Griffin v Resource Management and Planning Appeal Tribunal and Christie; Hobart City Council v Resource Management and Planning Appeal Tribunal and Christie

[2010] TASSC 8

[2010] TASSC 8

COURT:  SUPREME COURT OF TASMANIA

CITATION:Griffin v Resource Management and Planning Appeal Tribunal and Christie

Hobart City Council v Resource Management and Planning Appeal Tribunal and Christie [2010] TASSC 8

PARTIES:  GRIFFIN, Michael
  GRIFFIN, Annette
  v
  RESOURCE MANAGEMENT AND PLANNING
  APPEAL TRIBUNAL

CHRISTIE, Christine

HOBART CITY COUNCIL
  v
  RESOURCE MANAGEMENT AND PLANNING
  APPEAL TRIBUNAL

CHRISTIE, Christine

FILE NO/S:  843/2009 and

887/2009

DELIVERED ON:  12 March 2010
DELIVERED AT:  Hobart
HEARING DATE:  22 February 2010
JUDGMENT OF:  Evans J

CATCHWORDS:

Statutes – Subordinate legislation – Validity – Repugnancy – Generally – Repugnancy to authorising Act – Inconsistency with Act that continues its operation.

Aust Dig Statutes [139]

REPRESENTATION:

Counsel 843/2009:
             Appellants:  S B McElwaine
             First Respondent:  Submitted to the order of the Court
             Second Respondent:  A C R Spence
Solicitors:
             Appellants:  S B McElwaine
             First Respondent:  In Person
             Second Respondent:  Page Seager

Counsel 887/2009:
             Appellant:  D J D Morris
             First Respondent:  Submitted to the order of the Court
             Second Respondent:  A C R Spence
Solicitors:
             Appellant:  Simmons Wolfhagen
             First Respondent:  In Person
             Second Respondent:  Page Seager

Judgment Number:  [2010] TASSC 8
Number of paragraphs:  23

Serial No 8/2010
File No 843/2009,

887/2009

MICHAEL GRIFFIN & ANNETTE GRIFFIN v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL, CHRISTINE CHRISTIE
HOBART CITY COUNCIL v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL, CHRISTINE CHRISTIE

REASONS FOR JUDGMENT  EVANS J

12 March 2010

1. The issue raised by these appeals from the Resource Management and Planning Appeal Tribunal is whether a provision of the City of Hobart Planning Scheme 1982 confers a discretion on the Hobart City Council to refuse or permit a proposed use (as distinct from a development) at a location within or adjacent to a place listed in the Heritage Register, or a Heritage Area (a Heritage site).  When this issue came before the Tribunal on appeals referable to a property in Melville Street, the Tribunal decided that the Council had such a discretion.  Some three weeks later when the same issue came before the Tribunal on an appeal referable to a McDonald's restaurant, the Tribunal found that the Council had no such discretion.  Thereafter the Tribunal called the parties to its Melville decisions before it and reversed those decisions.  The appellants, relying on the Resource Management and Planning Appeal Tribunal Act 1993, s25(1), have appealed against that reversal. They contend that the Tribunal was right the first time and that the Council has the discretion in question. Before continuing I should say that I reject a contention advanced on behalf of the second respondent to the effect that the decisions which are the subject of the appeals are not decisions for the purposes of that Act, s25(1).

2  Provisions of the Scheme that bear on the Tribunal's decisions include:

"F.5     Discretion

F.5.1The Council has a discretion to refuse or permit any proposed use or development:-

(i)   within or adjacent to a place listed on the Heritage Register;

(ii)   within or adjacent to a Heritage Area."

The above clause is contained in Schedule F of the Heritage Schedule, which includes the following definition:

"F.1.1   For the purposes of this Schedule:

'adjacent'in relation to proposed development means sites alongside, behind, diagonally behind or directly opposite on the other side of the road from a place listed on the Heritage Register or in a Heritage Area."

