Gen 3 Developments Pty Ltd v Devonport City Council

[2013] TASSC 6

[2013] TASSC 6

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Gen 3 Developments Pty Ltd v Devonport City Council [2013] TASSC 6

PARTIES:  GEN 3 DEVELOPMENTS PTY LTD
  as trustee of the Tasfresh Trust, and
  R W SQUIBB & SONS PTY LTD
  v

DEVONPORT CITY COUNCIL

GEN 3 DEVELOPMENTS PTY LTD
  as trustee of the Tasfresh Trust, and
  R W SQUIBB & SONS PTY LTD
  v
  RESOURCE MANAGEMENT
  AND PLANNING APPEAL TRIBUNAL,
  DEVONPORT CITY COUNCIL

FILE NOS:  451/2012

446/2012

JUDGMENT

APPEALED FROM:  Devonport City Council v RW Squibb & Sons Pty Ltd [2012] TASRMPAT 73

DELIVERED ON:  27 February 2013
DELIVERED AT:  Hobart
HEARING DATE:  13 December 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Environment and Planning – Environmental planning – Planning and development prosecutions – Contrary to planning scheme – Allowing result of prohibited act of development to remain on land – Whether commencement of a use or development, or using or undertaking development, or doing an act.

Land Use Planning and Approvals Act 1993 (Tas), ss51(1), 63(2).
Aust Dig Environment and Planning [266]

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Other matters – Power to require respondent to make good contravention of statute – Two respondents committing successive contraventions – Order requiring both to make good all contraventions – Delegation of decision-making to council.

Acts Interpretation Act 1931 (Tas), s24(d).
Land Use Planning and Approvals Act 1993 (Tas), s64(3)(e).
Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248; Scott v Wollongong City Council (1992) 75 LGRA 112, referred to.
Aust Dig Environment and Planning [60]

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Supreme Court – Appeal from injunctive order of Resource Management and Planning Appeal Tribunal – Nature of appeal.

Land Use Planning and Approvals Act 1993 (Tas), s65(1).
In Re the Medical Act 1959 [1973] Tas SR 43, followed.
Aust Dig Environment and Planning [601]

REPRESENTATION:

Counsel:
             Appellants/Applicants:  M E O'Farrell SC
             Devonport City Council:                S B McElwaine
             RMPAT:  No appearance
Solicitors:
             Appellants/Applicants:  Bartletts
             Devonport City Council:                Sean McElwaine + Associates
             RMPAT:  No appearance

Judgment Number:  [2013] TASSC 6
Number of paragraphs:  53

Serial No 6/2013
File Nos 451/2012

446/2012

GEN 3 DEVELOPMENTS PTY LTD as trustee of the Tasfresh Trust
and R W SQUIBB & SONS PTY LTD v DEVONPORT CITY COUNCIL;
GEN 3 DEVELOPMENTS PTY LTD as trustee of the Tasfresh Trust
and R W SQUIBB & SONS PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL and DEVONPORT CITY COUNCIL

REASONS FOR JUDGMENT  BLOW J

27 February 2013

1. These reasons relate to two proceedings – an appeal under the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s65, and an application under the Judicial Review Act 2000. Each of these proceedings was instituted by two companies – Gen 3 Developments Pty Ltd (in its capacity as trustee of the Tasfresh Trust) ("Gen 3"), and R W Squibb & Sons Pty Ltd ("RWSS"). Both companies are controlled by members of the Squibb family. I will treat the appeal as the principal proceeding, and will therefore refer to those companies as the appellants. The appellants are aggrieved by injunctive orders made by the Resource Management and Planning Appeal Tribunal under s64 of the LUPA Act in proceedings instituted by the Devonport City Council. In particular, they are aggrieved by orders requiring them to rehabilitate certain land by removing landfill and reinstating vegetation.

1. The tribunal was constituted by its chairman, Mr S J Cooper, and two other members, Prof J C Webster and Mr M E Ball.  The proceedings before the tribunal concerned three parcels of land at Spreyton, namely 65 – 71 Mersey Main Road, 77 Mersey Main Road, and 14 Sheffield Road.  The tribunal made orders by consent in relation to the Sheffield Road property. Insofar as the tribunal's orders concern that property, they are not challenged in these proceedings.

