In addition, the tribunal identified matters raised by the appellant in relation to amenity and compliance with performance criteria.
At pars[7] – [13] of the same decision, under the heading "Planning Controls", the tribunal set out various provisions of the Scheme and dealt with their impact on the respondents' application for a permit. The tribunal said:
"7 Part 26 of the Scheme deals with the standards applicable to the Rural Residential Zone. The Intent of that Zone is in the following terms:
'26.1 Intent of Zone
(1)The Rural Residential Zone identifies those areas which cater for housing development in a semi-rural environment with all lots to be capable of being connected to basic urban services of reticulated water, electricity and telephone;
(2)It is intended that lot sizes vary to cater for a range of housing needs and to take better account of site specific constraints and conditions; and
(3)The residential character of the zone is recognised and use provisions limit the range of non-residential land uses to those considered compatible with this prevailing residential character. Amenity and environmental considerations will be significant factors in the exercise of this discretion.'
It is beyond argument that a proposal for any dwelling (and this one in particular) in this zone is entirely consistent with that intent.
8 Clause 26.2 operates in such a way that a single dwelling within the Rural Residential Zone does not require a town planning permit. As has already been identified, in this instance though as the proposed construction of the building does not meet all of the compliance measures of Clause 26, a discretion to refuse the permit arises. Specifically the development requirements are not met in relation to setbacks from the street and setbacks from other boundaries. The exercise of the discretion is subject to, and controlled by, Clause 26.4 - Development Requirements – which relevantly provides:
'26.4 Development requirements
(1)For a single dwelling, a discretionary permit is required to vary any compliance provision.
Only the provision to be varied is discretionary.
(2)All development will be expected to satisfy any relevant development requirements.'
[emphasis added]
This provision means what it says: side setback variation is concerned with side setback variation and nothing else. Although the Council sought to rely upon infrastructure as a basis to refuse to relax the setback requirements infrastructure is dealt with elsewhere in this part of the Scheme and does not arise in this context. Certainly references to broad and vague concepts such as intent or objectives do not in some way allow of it to be considered again in this context.
9 So far as the actual issue of infrastructure is concerned Clause 26.4.2 provides as follows:
'26.4.2 Infrastructure
Infrastructure Available
PR1The available service infrastructure, which includes the road access, water supply, sewerage and stormwater drainage systems, shall be sufficient to ensure that the health, safety and amenity of the occupiers or users of the Development are not adversely affected.
CM1The site shall have frontage to a road maintained by the planning authority or other road authority.'
10 It is beyond question that CM1 (the compliance measure) is met. Mr Leon Murray, who in addition to appearing as an advocate for the Council during the appeal, gave evidence as a planner, said this was so. Since the compliance measure is met the performance requirement does not fall for consideration. All parties agreed (eventually) that this was so. It follows that the issue of whether or not the waste disposal system designed by Mr Wood, would or would not work is not a consideration in the context of this application for a planning permit and certainly no basis to refuse to grant the permit. The discretion does not arise because the relevant compliance measure is fully and unequivocally met. This disposes of all of the grounds relating to effluent disposal. It also means that a good deal of the material before the Tribunal was irrelevant.
11 Turning to the grounds dealing with effluent disposal it is enough to say of Ground 1 (which deals with point 30(h) of Clause 6) that that issue simply does not arise for consideration in the circumstances of this case. The Ground cannot succeed.
12 Ground 2 can be dealt with as briefly. The second point of the Intent of the Rural Residential Zone is concerned with subdivision applications. This is not a subdivision application. The ground fails.
13 Ground 4 is equally unmeritorious. Apart from the fact that the ground itself is internally inconsistent, mixing as it does concepts of effluent disposal with setback, it does not arise in any proper sense for consideration in the context of this case. This ground is not made out either."