Schedule F does not include a definition for "development" or "use".  The term "use" is not defined anywhere in the Scheme, however "development" is defined in cl 1.7.1 as follows:

"1.7.1    In this Planning Scheme, unless inconsistent with the text or subject matter:

'Development'     means

(a)    the construction or exterior alteration of a building;

(b)the exterior decoration of a building listed within the Heritage Register as described within Schedule F;

(c)    the demolition or removal of a building or works;

(d)    the construction or carrying out of works;

(e)    the clearing, subdivision or consolidation of land;

(f)the placing or relocation of a building or works on land;

(g)the construction or putting up for display of signs or hoardings to be read from off the site; and

(h)the making of any material change in the use of the land or any buildings or works thereon."

1. In the Matter of a Referral by the Resource Management and Planning Appeal Tribunal; ex parte Arkless & Anor [2003] TASSC 93, Slicer J at par[13] observed that the Scheme regulates both use and development, but logically treats them separately in various provisions, although the words are not always used consistently and are often used in combination. I agree with this observation and note that cl F.5.1 is an illustration of it insofar as the clause refers to "any proposed use or development". I also note that a reference in the Scheme to a development will usually cover a use insofar as the definition of development in cl 1.7.1(h) includes "any material change in the use of the land or any buildings or works thereon".

1. In its Melville decision, published on 28 July 2009, the Tribunal said the following in the course of explaining its conclusion that the Council had a discretion pursuant to cl F.5.1 to refuse or permit the change of use under consideration:

"There is no reason in the Tribunal's view to go beyond the definition of development, which in this instance, in the context of this Scheme, includes the concept of making a material change in use which is precisely what is proposed here.  Specifically there is no mandate for the Tribunal to have regard to the specific definition that the Proponent contends for as contained in the Land Use Planning and Approvals Act 1993.  Development is expressly defined in the Scheme.  No assistance is to be gained going elsewhere for alternative definition."

1. An aspect of the reasoning of the Tribunal that underpins its Melville decision appears to be an unexpressed view that it formed about the effect of the definition given to "adjacent" in cl F.1.1.  That definition is said to apply "in relation to proposed development" and it makes no express reference to a use.  It seems that the Tribunal concluded that as the definition does not refer to a use, a use could not be held to be adjacent to a Heritage site unless it was a material change of use, in which case it was a development. 

1. That the abovementioned was an aspect of the Tribunal's reasoning emerges more clearly in its McDonald's decision, published on 20 August 2009.  In that decision the Tribunal said of the issue as to whether the Council had the discretion in question: "This issue is much more difficult to determine than appears at first glance".  Before expanding on the difficulty it had in mind, the Tribunal referred to cl F.5.1 and the definition of "adjacent".  It then went on to say:

"A difficultly, however, arises as a result of the most unhappy drafting of the Schedule generally and Clause F.5 in particular.  Clause F.5.1 gives the Council a discretion to refuse or permit 'any proposed use or development'.  But the definition of 'adjacent' contains a reference only to a proposed development and not a use."

After setting out that part of the definition of "development" that includes a material change of use, the Tribunal said:

"Thus if what is proposed amounts to a 'material change of use … then notwithstanding the apparent distinction in F.5.1 between 'use' and 'development' the discretion arises in the circumstances of this case since what is proposed meets the description of development in terms of Clause 1.7.1(h). It may be that such an approach might be thought to produce potentially inconsistent results in other circumstances, such that if a permit is sought for a proposed use on a site 'adjacent to a place listed on the Heritage Register' then unless the proposed use amounts to a 'material change of use' (Clause 1.7.1(h)) then no discretion will arise."