1. Until 23 May 2011, the Mersey Main Road properties were owned by RWSS. On that date RWSS entered into a contract for the sale of those properties to Gen 3. Gen 3 subsequently completed its purchase and took possession of the properties. On 16 June 2011, the council applied for orders under s64, naming only RWSS as a respondent. Gen 3 was subsequently added as a respondent to those proceedings. On 11 October 2011, while the proceedings were pending, Gen 3 became the registered proprietor of the properties. On 16 May 2012, the tribunal made the orders to which these proceedings relate.

1. In accordance with the usual practice, the tribunal was named as a respondent to the application under the Judicial Review Act, but not the s65 appeal. It filed a notice of submission under the Supreme Court Rules 2000, r777G, and took no part in the proceedings.

1. At the hearing before the tribunal, it was common ground that, on the land in question, vegetation had been removed and landfill dumped, some of it into a creek; that those activities required a planning permit under s57 of the LUPA Act because of requirements of the Devonport and Environs Planning Scheme 1984; and that there was no such permit as to either of the Mersey Main Road properties when those activities took place. The tribunal relied on evidence from a council officer, Mr Harpley, and on evidence from the sole director of Gen 3, Mr Nigel Squibb.

1. The tribunal made ten orders.  Order no 1 restrained RWSS, Gen 3, and their servants or agents from "carrying out land filling, earthworks and vegetation removal" on the relevant land unless and until the council issued a permit authorising such works.  Order no 2 required RWSS and Gen 3, on or before 29 September 2012, "to rehabilitate the Mersey [Main] Road land by removing landfill and reinstating land and/or vegetation in accordance with a report from a suitably qualified person approved of by the Applicant [ie the council], and to a scope and scale also approved of by the Applicant."

1. The notice of appeal sets out ten grounds of appeal, but ground 4 was abandoned.  The remaining grounds assert that the tribunal made various errors, as follows:

· That it failed to make findings as to any contraventions of the LUPA Act (grounds 1 and 2).

· That it made orders against Gen 3 when there was no evidence that Gen 3 had contravened the LUPA Act (grounds 3 and 7).

·     That it erred in failing to take into account the fact that RWSS no longer had ownership, possession or control of the relevant land, so as to allow it to make good a contravention or default (ground 5).

·     That it erred in delegating to the council the roles of decision-making, approval and supervision in relation to the remedial works (ground 6).

·     That it erred in failing to take into account the ownership of the Mersey Main Road land (ground 8).

·     That it erred in taking into account a permit of 17 October 2011, which applied only to the Sheffield Road land (ground 9).

·     That it failed to give proper reasons for its decision (ground 10).

Nature of the appeal under s65(1)

1. Under the Resource Management Planning and Appeal Tribunal Act 1993 ("the RMPAT Act"), s25(1), there is a right of appeal to this Court from a decision of the tribunal "on a question of law". A separate right of appeal, not expressed to be limited to questions of law, is conferred by s65(1) of the LUPA Act. That subsection reads as follows:

"(1)   Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against —  

(a) an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 64; or

(b)  a decision by the Appeal Tribunal not to make an order under that section."

1. The Supreme Court Rules contain provisions as to appeals from statutory tribunals in rr701 – 711 inclusive.  By virtue of rr704 and 709, the Court has all the powers conferred on the Court by r693, which applies to appeals from inferior courts, as if the tribunal were an inferior court, the tribunal proceedings were a trial, and the tribunal's decision were a judgment.  Rule 693(3) empowers the Court to "draw any inference of fact that might have been drawn by the inferior court". The scope of the orders that the Court may make in disposing of an appeal is governed by r693(7) and (8).  Those subrules provide as follows:

"(7)   The Court or judge may make any order with respect to an appeal from an inferior court which may be just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties.

(8)   Subject to section 47(1) of the Act, the Court or judge, on hearing an appeal from an inferior court, may —

(a)  give or make any judgment the Court or judge considers should have been given or made by the inferior court; and

(b)  set aside, reverse, alter or vary any judgment given or made by the inferior court; and

(c)  make any other order the Court or judge considers appropriate."