At pars[15 – [19], the tribunal dealt with setback issues. It said:
"15 So far as the front setback is concerned the applicable compliance measure requires a front setback of 25 metres from the road. Even the most cursory inspection of the broader area surrounding the subject site reveals that not a single house complies with this setback requirement (Ms Freeman's property included). The Tribunal did not understand either the Council or Ms Freeman to seriously contest that this was not so, nor to seriously submit that the front setback discretion should not be exercised in favour of the applicants for the permit. To the extent that it is necessary the Tribunal accepts the conclusions expressed by Mr Ayers about this issue. But of fundamental importance is a recognition that in fact the proposal complies entirely with the applicable compliance measure CM2 in 26.4.1. This is because since whilst that compliance measure requires a setback of 25 metres in this area this proposal is entirely consistent with the exception dealing with Principle Buildings and Domestic or Other Buildings (and it is unnecessary to make a determination whether the proposal is a Principle or a Domestic building because in either case the exception applies). The front setback issue cannot be sustained. The Tribunal is well satisfied that the applicable compliance measure is met.
Side setback west
16 Relaxation of side setbacks is sought in relation to both the eastern and the western boundaries of the property. In fact the empirical requirements with respect to setback, if adhered to in relation to this block, would render the block sterile and unusable since the building envelope would be unusable. In addition, there would be significant adverse streetscape impacts as well, for even if anything could be erected it would be so out of keeping with the existing streetscape as to be prominent and unsightly. That is as it may be.
17 So far as the relaxation of setback on the western boundary is concerned no material is advanced that would allow of a conclusion that it was inappropriate to relax that setback and there was material, which the Tribunal accepts, from both Mr Ayers and Mr Murray, to suggest that the exercise of the discretion is wholly appropriate in the circumstances of this case. The Tribunal is well satisfied that is so.
Rear setback
18 Relaxation of the rear setback from 10 metres to 7 metres was sought. The view offered by Ms Green that in some way this would have a significant amenity impact upon the property at 281 Windermere Road is not able to be sustained by objective evidence. The Tribunal prefers the evidence of Mr Ayers about this matter.
Side setback east
19 Again the only issue is whether or not a relaxation of the side setback on the eastern boundary of the lot will result in a significant loss of amenity on the adjacent site. Again there is no doubt whatsoever in the Tribunal's mind that there will be no significant loss of amenity (the test in the Scheme) on lot 281. When considerations such as view, outlook, overshadowing, and visual and acoustic privacy are concerned it is simply not the case that there will be any particular impact let alone an impact which might be described significant as a result of a relaxation of the setback. The separate physical separation between the houses will be more than adequate. The Tribunal accepts and prefers the evidence of Mr Ayers about this issue (which was also supported by Mr Murray) and rejects the views offered by the planner called by the Party Joined. That opinion evidence does not stand objective scrutiny. In addition the Tribunal has regrettably and reluctantly come to the conclusion that the planner's evidence on her admission in cross-examination was crafted to support the case of the party by whom she was called. Such is not the role of the expert witness. It is worth remembering that the expert's first duty is to the Tribunal. An expert is not an advocate in a party's cause. To act thus is to adopt a partisan role. The assumption of such a role will only diminish the persuasiveness and objectivity of that evidence. It did in this case."
In the second decision of the tribunal, which dealt with the conditions to be imposed on any issued permit, the tribunal determined that conditions numbered one to seven as identified by the Council and the respondents should be imposed. It then dealt with two further conditions sought by the appellant. These related to screening of decks and vegetation screening. The tribunal determined that the first was not appropriate, but that the second was.
Grounds of appeal
All the grounds of appeal to this Court from the tribunal's decision related, in different ways, to the interrelationship between the discretion of a planning authority relating to setbacks and issues of effluent disposal. The grounds are as follows, the respondent referred to in them being the tribunal:
"The grounds of appeal are that the respondent:
(a)Erred in law in finding, at paragraph 4 of the first decision, that the Council's belief that the effluent disposal even fell to be considered was wrong and based upon a misunderstanding of the Launceston Planning Scheme 1996 ('the Planning Scheme').