Thereafter the Tribunal gave reasons for in effect finding that par(h) of the Scheme's definition of "development", which relates to "any material change in the use of the land or any buildings or works thereon", is invalid.  It said:

"14But an additional problem arises in relation to the terms of this Scheme and this Schedule. The Scheme came into being under the  Local Government Act 1962 Part XXVIII at Division 2. That Act was replaced by the Land Use Act [the Land Use Planning and Approvals Act 1993] in 1994. Thus the Scheme is a 'prior scheme' in terms of Schedule 4 of the Land Use Act, which means, by virtue of Clause 5 of Schedule 4 it 'continues in force as if it were a planning scheme made under [the Land Use Act]'. Development is defined in the Land Use Act. It is defined as follows:

'development' includes –

(a)the construction, exterior alteration or exterior decoration of a building; and

(b)the demolition or removal of a building or works; and

(c)the construction or carrying out of works; and

(d)the subdivision or consolidation of land, including buildings or airspace; and

(e)the placing or relocation of a building or works on land; and

(f)the construction or putting up for display of signs or hoardings –

but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f), prescribed by the regulations for the purposes of this definition;'

That definition is concerned entirely with development as the expression would ordinarily be understood. Nowhere in it is the concept of use mentioned or even alluded to. More than this 'use' is defined, later in the same section, as expressly excluding 'the undertaking of development'. A clear distinction between the two terms is established.

15McDonald's submit that the Land Use Act definition must prevail over the definition in the Scheme, relying upon a passage from Pearce and Geddes' Statutory Interpretation in Australia (4^th Edition) at page 202: '[w]hile not, strictly speaking, a rule of interpretation, it should be borne in mind that where an Act contains provisions that are inconsistent with an item of delegated legislation (and there can be no doubt that the Scheme is an item of delegated legislation) the latter will be rendered invalid, therefore in effect being repealed. See D Pearce and S Argument Delegated Legislation of Australia (3^rd Edition) ... Chapter 19. On the other hand, delegated legislation cannot impliedly repeal an earlier Act except where expressly so authorised Hall v Manahan [1919] St R Qd 217; TN v Woolford (1998) 126 NTR 8 at 16'. It submits that since the definitions of 'development' and 'use' in the Land Use Act establish a clear distinction between the two concepts and, in particular 'use' expressly excludes development, the mixing of the concepts, as it were, in the Scheme leads to an inconsistency between the Scheme definitions and those in the Land Use Act, leading in turn to the former being rendered invalid.

16There is significant merit in this submission. There is an inconsistency between the definitions of development in the Scheme and in the Land Use Act. 'Development' in terms of the Act may not include use. The Planning Scheme, as delegated legislation, therefore may not include a definition (or any other provision) which is repugnant to, or inconsistent with, the Act of Parliament under which it is made (see Gentel v Rapps [1902] 1 KB 160 at 166 per Channel J). Acknowledging that the Tribunal should approach the matter on the basis of an interpretation which gives the 'greatest harmony and the least inconsistency' (see Australian Alliance Assurance Co Ltd v Attorney General (Qld) and Anor [1916] St R Qd 135 at 161 per Cooper CJ) the inescapable conclusion is that the two definitions are inconsistent and thus the Land Use Act definition must prevail to the extent there is any inconsistency between the two. And at least in relation to the definition of development in Clause 1.7.1 of the Scheme including 'the making of any material change in ... use' there is such an inconsistency.

17From this it follows that, in the circumstances of this case, given no development is proposed 'adjacent to a place listed on the Heritage Register' no discretion arises under Schedule F of the Scheme. The Council had no power to reject the proposal. It was permitted in terms of the Scheme."

1. Central to the Tribunal's decision in McDonald's is the proposition that the definition given to "development" in the Land Use Planning and Approvals Act 1993 ("the LUPA Act") must prevail over the definition given to that term in the Scheme as the Scheme may not include a definition which is repugnant to, or inconsistent with the LUPA Act. There is no question that there are differences between the definitions given to the term "development" in the Scheme and in the LUPA Act. However, it does not necessarily follow that because of these differences the LUPA Act definition "must prevail to the extent that there is any inconsistency between the two". An inconsistency between subordinate legislation and the statute under which it was made may result in a finding that the inconsistent portion of the subordinate legislation is repugnant in the sense that it is beyond power and accordingly invalid; R v Minister of State for Interior (1972) 20 FLR 449 at 457 – 458. Adopting the terminology used in the unanimous decision of the High Court in Morton v The Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410, subordinate legislation may not vary or depart from an enabling Act by going "outside the field of operation which the Act marks out for itself". I add that a determination as to whether subordinate legislation goes outside the field of operation of an enabling Act almost inevitably involves discerning the intention of Parliament as it emerges from the applicable legislation.

