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Grunseth v Resource Planning and Development Commission

Grunseth v Resource Planning and Development Commission

Case [2008] TASSC 35 25 July 2008

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[2008] TASSC 35

CITATION:Grunseth v Resource Planning and Development Commission
[2008] TASSC 35

PARTIES: GRUNSETH, Jon Reider

SALTEL INC
APOLLO BAY GROUP LLC
v
RESOURCE PLANNING AND DEVELOPMENT
COMMISSION
KINGBOROUGH COUNCIL
THE HONOURABLE STEVEN KONS,
ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  830/2007
DELIVERED ON:  25 July 2008
DELIVERED AT:  Hobart
HEARING DATE:  21 April 2008
JUDGMENT OF:  Crawford CJ, Slicer and Blow JJ

CATCHWORDS:

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Amendments to planning schemes - Notice and advertising - Sufficiency of advertisement - Whether amendment invalid for insufficiency

Land Use Planning and Approvals Act 1993 (Tas), ss38(1) and 42(3)(b).
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Scurr v Brisbane City Council (1973) 133 CLR 242, referred to.
Aust Dig Environment and Planning [51]

REPRESENTATION:

Counsel:
             Appellants:  M E O'Farrell and A B Walker
             Second Respondent:  D R Armstrong
Solicitors:
             Appellants:  Dobson Mitchell & Allport
             Second Respondent:  Don Armstrong

Judgment Number: [2008] TASSC 35
Number of paragraphs: 103

Serial No 35/2008
File No 830/2007

JON REIDER GRUNSETH, SALTEL INC and APOLLO BAY GROUP LLC
v RESOURCE PLANNING AND DEVELOPMENT COMMISSION, KINGBOROUGH COUNCIL and THE HONOURABLE STEVEN KONS ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ

SLICER J
BLOW J
25 July 2008

Order of the Court

Appeal dismissed.

Serial No 35/2008
File No 830/2007

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ
  25 July 2008

The appellants failed with an application for review under the Judicial Review Act 2000, in which they sought an order quashing a decision made by the first respondent ("the Commission") on 13 December 2006 that approved draft amendment 2005-4 to the Kingborough Planning Scheme 2000 ("the Scheme"). They appealed to this Court. The appeal was argued by counsel for the appellants and the second respondent, the Kingborough Council ("the Council"). Neither the Commission nor the third respondent, the Attorney-General, sought to be heard on the issues raised by the appeal.

The area of the municipality includes all of Bruny Island and approximately a similar area of land on the mainland of the State. The amendment related to the subdivision of all of the land that was zoned Environmental Management in the municipality. The Environmental Management zone was previously zoned Rural in the former Bruny and Kingborough planning schemes. It represents a significant part of the municipality, both on Bruny Island and on the mainland. In very brief summary, the amendment substantially reduced the capacity for subdivision within the zone by, for example, increasing the minimum lot size for subdivisions from 5 to 20 hectares, and reducing the maximum lot yield from 20 to 10 lots.

Failure to properly advertise

The first matter raised by…

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 Grunseth v Resource Planning and Development Commission

Details

AGLC: Grunseth v Resource Planning and Development Commission [2008] TASSC 35
Case: [2008] TASSC 35
Decision Date: 25 July 2008

CaseChat Overview and Summary

The appellants, Jon Reider Grunseth, Saltel Inc, and Apollo Bay Group LLC, sought to appeal against a decision of a judge of the Supreme Court of Tasmania to dismiss their application for judicial review of a decision of the Resource Planning and Development Commission (the Commission) to approve a draft amendment to the Kingborough Planning Scheme 2000. The amendment related to the subdivision of land in the municipality zoned "Environmental Management". The amendment reduced the capacity for subdivision within the zone by, for example, increasing the minimum lot size for new subdivisions from 5 hectares to 20 hectares, and reducing the maximum lot yield from 20 lots to 10 lots. The appellants sought an order quashing the decision of the Commission. They contended that the decision was invalid because the Kingborough Council had failed to properly advertise the proposed amendment. The appeal was dismissed. The Full Court found that the non-compliance with the advertising requirements did not result in the amendment being a nullity. It was not the intention of the legislature that non-compliance with any procedural provision of the relevant legislation should result in a purported amendment to a planning scheme being a nullity. The learned primary judge did not err in exercising his discretion not to grant the relief sought by the appellants.

Orders