(b)Erred in law in finding, at paragraph 8 of the first decision, that the exercise of the side boundary setback discretion in clause 26.4, PR3 of the Planning Scheme excludes a consideration of part 6 of the Planning Scheme.
(c)Erred in law in finding, at paragraph 11 of the first decision, that the issue of effluent disposal did not arise for consideration in the circumstances of this case.
(d)Erred in law in failing to consider, in either the first decision or the second decision, the submissions made on behalf of the joined party, the appellant herein, regarding the connection between the setback discretions sought by the proposal and the disposal of effluent on the site.
(e)Erred in law in failing to provide in either the first decision or the second decision any reasons or any sufficient reasons for rejecting the submissions made on behalf of the joined party, the appellant herein, regarding the connection between the setback discretions sought by the proposal and the disposal of effluent on the site."
Nature of appeal to this Court
An appeal to this Court from a decision of the tribunal may only be made on a point of law: Resource Management and Appeals Tribunal Act 1993, s25. No issue arises to the effect that the grounds of appeal do not relate to asserted errors of law.
The Scheme and its impact on the respondents' application for a permit
Clause 26 of the Scheme deals with the Rural Residential Zone. Clause 26.1 provides for the "Intent of Zone" and is set out in par[5] of these reasons.
Clause 26.2 is entitled "Use of land". It contains a table in which there are two columns. The first is headed "Use", and the second is headed "Condition or restriction to be met". There are then four headings, "Permitted (No Permit Required) (P1)", "Permitted (Permit Required) (P)", "Discretionary Permit (D)" and "Prohibited (X)". Under the first heading relating to permitted uses, the use "Single Dwelling" appears. The condition to be met is "where reticulated water is available". In the present case, reticulated water was available and, absent any other considerations, a permit was not required.
Clause 26.3 is entitled "Development of land". There is again a table with two columns. The first is headed "Development", and the second is headed "Condition or restriction to be met". There are then the same four headings as described in the preceding paragraph. Under the category "Permitted (No Permit Required) (P1)", there appears in the first column the words "Construction of a building". Beside that, in the condition column, are the words, "Must be a single dwelling which meets the Compliance Measures of Clause 26.4". The respondents' application was to enable them to construct a single dwelling. It follows that it had to meet the "Compliance Measures of Clause 26.4".
Clause 26.4 is entitled "Development requirements". The content of the opening paragraphs are set out at par[5] of these reasons. The remainder of cl 26.4 is divided into two parts. Clause 26.4.1 deals with the "Development Envelope", and cl 26.4.2 deals with "Infrastructure". There were performance requirements and compliance measures for each issue under the headings "Development Envelope" and "Infrastructure". As a consequence of cl 26.3, the respondents' application had to comply with each of the compliance measures in cl 26.4. The effect of the opening point under the heading "Development Requirements" was that, if the respondents sought to vary any compliance measure, they required a permit, and it became a discretionary permit to the extent of the particular variation sought. As to point two, the development proposed by the respondents would be expected to satisfy "any relevant development requirements".
The respondents sought to vary the setback requirements. In all other respects, their application complied with the compliance measures set out in cl 26.4.
The issue
The issue raised by this appeal is whether a planning authority is required to consider the adequacy of a proposed effluent disposal system when exercising its discretion to vary setback requirements.
The appellant's contentions
In his written submissions, counsel for the appellant set out the following contentions:
"20On a reading of the Scheme as a whole, the provision of adequate sewerage infrastructure is a clear objective: cl 4.21, Part 6, cl(34)(h). This requirement is strengthened in the Rural Residential Zone by the intents that amenity and environmental factors are significant: cl26.1.
21The provisions of the Land Use Planning and Approvals Act 1993, Schedule 1, Part 2, cls (c) and (f) are also relevant. See also the Scheme, Part 6, cl (12)
22It is submitted that the Tribunal did not read the Scheme as a whole. Its focus was on specific provisions of the Scheme.