1. Putting to one side the fact that the Scheme was made under the Local Government Act 1962, not the LUPA Act, it is pertinent to identify the differences between the definitions given to the term "development" in the Scheme and the LUPA Act. They are:

(1)The Scheme definition, par(b), which relates to exterior decoration, is confined in its application to a building listed within the Heritage Register. The LUPA Act definition, par(a), is not so confined.

(2)The Scheme definition, par(e), includes a reference to "clearing" but is otherwise more confined than the LUPA Act definition, par(d), which extends to "buildings or airspace".

(3)The Scheme definition, par(g), is confined in its application to signs or hoardings "to be read from off the site", whilst the LUPA Act definition, par(f), is not so confined.

(4)The Scheme definition, par(h), makes a material change of use a development, whilst the LUPA Act definition does not and the LUPA Act, unlike the Scheme, includes a definition of "use". Since 1995 that definition has provided that it "does not include the undertaking of development".

(5)The LUPA Act definition concludes with a provision to the effect that it does not include any development prescribed by the regulations for the purposes of the definition, whilst the Scheme definition contains no similar provision. 

1. With reference to difference (5), I note that the Land Use Planning and Approvals (Application Act) Regulations 1994 and 2004 both in substance provide that the installation of any telecommunications infrastructure, and a related construction of a supply line, are excluded developments. This does not give rise to any relevant inconsistency or repugnance between the Scheme and the LUPA Act. The Scheme can readily be read subject to those regulations.

1. Differences (1) to (4) are of no consequence as they do not in any relevant sense take the Scheme outside the field of operation of the LUPA Act. Save for the inclusion of "clearing" in the Scheme, par(e), these differences confine the operation of the Scheme and the inclusion of "clearing" is quite consistent with the inclusive definition given to development by the LUPA Act.

1. I turn to difference (4), the inclusion of a material change of use in par(h) of the Scheme's definition of "development".  Ordinarily expressions used in subordinate legislation reflect the meaning given to those expressions in the Act that authorises the subordinate legislation.  This common-sense approach to drafting is consistent with the rule of construction contained in the Acts Interpretation Act 1932, s19, which provides:

"19      Construction of statutory instruments

Where an Act confers power to make, grant, or issue any regulation or other instrument, all expressions used in any such instrument shall have the same respective meanings as in the Act conferring the power."

1. Consistent with that Act, s4, and the common law (Transport Accident Commission v Treloar [1992] 1 VR 447 at 449 and Buresti v Beveridge & Anor (1998) 158 ALR 445 at 447) s19 applies unless a contrary intention appears. There is no room for the direct application of s19 as between the Scheme and the LUPA Act as the enactment that conferred power to make the Scheme was the Local Government Act not the LUPA Act. In any event, the definition given to "development" in the Scheme would evidence the requisite contrary intention. To my mind, the relevance of s19 is that it brings to the fore the common-sense expectation that expressions used in subordinate legislation should have the same meaning as those expressions in the Act that authorises the subordinate legislation. As explained by Professor Pearce and Associate Professor Geddes in their text, Statutory Interpretation in Australia, 6^th ed, par6.32, the purpose of provisions such as s19 is to avoid the need to go through the process of redefining in subordinate legislation an expression used in the Act under which it was made.