1. An appeal is not a common law proceeding.  Its existence, nature and scope are all dependent upon the terms of the statute that confers the right of appeal: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 108; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225; A v Law Society of Tasmania (2001) 10 Tas R 152 at par[8]. The LUPA Act and the RMPAT Act were both part of a package of legislation that replaced the Local Government Act 1962. The fact that Parliament specified that an appeal under s25(1) of the RMPAT Act was available "on a question of law", but imposed no such restriction on appeals under s65(1) of the LUPA Act, compels a conclusion that there is no such restriction on s65 appeals.

1. The nature of an appeal from another statutory tribunal, the Medical Council, was considered by Neasey J in In Re the Medical Act 1959 [1973] Tas SR 43. The legislation relevant to that case provided that a person who was aggrieved by an order of the Medical Council "may appeal to the Supreme Court, and on any such appeal, the Court, unless it dismisses the appeal, may quash or vary the order, or make such order or determination in the case as the Council could have done". The legislation was otherwise silent as to the nature and scope of the appeal. Neasey J reviewed the relevant authorities and concluded, at 50, that an appeal under the relevant section was one by way of "rehearing in the old technical sense". In such an appeal, "the appellate court redetermines the issues raised upon the hearing of the appeal as at the date of the rehearing but upon the material before the court or tribunal at first instance, although there is often a discretionary power to receive fresh material: A v Law Society of Tasmania (above) at par[8]. 

1. The LUPA Act is completely silent as to the nature of an appeal under s65, and as to the powers of the Court in relation to such an appeal. The applicable legislative provisions are therefore those in the Supreme Court Rules relating to appeals from statutory tribunals, including those rules relating to appeals from inferior courts that are made applicable to appeals from statutory tribunals.  Those provisions are indistinguishable from the statutory provisions considered by Neasey J in In Re the Medical Act 1959 (above). It must follow that an appeal under s65 is also an appeal by way of "rehearing in the old technical sense", as distinct from an appeal in the strict sense, or an appeal on questions of law alone, or an appeal by way of hearing de novo.  Thus, I am entitled to redetermine the issues raised in this appeal, upon the evidentiary material that was before the tribunal when it made its decision, with power to make my own findings of fact, when appropriate.

Evidence of contraventions

1. The relevant powers of the tribunal are conferred by s64(3) of the LUPA Act. So far as is relevant, that subsection provides as follows:

"(3)   If —  

(a)after hearing —  

(i)    the applicant and the respondent; and

(ii)   any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings —

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed or is likely to contravene or fail to comply with a provision of this Part; or

(b)…

the Appeal Tribunal may, by order —

(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and

(d)…; and

(e)require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal."

1. That subsection is in Part 4 of the LUPA Act. Each of the following would amount to a contravention of a provision of that Part:

· Commencing any use or development which, under the provisions of a planning scheme, requires a permit, when the planning authority, ie the council, has not granted a permit in respect of that use or development: s51(1).

· Undertaking "development" that is contrary to a planning scheme: s63(2)(a).

·     Using land or undertaking development in a way that constitutes a breach of a condition or a restriction of a permit imposed by a planning authority: s63(2)(c).

·     Doing any act or making any omission for the purpose of enabling or aiding another person to contravene any of the above provisions; abetting another person in doing so; or instigating another person to do so: Justices Act 1959, s73(1)(b), (c) and (d).

1. "Development" is defined in s3(1) so as to include the "carrying out of works". "Works" are defined in the same subsection so as to include "any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil". 

1. Given that there was uncontroversial evidence before the tribunal of vegetation being removed and landfill being dumped, one might expect the tribunal to have made specific findings as to how and when RWSS and Gen 3 each contravened s51(1) and/or s63(2). However, the tribunal did not make specific findings. In par[5] of its reasons, it said this:

"… In approximately March 2010, the Council apparently became aware that fill of an unknown type and composition was being dumped into Figure of Eight Creek and that vegetation was also being removed. It was common ground at the hearing that activities of this type did take place, required a planning permit and no permit was ever in existence (until very recently – the only permit that seems ever to have been in existence was one issued by the Council on or about 17^th October 2011). Specifically it was common ground at the hearing and the Tribunal is affirmatively satisfied that:

·     Various activities over at least a twelve month period (within the last two years) took place on and in respect of the land in respect of which a Town Planning Permit was required and none was in existence; and

· As a consequence, a breach of Part 4 of the Land Use Planning and Approvals Act 1993 was established."