23It interpreted the phrase 'only the provision to be varied is discretionary' in cl26.4(1) as meaning that the side setback variation is concerned with the side setback variation and nothing else. This is a non sequitur.
24It is contended that the phrase means that the exercise of the discretion to vary a setback is confined to the particular setback at hand. However, it does not address the issue of what informs the discretion to vary the setback. The discretionary considerations will depend on the scope and meaning of the Scheme as a whole.
25It is submitted that the Tribunal's view of cl26.1(1) infected the way in which it approached its task.
26The connection between the footprint of a development on land with setback requirements is obvious. In the Rural Residential Zone it is to allow houses of varying sizes to be built in accordance with the specific site considerations. Effluent disposal is clearly a consideration for this site. The setback requirements ought not be relaxed in a way that cuts down that consideration.
27The Tribunal found that because cl26.4.2 CM1 was met, the question of whether the effluent disposal system was sufficient was 'not a consideration in this context.'
28The surprising effect of this finding is that provided land in the Rural Residential Zone has frontage to a road maintained by the planning authority, or other road authority, an operational effluent disposal system is no longer a specific site consideration. On a reading of the Scheme as a whole, that cannot be correct.
29It is accepted that CM1 is intended as a prescriptive measure, which, if met, allows a developer to proceed with certainty. But it is only one of the measures which must be met.
30Merely because there is compliance with CM1 does not mean that the discretion to relax a setback requirement should remain uninformed by the intent of the scheme to have adequate effluent infrastructure. The discretion is more likely to be exercised rationally if the effluent disposal requirements for the land can be met.
31It is contended that:
(a) each other compliance measure (CM) for infrastructure for zones in the Scheme requires, amongst other things, adequate provision for water and sewerage. If the compliance measure is not met, the performance requirement (PR) for infrastructure of each other zone requires adequate provision for water and sewerage. For some reason, CM1 in clause 26.4.2 provides only for road frontage as a requirement. This must have been an oversight;
(b) it is necessary to read CM1 harmoniously with the other provisions of the Scheme, so that there is support for the objectives and intents;
(c) alternatively, just because CM1 is satisfied within its terms, the other provisions of the Scheme informing the discretion to vary a setback ought not be excluded."
Discussion in relation to provisions identified by the appellant
The Council's reasons for refusing the permit, as identified in the tribunal's reasons, were all connected with the effluent disposal system. Only one made any reference to the issue of setbacks, and, with respect, the reference made no sense. The appellant, in effect, argued that the Council's approach was correct, and that it was required to consider issues arising in relation to effluent disposal when exercising its discretion as to setbacks. He submitted that the requirement in cl 26.4.1 that "only the provision to be varied is discretionary" did not address the issue of what informed the discretion to vary a setback, and that "discretionary considerations will depend on the scope and meaning of the Scheme as a whole". The tribunal, it was argued, focused on the specific provisions as to setbacks, and did not read the Scheme as a whole. That was where it fell into error.
It is necessary therefore to look at the provisions identified by counsel for the appellant as being those which should persuade the Court issues of effluent disposal were relevant to any discretion to be exercised in relation to setbacks. Counsel specifically referred to cl 4.21, cl 6(34)(h), cl 6(12) and cl 26.1 of the Scheme and the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), Sch1, Pt2, cls (c ) and (f).
Clause 4 of the Scheme is entitled "Planning Scheme Objectives & Principles". Clause 4.21 relevantly provides:
"4.21 INFRASTRUCTURE
Objective 4.21.1:
To ensure the provision of infrastructure in accordance with the nature and intensity of use and development to achieve acceptable levels of safety, health and efficiencyPrinciples:
Principles to achieve this objective:
Water/sewerage
a) Promote new development in areas where the infrastructure is adequate or has spare capacity and its extension or upgrading is cost-effective.
b) Restrict development opportunities in areas with servicing constraints.
c) Protect existing infrastructure from inappropriate adjacent use & development.d) All new lots in urban areas to be provided with reticulated water and sewerage."