1. I am informed by counsel that the Scheme is one of about 30 that were in force pursuant to the Local Government Act, PtXVIII, when that Part was repealed.  From at least 1975 that Part included a definition section that defined a "development".  It was initially that Act, s733A, which was added by the Local Government (Planning Appeals) Act No 63 of 1975.  Amendments made to PtXVIII by the Local Government Amendment (Planning and Development) Act No 50 of 1990, had the effect of changing the number of that definition section to s721A.  The content of the section was not changed.  Paragraph (c) of its definition of "development" was "the making of any material change in the use of the land or any buildings or works thereon" (the precise words used in the Scheme definition of development, par(h)).  Against this background, when the Local Government Act, PtXVIII, was repealed and in effect replaced by the LUPA Act, it must have been recognised that, as with the Scheme, many planning schemes made under the Local Government Act, PtXVIII, would have included a definition of development that differed from the definition given to that term in the LUPA Act; that difference being that the planning scheme definition of a development included a material change of use. I mention that when enacted the LUPA Act did not provide in its definition of "use" that it did "not include the undertaking of development". This aspect of that definition was added by the Land Use Planning and Approvals Amendment Act (No 2) 1995. 

1. Contemporaneous with the repeal of the Local Government Act, PtXVIII, and the enactment of the LUPA Act, the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 was enacted.  It relevantly provided:

"Removal of doubts in relation to prior schemes, &c

10 — (1)    Any planning scheme or interim order finally approved under Part XVIII of the Local Government Act 1962 and in force at the commencement of this Act is valid and effective, from the day on which it was finally approved, in relation to land that is, or has been Crown land or vested in a State authority.

Savings and transitional provisions

11 — The savings and transitional provisions set out in Schedule 1 have effect."

"Interpretation

1 — (1)    In this Schedule —

'prior scheme' means a planning scheme made or deemed to have been made under Part XVIII of the Local Government Act 1962.

Provisions in relation to schemes

2 — On and from the commencement of this Act —

(a)    a prior scheme continues in force as if it were a planning scheme made under the Land Use Planning and Approvals Act 1993."

1. By reason of what is essentially an administrative action implemented by the Chief Parliamentary Counsel pursuant to the Legislation PublicationAct No 17 of 1996, s30, the above provisions were incorporated into the LUPA Act as s87A and Sch4. (The Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act was repealed by the Legislation Repeal Act, No 120 of 2001). Section 87A and Sch4, relevantly provide:

"schedule 4 — Savings and Transitional Provisions

87A     Savings and transitional

The savings and transitional provisions specified in Schedule 4 have effect.

1         Interpretation

(1)     In this Schedule —  

'prior scheme' means a planning scheme made or deemed to have been made under Part XVIII of the Local Government Act 1962.

3         Removal of doubts in relation to prior schemes, &c.

(1)     Any planning scheme or interim order finally approved under Part XVIII of the Local Government Act 1962 and in force at the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 is valid and effective, from the day on which it was finally approved, in relation to land that is, or has been, Crown land or vested in a State authority.

5         Provisions in relation to schemes

On and from the commencement of the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993 –

(a)     a prior scheme continues in force as if it were a planning scheme made under this Act."

1. The savings clause which was contained in the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act, Sch1, cl 2(a) and which is now incorporated in the LUPA Act, Sch4, cl 5(a), ("the clause in question") is critical to the ongoing standing of planning schemes made under the now repealed Local Government Act, PtXVIII.  This is because the effect of the repeal of a statute is that the repealed statute must, in the absence of a savings clause and except as to closed transactions, be regarded as if it never existed.  Where subordinate legislation was made under a statue that has since been repealed, that repeal also repeals the subordinate legislation unless there is an appropriate savings clause; Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233 at 239. Accordingly, when the Local Government Act, PtXVIII was repealed, in the absence of an appropriate savings clause, planning schemes made under that Part would have ceased to have any force or effect.  Where a savings clause is required, the terms of the clause adopted will vary according to the needs of the case.  The precise terms of the clause adopted, and the statutory framework within which it appears, are pivotal to the determination of its effect.  The passage set out at the end of this paragraph from Pearce and Argument, Delegated Legislation in Australia, 3^rd ed, par25.6, illustrates the differences between the two clauses referred to in the passage, neither of which is in the same terms as the clause in question.  Relating the clauses referred to in the passage to the situation under consideration, they would have provided either that a planning scheme made under the Local Government Act, PtXVIII:

·was "to be deemed to have been made" under the LUPA Act; or

·was "to remain in force" notwithstanding the repeal of the Local Government Act, PtXVIII. 