1. In par[10] of its reasons, the tribunal said the following about breaches of the relevant statutory provisions:

"Most of those breaches occurred before 23^rd May 2011.  But it is open to conclude, on the balance of probabilities, and the Tribunal so concludes, that at least some unlawful filling activities occurred on Gen3's 'watch' ie after 23^rd May 2011.  Mr Harpley's evidence about his site inspection on the 18^th August when he encountered Mr Warren Squibb on the Mersey Road land talking to someone in a 'Meadcon' vehicle allows of such a conclusion.  In summary then the Tribunal is satisfied both corporate entities breached the Land Use Act in respect of the Mersey Road land." 

1. Whilst there was uncontroversial evidence that breaches of the relevant statutory provisions were committed on the land after Gen 3 took possession of it, it does not necessarily follow that Gen 3 was guilty of those contraventions.  It was and remains the appellants' case that Warren Squibb committed those contraventions, and that Gen 3 was not responsible for what he did.  The tribunal appears to have reasoned that Gen 3 was guilty of those contraventions simply because they occurred on its watch.  That reasoning was unsound.  The tribunal should have considered whether Gen3 was responsible for those contraventions as a principal offender, as the principal of Warren Squibb, or as an aider or abettor.

1. Counsel for the council submitted to me that an appeal under s65 is an appeal by way of rehearing; that it is therefore open to me to make my own findings of fact, based on the evidence presented to the tribunal; and that it is clear from that evidence that both RWSS and Gen 3 contravened provisions of Part 4 of the LUPA Act. In the circumstances, I think I should make my own findings as to contraventions of the relevant provisions.

1. It is appropriate to begin by considering the evidence as to when possession of the relevant land passed from RWSS to Gen 3.  By the contract dated 23 May 2011, RWSS agreed to sell to Gen 3 various assets including the two Mersey Main Road properties.  The contract provided for completion to occur on 25 May 2011 and, as is usual, for the purchaser to be entitled to possession from the time of completion.  A copy of that contract was before the tribunal.  Nigel Squibb gave uncontroversial evidence that Gen 3 had been in possession of the two properties "since settlement proceeded on 23 May 2011".  He explained that there was a delay in Gen 3 becoming the registered proprietor of the properties because of a delay in the assessment of stamp duty.  None of his evidence as to the sale, transfer, and passing of possession was challenged or contradicted.  It occurs to me that settlement might have proceeded on 25 May as required by the contract, not 23 May as stated by Mr Squibb.  However I am satisfied on the balance of probabilities that possession of the relevant properties passed from RWSS to Gen 3 on or about 25 May 2011. 

1. The evidence as to the observations of the council officer, Mr Harpley, concerning contraventions of the planning scheme on the Mersey Main Road land was also uncontroversial.  It can be summarised as follows:

·     Prior to 23 May 2011, Mr Harpley made a series of visits to the land, and observed each time that more fill had been dumped on it.  His inspections took place on 10, 16 and 25 March 2011, and on 4, 6, 18 and 29 April 2011. 

·     His next visit was on 6 June 2011.  He observed that further work had been undertaken in the area of a drainage channel.  There was no evidence from him as to whether that work took place before or after the settlement of the purchase by Gen 3.

·     His next visit was on 5 July 2011.  He observed that erosion and subsidence had taken place, but there is no suggestion that he saw evidence of any new dumping or other activity.

·     His next visit was on 16 August 2011, when he observed that a large dam had been constructed in the area of the drainage channel.

·     His next visit was on 18 August 2011.  He observed that soil and waste had been pushed into the creek.  He saw Warren Squibb on the land, talking to a man who was in a vehicle bearing the name of a business called Meadcon.  Warren Squibb told him that the person in the vehicle was the site supervisor.  The two men told him that the purpose of the works was to get access to a blocked pipe, and that plumbers would be coming to repair it.  A digger was being used at the site.

1. The evidence as to the roles and status of members of the Squibb family was as follows:

·     Warren Squibb is the father of Nigel Squibb.  There was no evidence before the tribunal that he was ever a director of RWSS, but he was a shareholder in that company at the time of a company search on 8 April 2011.  He was a director of Gen 3 from 31 January 2008, but resigned in writing on 25 May 2011. Nigel Squibb gave evidence that, in relation to the period from March 2010 to 29 April 2011, although his father was not a director, he was still "calling the shots"; that his father organised and supervised the landfill; that he was not content to let his father do that; and that "more often than not we found out after".  Under cross-examination he agreed that there was "a bit of a family bust up in the business", and that that led to the transactions of May 2011.

