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Gen 3 Developments Pty Ltd v Devonport City Council

Gen 3 Developments Pty Ltd v Devonport City Council

Case [2013] TASSC 6 27 February 2013

Contrary to Planning Scheme

Planning and Development Prosecutions

Planning & Development Law

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[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

These reasons relate to two proceedings – an appeal under the Land Use…

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 Gen 3 Developments Pty Ltd v Devonport City Council

Details

AGLC: Gen 3 Developments Pty Ltd v Devonport City Council [2013] TASSC 6
Case: [2013] TASSC 6
Decision Date: 27 February 2013

CaseChat Overview and Summary

In the case of Gen 3 Developments Pty Ltd versus Devonport City Council, the matter before the court revolved around the interpretation of the planning scheme and whether the actions of the developer constituted a prohibited act of development. The defendant, Gen 3 Developments, had undertaken activities on a piece of land which the Council argued contravened the planning scheme by allowing the result of a prohibited act of development to remain on the land. The applicant sought a declaration that the activities did not constitute a commencement of a use or development, or using or undertaking development, or doing an act that would breach the planning scheme. The case was heard in the Supreme Court of Tasmania.

The primary legal issue that the court had to address was the interpretation of specific provisions within the planning scheme that related to prohibited acts of development. The court had to determine whether the actions of Gen 3 Developments amounted to a use or development that was contrary to the scheme, and whether these actions constituted a prohibited act under the legislation. Additionally, the court needed to clarify the meanings of key terms such as "commencing a use or development", "using or undertaking development", and "doing an act" as they applied to the planning scheme. These interpretations were critical in deciding whether the developer's activities warranted enforcement action by the Council.

The court examined the statutory language and legislative context, and found that the provisions in question were not intended to impose a continuing obligation on land owners or occupiers to remove the results of prior prohibited acts. The court held that the developer's actions did not constitute a prohibited act of development as they did not involve a use or development of the land in a manner contrary to the planning scheme. The court also concluded that the terms "commencing a use or development" and "using or undertaking development" related to the initiation or continuation of activities that were themselves uses or developments, rather than the mere existence of the results of prior activities. Therefore, the court ruled in favour of the developer, finding that the Council's prosecution was not justified.

As a result of the court's decision, the applicant was granted the declaration it sought, that the activities undertaken on the land did not constitute a prohibited act of development under the planning scheme. The court's interpretation of the statutory provisions provided clarity for future cases involving similar issues, ensuring that land owners and occupiers are not unduly burdened by the results of prior prohibited acts if they do not themselves engage in activities that contravene the planning scheme. The court's findings also reinforced the importance of precise statutory language and the need for careful consideration of legislative intent in planning and development matters.

Orders