The passage referred to is:

"[T]he form of the savings clause may be crucial to the validity of the delegated legislation.  An important distinction was drawn by Latham CJ in Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233 at 239 – 40 between a clause which stated that regulations made under a repealed Act were 'to be deemed to have been made' under the repealing Act, and a savings clause which provided that regulations made under a repealed Act were 'to remain in force' notwithstanding the repeal of that Act. The first-mentioned form of words had the effect of the regulations becoming regulations under the repealing Act. To this extent, their validity depended upon the regulation-making power in the repealing Act, not that in the repealed Act. Accordingly, if the repealing Act did not contain an empowering provision sufficiently wide to justify the making of the regulations, they would be invalid. In so ruling, Latham CJ confirmed a decision to this effect by the Victorian Full Court in Craven v City of Richmond [1930] VLR 153. On the other hand, if the regulations were expressed simply to remain in force, their validity would then depend upon whether there was power to make those particular regulations under the repealed Act. If the regulations were valid when made, then their future operation was ensured: see also Leaney v Sandland [1933] SASR 285."

1. The clause in question is somewhat of a hybrid of the abovementioned savings clauses insofar as it provides that "a prior scheme continues in force as if it were a planning scheme made under" the LUPA Act. Counsel for the appellants on the first appeal submitted that the clause in question can only mean that such a scheme was validly and effectively made under the LUPA Act. I do not accept that this is so. Had that been the intention of Parliament, it is to be expected that it would have expressed itself in similar terms to those used in the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act, s10, which is now incorporated in the LUPA Act, Sch4, cl 3(1) ("a valid and effective clause"). To my mind the presence of a valid and effective clause, almost alongside the clause in question in the same legislation, is a compelling indication that Parliament intended to draw a distinction between the two. Insofar as the clause in question provides that "a prior scheme continues in force", my tentative view is that this does not evidence an intention to validate such a scheme, or a portion thereof, which was invalid when made under Local Government Act, PtXVIII.  However, I will not take this aspect of the clause in question any further as it is not suggested that the Scheme, or any portion of it, was invalid when made.  The inconsistency upon which the Tribunal based its McDonald's decision, and the decisions that are the subject of this appeal, did not exist when the Scheme was made.  At that time the provision in the Scheme, to the effect that a development included a material change of use, was entirely consistent with the definition given to the term "development" in the Local Government Act, PtXVIII. The inconsistency relied upon to found the Tribunal's decision is an inconsistency between a provision in the Scheme and the LUPA Act, the enactment pursuant to which the Scheme now continues in force.

1. To my mind it is clear that two of the objectives of the clause in question are:

·to save a planning scheme from repeal by reason of the repeal of the Local Government Act, PtXVIII; and

·to continue a planning scheme in force as if it were a planning scheme made under the LUPA Act.

The first objective is patently obvious, and the second is both express and necessary. In the absence of the second objective there would be no mechanism for the amendment of a scheme (the LUPA Act, Pt3, Div2), or the review of a scheme (the LUPA Act, Pt3, Div3).

1. When the clause in question is considered in the context of the LUPA Act as a whole, it is apparent that it does not render a planning scheme immune from any challenge to its validity. For example it is obvious that an amendment to a scheme that purported to be made pursuant to the Act, Pt3, Div2, would be open to challenge on the basis that the Division had not been complied with. More significantly, the Act itself provides that in some instances where there is an inconsistency between a scheme and the Act, the scheme is of no effect. The Act, s49, provides:

"49 Effect of Divisions 2 and 3 on certain planning schemes and interim orders

(1)A planning scheme …, whether made before or after the commencement of this section, has effect subject to Divisions 2 and 3, and, to the extent to which a planning scheme … is inconsistent with those Divisions, it is of no effect.