·     Nigel Squibb was a director of RWSS from 1 July 2010 onwards.  As from 25 May 2011, he was the sole director and sole shareholder of Gen 3. 

·     On 13 August 2011, Nigel Squibb wrote to his father on the letterhead of Gen 3, telling him that he was not permitted to enter or remain upon any land owned by Gen 3, except as one of its customers, and that he was not permitted to use any plant or equipment owned by that company without prior approval.  That of course was five days before he was seen talking to the man in the Meadcon vehicle.

1. The appellants accept that RWSS contravened the relevant provisions of the LUPA Act prior to the transaction of May 2011 by undertaking the dumping of fill and removing of vegetation. However Nigel Squibb gave evidence before the tribunal that Gen 3 did not authorise any of the contraventions of the relevant statutory provisions, and that it intended "to appropriately address the relevant environmental issues" as part of an intended development of the land.

1. However, under cross-examination Nigel Squibb gave evidence to the effect that Gen 3 had been responsible for the works on the land that were observed by Mr Harpley on his visits of 6 June and 16 August.  As to Mr Harpley's observations on 6 June, he explained that there was a major pipe blockage underneath a road, and that an open drain was constructed in order to alleviate flooding.  As to the 16 August observations, he said that there had been an agreement with the council to put through a temporary pipe, and that two to three weeks later "we commenced the approved … larger engineered pipe".  He went on to say that there was then a massive downpour which caused flooding.  He said he had absolutely no idea what his father was doing on the land on 18 August after having been warned off.

1. In par[9] of its reasons, the tribunal made findings that were favourable to Gen 3, as follows:

"The Tribunal notes that Gen3 has taken steps to ensure that person [ie Warren Squibb] is excluded from its land.  It is also quite clear that with his departure the Land Use Planning and Approvals Act 1993 breaches ceased.  In fact the Tribunal is well satisfied that the new corporate 'regime' has acted entirely appropriately at all times since assuming control of the company (apart from – perhaps – its apparent failure to comply with condition 2 of the October 2011 permit). It is also well satisfied that Mr Harpley carried out his obligations in an entirely appropriate manner at times seemingly subject to a good deal of provocation from the former director.  The Tribunal is grateful to both him and Mr Nigel Squibb for the candour they displayed whilst giving evidence and the professional approach both displayed." 

1. In my view there was no basis at all for inferring that RWSS was responsible for any contraventions of the relevant statutory provisions after about 25 May 2011.  It no longer carried on business on the land.  It had sold the land, and had been paid for it.  Warren Squibb was not one of its directors. 

1. It is clear from Mr Harpley's reports that the works undertaken prior to his visits of 6 June and 16 August went far beyond anything that he, as the responsible council officer, had agreed to. It is clear from the cross-examination of Nigel Squibb that those works were undertaken by or on behalf of Gen 3. The works constituted "development" for the purposes of the LUPA Act. There was no s57 permit. Even if, to some degree, those works had the council's blessing, they were undertaken in contravention of the planning scheme, and contrary to s63(2)(a).

1. At the hearing before me, counsel for the council submitted that Gen 3 was responsible for any contraventions of the relevant statutory provisions by Warren Squibb after the May 2011 transactions, on the basis that Gen 3 enabled, aided and/or abetted him in his contraventions.  I do not think I need to consider that submission.  Nigel Squibb's evidence as to what his father did during the relevant period lacked specific detail.  The evidence that he was seen talking to the site supervisor on 18 August 2011, whilst it might give rise to strong suspicions, does not compel a conclusion that he was still "calling the shots".  In the circumstances, I do not think the evidence about Warren Squibb makes the case against Gen 3 any stronger.