Counsel for the appellant focused on point (b) to support his contention that this provision did not just deal with new developments as contended by counsel for the respondents. In my view, it is not appropriate to focus on one part only of the principles because to do so produces an inexplicable inconsistency with the rest of those listed. The provision needs to be read as a whole. If regard is had to all the principles to achieve the objective, it is clear that they are directed to ensuring that, where new developments are proposed, the existing infrastructure is adequate, development is restricted where it is not, existing infrastructure is protected and new lots in urban, not rural areas, are provided with reticulated water and sewerage. The respondents' application related to the construction of a single dwelling on an existing block in a rural residential zone. I am not satisfied this clause has any role to play in this argument.
As to cl 6, it is entitled "Consideration of applications". It provides:
"Before deciding on an application, or a condition or restriction which a permit or discretionary permit should be subject to, the planning authority may consider any of the following matters, as appropriate, ..."
Clause 6(12) contains one of the matters which may be considered, and cl 6(34)(h) contains another. The former appears under the heading "Strategic plans, policies and objectives" and provides:
"Objectives of the resource management and planning system of Tasmania and objectives of the planning process established by the Land Use Planning and Approvals Act 1993."
Save for the reference to those parts of the LUPA Act extracted at par[24] of these reasons, no other particular provision in that Act was identified as being relevant.
Clause 6(34)(h) appears under the heading "Land capability and constraints". This may be considered where appropriate if any part of the land is subject to "the capacity of the land to absorb effluents".
As to the impact of cl 6(34)(h), the Council was required to exercise a discretion as to whether or not it permitted setbacks. No compliance measure for the particular zone it was dealing with required it to consider, at the stage of the consideration of the initial permit, the adequacy or otherwise of the proposed effluent disposal system. Indeed, not even the performance requirements required it to do so. The performance requirement in cl 26.4.2 deals with "available" infrastructure, and not new systems for the particular block. Further, as counsel for the respondents pointed out, the respondents were required, if they obtained a permit to construct their dwelling, to also have a building and a plumbing permit before they could commence work. The Building Act 2000, s77, specifically provides that a plumber must not carry out work in relation to the type of system proposed by the respondents without a special plumbing permit. Quite clearly at that point, the efficacy or otherwise of the system proposed would be examined. I am unable to see how it can be said that cl 6(34)(h) imposes a requirement for the Council to consider the adequacy of an effluent disposal system when considering setbacks.
As to the impact of cl 26.1, intent number two makes no reference at all to the impact of effluent disposal systems on anything. A common sense reading of it also suggests it is directed at allowing for different size lots rather than perhaps a regimented size as one might expect in a subdivision. As to that numbered three, a plain reading of that indicates that it deals with maintaining the residential character of the zone, and limiting the range of non-residential uses. In that context, amenity and environmental considerations will be significant. The proposal under consideration was for a residential use. There was no need to consider any question of limiting a non-residential use, and needing to consider issues of amenity and environmental considerations for that purpose.
As to Sch1, Pt2 of the LUPA Act, this provides:
"The objectives of the planning process established by this Act are, in support of the objectives set out in Part 1 of this Schedule –
(a) …
(b) ….
(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and
(d) …
(e) …
(f) to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania; and …"
With respect, neither of the statements extracted above achieve, in my view, what counsel for the appellant suggests they do. I am not persuaded that there is anything in those general statements which suggests they should, in some ill-defined way, override the specific requirements of those parts of the Scheme which deal with applications in rural residential zones.
Discussion generally
Clause 26.3 is unambiguous. If an application for the construction of a dwelling is for a single dwelling which meets compliance measures in cl 26.4, then no permit is required. The compliance measures in cl 26.4 are under two separate headings, development envelope and infrastructure. There is no dispute that the compliance measure under the heading "Infrastructure" (extracted at par[5] of these reasons) was met. It was the fact that the compliance measures in relation to setbacks, which appeared under the development envelope heading, were not met which meant a discretion had to be exercised in relation to them.