(2)Without prejudice to the generality of subsection (1), any provision in a planning scheme … that –

(a)  requires notification or publication of an application for a planning approval; or

(b)  gives a right of appeal in respect of any decision of a planning authority –

is deemed to be inconsistent with Divisions 2 and 3."

1. Section 49 is in Pt4 of the Act.  Division 2 of that Part deals with "Development control" and Div3 of that Part deals with "Planning appeals".

1. Viewed against the background of the matters to which I have referred, and what I perceive to be the intention of Parliament, only an irreconcilable inconsistency between a provision in the Scheme and the LUPA Act could warrant a finding that the provision in the Scheme was beyond power. There is no such irreconcilable inconsistency in this case. The Scheme's inclusion of a material change of use in its definition of "development" does not extend the reach of the Scheme beyond the reach of the LUPA Act. That Act, s51(1), provides that, where required in a planning scheme, a permit must be obtained from a planning authority for "any use or development". The Scheme, cl 1.5.1, requires that a permit be obtained for "any development". Whilst this clause makes no reference to a "use", due to the definition given to the term "development" in the Scheme, the effect of the clause is to require a permit for both a development, within the meaning of that term as used in the LUPA Act, and a substantial change of use. This is not contrary to the LUPA Act. It does not entitle the Council to go beyond that which is countenanced by the Act. The LUPA Act expressly contemplates that a planning authority may require a permit in respect of both a use and a development. A loosely analogous situation would arise if a planning scheme did not use either of the expressions "development" or "use" as used in the Act, but required that a person not commence an activity without a permit, and defined "activity" in terms that encompassed, but did not go beyond, the scope of the definitions given to "development" and "use" in the Act. In that situation there could be said to be an inconsistency between the terms used in the planning scheme and the Act, but the inconsistency would be of no consequence and would not be irreconcilable. It could not be said that the planning scheme went outside the field of operation circumscribed by the Act. For these reasons I conclude that such inconsistency as there is between the definitions given to the term "development" in the Scheme and in the Act does not result in any invalidity. I reject the Tribunal's finding that the definition given to "development" in the Act must prevail over the Scheme to the extent that it is inconsistent with the definition of that term in cl 1.7.1 of the Scheme.

1. What I have said is sufficient to uphold these appeals.  I should, however, address the Tribunal's view that, as the definition of "adjacent" in cl F.1.1 does not refer to a use, a use could not be adjacent to a Heritage site unless it was a material change of use, in which case it would be a development.  This aspect of the Tribunal's reasoning is referred to in pars5 and 6 of these reasons.  That the definition of "adjacent" is expressed to be "in relation to proposed development" does not, as the Tribunal apparently concluded, mean that the term adjacent only has meaning when used in relation to a development.  Where, as in cl F.5.1, the Council is given "a discretion to refuse or permit any proposed use … within or adjacent to a" Heritage site, those words should be given full effect.  There is no justification for construing the definition given to "adjacent" in a manner that denies that word any force or effect when used in relation to a use.  It is axiomatic that unless there is good reason to do otherwise, a provision in a statutory instrument should be construed in a manner that gives it effect, rather than construed in a manner that gives it no effect; Evans v Frawley [2009] TASSC 92, par11. This is not the occasion for me to address in any detail the meaning to be attributed to the word adjacent as used in cl F.5.1 in relation to a proposed use. Suffice it to say that the word should be construed according to applicable principles. Resort to a dictionary is an accepted practice for ascertaining the common meaning of a word, albeit that every word must be construed in the context of the legislation in which it appears in accordance with its purpose, The Honourable Mr David Llewellyn v The Resource Management and Planning Appeal Tribunal [2007] TASSC 21, par36. Consistent with the approach that words are generally assumed to be used consistently in legislation (Statutory Interpretation in Australia (supra), par4.6), it may be that the word adjacent when used in relation to a use in SchF has the same meaning as it has when used in that Schedule in relation to a development.

1. For these reasons these appeals are allowed.  I will hear the parties as to consequential orders.