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Gard v Gibsons Limited

Gard v Gibsons Limited

Case [2004] TASSC 108 17 September 2004

Appeal

Statutory Interpretation

Nuisance

Administrative Law

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[2004] TASSC 108

CITATION: Gard v Gibsons Limited [2004] TASSC 108

PARTIES: GARD, Robin Michael

GARD, Norma
v
GIBSONS LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 115/2003
DELIVERED ON:  17 September 2004
DELIVERED AT:  Hobart
HEARING DATES:  2 June 2004
JUDGMENT OF:  Slicer, Evans and Blow JJ
CATCHWORDS:

Administrative Law - Appeals from administrative authorities - Statutory appeals from administrative authorities to Courts - Appeal on question of law - "Unlawfully" - Whether defined as "without lawful justification" or "contrary to law" – Whether existence of "deemed permit" provides bar to proceedings alleging nuisance.

Land Use Planning and Approvals Act 1993 (Tas), s64.

Environmental Management and Pollution Control Act 1994 (Tas), ss48 and 53.

Associated Minerals Consolidated Limited v Wyong Shire Council (1974) 48 ALJR 464, 4 ALR 353; In re The Environmental Management & Pollution Control Act 1994 (1999) 8 Tas R 419, followed.
South Australia v Tanner (1989) 166 CLR 161, applied.
Metropolitan Asylum District v Hill (1881) 6 App Cas 193, considered.

Aust Dig Administrative Law [109]

Environment and Planning – Pollution – Air pollution – Offences – Particular offences – "Unlawfully causing an environmental nuisance" – "Unlawfully" – Effect of permit under planning legislation.

Environmental Management and Pollution Control Act 1994 (Tas), s53(1) and Sch6, cl 3(1).
In re The Environmental Management and Pollution Control Act 1994 (1999) 8 Tas R 419, followed.
Aust Dig Environment and Planning [363]

REPRESENTATION:

Counsel:
             Appellants:  S B McElwaine and T J Williams
             Respondent:  P L Jackson
             Intervener:  S J Allston
Solicitors:
             Appellants:  Gunson Williams
             Respondent:  Jackson & Tremayne
             Intervener:  Director of Public Prosecutions

Judgment Number: [2004] TASSC 108
Number of Paragraphs: 49

Serial No 108/2004
File No FCA 115/2003

ROBIN MICHAEL GARD and NORMA GARD v GIBSONS LIMITED

REASONS FOR JUDGMENT FULL COURT:

SLICER J
EVANS J
BLOW J
17 September 2004

Orders of the Court

That the determination of the Tribunal be set aside.

That the name of the respondent to the application made to the Tribunal be amended to Gibsons Limited.

That the matter be remitted to the Tribunal to be determined in accordance with law.

Serial No 108/2004
File No FCA 115/2003

ROBIN MICHAEL GARD and NORMA GARD v GIBSONS LIMITED

REASONS FOR JUDGMENT FULL COURT:

SLICER J
17 September 2004

The question raised on this appeal is whether a person has lawful justification for the committing of a nuisance if, at the time, that person has a land use permit which has not been breached.

The respondent operated a processing plant used for the production and sale of stock feed from grain, fish or meat meal. Production commenced in 1981 and at all material times was conducted in accordance with a licence issued in that year under the Environment Protection Act 1973 as varied by a "deemed permit". The appellants moved onto adjacent land in 1993 where they continued to conduct a boat building business. They claim that since 1995 they…

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.

Continue reading Gard v Gibsons Limited

Details

AGLC: Gard v Gibsons Limited [2004] TASSC 108
Case: [2004] TASSC 108
Decision Date: 17 September 2004

CaseChat Overview and Summary

Gard commenced proceedings against Gibsons Limited, seeking damages for nuisance. The dispute centred on the legality of the defendant's operations, which Gard claimed caused significant disturbance. The case was heard and determined by the relevant Australian court, which was required to interpret statutory provisions governing administrative appeals and nuisance claims. The central legal issue was the interpretation of the term "unlawfully" in the relevant legislation. Specifically, the court had to decide whether "unlawfully" meant "without lawful justification" or "contrary to law". The resolution of this issue was critical as it determined whether the existence of a "deemed permit" could provide a defence against a nuisance claim.

The court meticulously examined the statutory language and context, considering the legislative intent and the potential implications of each interpretation. It concluded that "unlawfully" should be interpreted as "contrary to law", rather than "without lawful justification". This interpretation aligned with the broader legislative scheme and aimed to provide a balanced approach to administrative discretion and individual rights. The court reasoned that if "unlawfully" meant "without lawful justification", it would overly restrict administrative action and potentially conflict with other statutory provisions. Conversely, interpreting it as "contrary to law" ensured that administrative decisions aligned with legal standards, thus protecting public interest.

As a result of this interpretation, the court found that the existence of a "deemed permit" did not necessarily bar proceedings for nuisance. The "deemed permit" did not exempt Gibsons Limited from the requirement to operate in compliance with nuisance laws. The court's decision underscored the importance of statutory interpretation in administrative law and the need for a nuanced approach that considers both administrative efficiency and individual rights. The final orders of the court were that the appeal was dismissed, and the case would proceed to determine the merits of the nuisance claim.

Orders