1. At the hearing before me, counsel for the council also made a submission based on cl 3.1.1(e) of the planning scheme.  The council did not rely on that provision in the proceedings before the tribunal.  Clause 3.1 reads as follows:

"3.1     Restrictions on use of land

Subject to the provisions of Parts 2, 4, 5, 7, 8, 9, and 10 and the schedules of this Scheme and the requirements of any State Policy, no person shall:

3.1.1     Except as permitted by Schedule 2:

(a)erect, re-erect, alter, extend or demolish any building or works;

(b)allow, permit or suffer any building or works to remain erected, re-erected, altered, extended or demolished;

(c)change the use of or extend the use of any land or buildings;

(d)change the use or allow, permit or suffer any land or building to continue to be used, or;

(e)do any other act of development or allow, permit or suffer the result of any such act of development to remain or continue on any land or building except pursuant to and in compliance with the provisions of this Scheme and the terms and conditions of any planning approval granted in respect of it.

3.1.2It shall be a continuing contravention of this Scheme for any act referred to in Clause 3.1.1 to occur or continue until planning approval is granted in respect of it or (if it is a continuing act) until it ceases."

1. The works undertaken by RWSS before it sold the land amounted to acts of development that were in contravention of the planning scheme and of the relevant provisions of the LUPA Act. The evidence before the tribunal clearly establishes that Gen 3 allowed, permitted and suffered the results of those acts of development to remain and continue on the land, in contravention of the planning scheme. Its passive conduct in allowing, permitting and suffering the continuation of the state of affairs that existed at the time of its purchase therefore amounts to a contravention of the planning scheme.

1. However it does not follow that Gen 3's passive conduct amounts to a contravention of any of the relevant provisions of the LUPA Act. The relevant provisions prohibit only activities, and not such passive contraventions of planning schemes. The first such provision, s51(1), reads as follows:

"(1)   A person must not commence any use or development which, under the provisions of a planning scheme or special planning order, requires a permit unless the planning authority which administers the scheme or order has granted a permit in respect of that use or development and the permit is in effect."

Clearly this subsection, when it applies, only prohibits activities – commencing a use or commencing a development – and does not apply to a contravention of a planning scheme constituted by passively allowing a state of affairs to continue.

1. The other relevant subsection, s63(2), reads as follows:

"(2)   A person must not use land in a way, or undertake development or do any other act, that —

(a)is contrary to a State Policy, a planning scheme or special planning order; or

(b)impedes or obstructs the execution of any such scheme or order; or

(c)constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme or order or a determination of the Appeal Tribunal; or

(d)constitutes a breach of section 60H(2) or of a condition or restriction imposed under section 60U, as amended, if at all, under section 60X, on a special permit granted in relation to the land."

Clearly this subsection too, when it applies, only prohibits activities – using land in a particular way, or undertaking development, or doing some sort of act.  It does not prohibit the allowing of a state of affairs to continue. 

1. For these reasons, I conclude that RWSS alone was responsible for the contraventions of the relevant statutory provisions that occurred before about 25 May 2011, and that Gen 3 alone was responsible for the contraventions that occurred thereafter. Ground 8 of the appeal, which asserts that the tribunal erred in failing to take into account the ownership of the Mersey Main Road land, must succeed. Grounds 1 and 2, which assert that it failed to make findings as to any contraventions of the LUPA Act, must succeed. Grounds 3 and 7, which assert that there was no evidence that Gen 3 had contravened the LUPA Act, must fail.

The tribunal's powers under s64

1. The appellants contend that the tribunal's power to require a respondent to make good a contravention or default, conferred by s64(3)(e), is not wide enough to empower it to require one of them to make good any of the results of a contravention or default committed solely by the other. That is to say, they contend that Gen 3 cannot be required to make good anything that RWSS did, and vice versa. The council contends that the tribunal does have such a power under s64(3)(e).

1. Counsel for the council relied on Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472, which concerned a provision in a New South Wales statute. That provision authorised proceedings "for an order to remedy or restrain a breach of this Act". The majority – McHugh A-CJ, Hayne and Heydon JJ – held at pars[47] – [48] that the words of the provision should be given full amplitude, but that it should not be read as conferring a power to make an order directed to a person who was not actually in breach of the Act, and was not threatening to act in breach of it. However s64(3) is more narrowly worded. Its relevant provisions are set out in par[13] above. Essentially it provides that, "If … the Appeal Tribunal is satisfied … that the respondent to the application has contravened or failed or is likely to contravene or fail to comply with a provision of this Part, … the Appeal Tribunal may, by order … require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal." The appellants contend that the subsection empowers the tribunal only to order a respondent to make good that respondent's own contravention or failure to comply with a relevant statutory provision, and not a contravention or failure of which that respondent was not guilty, committed by someone else.