Counsel for the appellant in his oral submission submitted that, in dealing with the performance requirements and compliance measures in cl 26.4, the planning authority was required to consider the performance criteria in the event that a compliance measure was not met. The tribunal had noted at par[10] of its reasons that the parties agreed during the course of the hearing that, if the compliance measure was met, the performance requirement did not fall for consideration. There was no argument with either proposition on the appeal. The effect of the propositions is however that the performance requirement relating to infrastructure did not fall to be considered at all, while those relating to setbacks did. I am unable to see how that necessarily assists the appellant with her argument on this appeal.
Another matter raised by counsel for the appellant was raised in par31(a) of his written contentions. It was suggested that there must have been an oversight in the drafting of the compliance measure in cl 26.4.2, because each other compliance measure for infrastructure for zones in the Scheme required "adequate provision for water and sewerage" and, in circumstances where the performance requirement had to be addressed because a compliance measure was not satisfied, the performance requirement in each other zone required "adequate provision for water and sewerage". I have been through the relevant parts of the Scheme. Neither the performance requirement nor compliance measure for infrastructure in any other zone require that there be "adequate provision for water and sewerage".
As a starting point, the performance requirement in cl 26.4.2 does not have the provision as asserted. It deals with "available service infrastructure" which includes "the road access, water supply, sewerage and stormwater drainage systems". The first point to be made is that requirement refers to available services. A plain reading of that must mean those services which are already there. It also uses the term "includes". It does not say that those services are necessarily available, and must be made available if they are not already there.
A review of the other performance requirements shows that they all deal with "available" infrastructure, and require that it be sufficient to ensure health, safety and amenity of occupiers or users. There is no reason why the same construction as applied to cl 26.4.2 should not apply to those.
As to compliance measures, those for the four residential zones all provide that, in addition to road frontage, reticulated water and sewerage services shall be connected to the development. As to the five business zones, the compliance measure for infrastructure in the Central Business Zone is that, "The development shall be provided with reticulated water and sewerage". As to the Business Zone, the compliance measure deal with road frontage and that the development "shall be provided with reticulated water and sewerage services". As to the District Business Zone, the Local Business Zone and the Commercial Zone, the compliance measure is the same as for the Business Zone. There are then two industrial zones. Both have the same requirement as for the Business Zone. There are five rural zones which include the rural residential zone relevant here. As to the Village Zone, it has the same compliance measure as for the Business Zone. The Rural Zone specifically deals with on-site disposal. I have not dealt with the remaining zones because of their nature.
While it is accepted that most zones require the connection of reticulated water and sewerage systems, it is not surprising that where both services already exist, there will be a requirement they be connected. In the present case, as I understand it, there is no available infrastructure for sewerage which can be connected to the block. It would not therefore make sense that the compliance measure for the zone in which this development is sought to be made would be the same as in those areas where such infrastructure does exist. There is reticulated water although nothing in the Council's reasons for refusal address any inadequacy in water supply. At best it might be argued that, because there is no available sewerage infrastructure, a compliance measure in terms of that for the Rural Zone might have been appropriate. However, the drafters of the Scheme have not put in such a measure, and it is not for this Court to do so for the purpose of concluding that the adequacy of a proposed effluent disposal system is relevant to the exercise of a discretion as to setbacks. That is particularly so where, even if the permit in this matter is granted, that does not exclude a consideration of the adequacy of the effluent disposal system before any house is built.
The appellant's approach to this appeal requires that the Court interpret the relevant parts of the Scheme by having regard to clauses which largely have little or nothing to do with an application in a Rural Residential Zone and, to an extent, which requires the Court to insert material because of an asserted "oversight".
I am not satisfied that the approach adopted by the tribunal has been shown to be incorrect in any way, and that the tribunal has made any of the errors asserted. The appeal is dismissed.
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