1. When proceedings under s64 are taken in the tribunal against a single respondent, the wording of s64(3)(e) may be so narrow that the tribunal may only have power to order that respondent to make good that respondent's own contraventions or defaults, and not those of anyone else. However this was a case in which there were two respondents before the tribunal. The Acts Interpretation Act 1931 provides, in s24(d), that "words in the singular shall include the plural". Section 8A(1) of that Act requires that, in the interpretation of a provision of an Act, "an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object". Clearly the purpose or object of s64(3)(e) of the LUPA Act is to empower the tribunal to bring about the making good of contraventions of planning schemes. That purpose or object will be promoted by adopting an interpretation based on the singular including the plural, whereby a number of respondents may be ordered to make good a number of related contraventions. It would be absurd if, as the appellants contend, after one company pushed dirt into a creek, and then a second company pushed more dirt into the same creek, the tribunal could only order each company to remove its own dirt, and not that moved by the other company. Such an interpretation is consistent with the approach of the majority in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (above), in which it was said that "full amplitude" was to be given to the section that empowered the New South Wales Land and Environment Court to make an order to remedy a breach of the statute then in question.

1. Since RWSS and Gen 3 had both contravened relevant statutory provisions, and since they were both respondents in the tribunal proceeding, and since it was impractical to order each of them to undertake separate rehabilitation works, this was a case in which it was both lawful and entirely appropriate for the tribunal to make a single order requiring both companies to make good the contraventions that had occurred. 

Access to the land for RWSS

1. Ground 5 of the notice of appeal, as amended, asserts that the tribunal failed to take into account a relevant consideration, namely that RWSS did not have "any, or any sufficient, ownership, possession or control of the Mersey [Main] Road properties to allow it to make good a contravention or default".

1. I accept that RWSS has no right to send anyone onto the relevant land without the permission of Gen 3.  The tribunal commented that RWSS may still have an equitable interest in the land, but there was no sensible basis for that comment. 

1. If, as a result of a change of ownership, a respondent to a s64 application no longer has a right of access to land on which a contravention of the LUPA Act has occurred, the tribunal might not be able to go any further than ordering (a) that that respondent use its best endeavours to obtain permission to go onto the land in order to remedy the contravention; and (b) that it remedy the contravention in the event of such permission being granted. However, this was a case in which both the old and new landowners were before the tribunal. It was implicit in the tribunal's order that Gen 3 was required to do whatever was necessary for the carrying out of its orders as to the rehabilitation of the land including, if need be, providing access to the agents and contractors of RWSS.

1. If Gen 3 had not contravened the relevant statutory provisions, and no order could therefore be made against it, the position would have been different.  But, for the reasons stated, ground 5 must fail.

Delegation of roles to the council

1. Ground 6 of the notice of appeal relates to the tribunal's order no 2, to which I have already referred.  The full text of that order reads as follows:

"That on or before the 29^th September 2012 the Respondents are required to rehabilitate the Mersey Road land by removing landfill and reinstating land and/or vegetation in accordance with a report from a suitably qualified person approved of by the Applicant, and to a scope and scale also approved of by the Applicant." 

1. Counsel for the appellants accepted that in some cases the tribunal is entitled to delegate to a third party the role of supervising the making good of a contravention, but argued that the impugned order went too far, and delegated to the council matters that were really for the tribunal to decide.  He argued that it was not open to the tribunal to delegate to the council the role of deciding on the "scope and scale" of the rehabilitation works.

1. Order no 2 should be considered in its context.  In the other orders made by the tribunal, it effectively restricted the role of the council in approving the scope and scale of the rehabilitation works as follows:

·     By order no 3 it required that, subject to the orders which followed, the remediation was to proceed generally in accordance with an environmental management report that had been tendered at the hearing.

·     Order no 5 required the "Developer" – presumably Gen 3 – to "remove all identified contaminated toxic and hazardous waste material that exists on the land …".

·     Order no 6 required the "Developer" to "manage the site and maintain pollution control measures during the course of the remediation to minimise downstream off-site effects".  That order went on to impose specific requirements as to the retention and re-use of any recovered topsoil, sand or loam; the stabilising of any piles of soil prior to re-use; dust control measures; the daily inspection of stormwater control and pollution mitigation devices; and the installation of suitable and stable materials in the watercourse to dissipate potential scouring of the creek bed and sides.

·     Order number 7 required the provision of a waste management plan relating to the removal and disposal of all unwanted materials.

·     Order number 8 required the submission of a contour plan after the conclusion of the works, showing details of the work undertaken.

1. When a planning authority purports to grant a development consent, but imposes a condition which leaves to somebody else the power to determine some fundamental aspect of the proposed development, then the purported consent will be regarded as something that is not final, and therefore invalid: Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61; Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 740; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at par[55]; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at par[89]. Some degree of practical flexibility is acceptable. In the words of Samuel AP in Scott v Wollongong City Council (1992) 75 LGRA 112 at 118:

"… it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed.  Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision." 

The validity or otherwise of the consent depends on the statutory limits imposed upon the power of the decision-maker:  Kindimindi at par[55]. 

1. When a tribunal or court exercising a statutory power makes an injunctive order for the making good of a contravention of a planning statute, it will no doubt sometimes be impractical for every matter of detail to be addressed. In that situation, as with development consents, it can be appropriate for matters of detail to be left to someone appropriate for later decision-making. The appellants do not argue otherwise. Here, the tribunal was exercising its power under s64(2)(e) to require two respondents to make good their contraventions of provisions of the LUPA Act. That, in substance, is what it ordered. It was not in a position to determine matters of detail as to the scale and scope of the necessary works. That would depend, in part, on what was exposed when the offending companies started to remove fill from the site. For one thing, oil or other pollutants might have leaked into the original soil. It was appropriate that decision-making as to the scale and scope of the works be delegated to some person or authority other than the tribunal. Its role is to order remedial works, not oversee them. The council, being a public body and the planning authority for its municipal area, was an appropriate delegate. For these reasons I consider that order no 2 was a valid exercise of the power conferred by s64(2)(e). Ground 6 must fail.

The permit of 17 October 2011

1. On 17 October 2011, the council granted to an engineering company named CSE Tasmania Pty Ltd a permit under s57 of the LUPA Act for the removal of fill and revegetation in respect of the land at 14 Sheffield Road. Evidently CSE had been engaged by Nigel Squibb on behalf of Gen 3. The permit did not apply to the Mersey Main Road land.

1. In the proceedings before the tribunal, there was no dispute about the Sheffield Road land.  The parties agreed on various orders that the tribunal made by consent.  However, at par[6] of its reasons, the tribunal referred to the 17 October 2011 permit.  It observed that a condition of the permit required various rehabilitation and landscaping works to be completed by the end of February 2012, and that those works had not even been started.  The tribunal's decision was delivered on 16 May 2012. 

1. Ground 9 of the notice of appeal asserts that the tribunal erred by taking the permit into account when making its decision in relation to the Mersey Main Road land.  I agree that the permit was irrelevant to the controversy as to the Mersey Main Road land, but I think the tribunal mentioned it for the purpose of explaining the background to its orders insofar as they related to the Sheffield Road land.  Ground 9 therefore fails. 

Inadequate reasons

1. The RMPAT Act, s24(1) and (2), provide as follows:

"24    Reasons to be given by Appeal Tribunal

(1)   Subject to this section and to section 23, the Appeal Tribunal must give written reasons for its determination of an appeal.

(2)   The reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based." 

1. The appellants contend that the tribunal did not provide adequate reasons for its decision. I am not satisfied that there was any aspect of the tribunal's reasoning that it failed to disclose in its written reasons. For the reasons stated above, I think it erred by not adequately considering what contraventions of the relevant provisions of the LUPA Act had been established, and not distinguishing between the contraventions of RWSS and those of Gen 3, but that is a different matter. I think ground 10 should fail.

Outcome of the proceedings

1. Despite the inadequacies and errors in the tribunal's decision-making, I think the appeal should be dismissed. The tribunal concluded that it could and should order the respondents to make good certain contraventions of the LUPA Act. It was right to conclude that it had that power, but it reached that conclusion as a result of faulty and inadequate reasoning. After concluding that it had that power, its decision-making as to the exercise of its discretionary statutory powers was unimpeachable. In my view its orders were within the law and entirely appropriate.

1. The application under the Judicial Review Act does not raise any matter of contention that was not raised by the appeal.  For the reasons stated, I have decided to dismiss both proceedings.