Gunns Ltd v Kingborough Council and Stuart Young
[2003] TASSC 44
•26 June 2003
[2003] TASSC 44
CITATION: Gunns Ltd v Kingborough Council and Stuart Young [2003] TASSC 44
PARTIES: GUNNS LTD
v
KINGBOROUGH COUNCIL
YOUNG, Stuart
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 11/2003
DELIVERED ON: 26 June 2003
DELIVERED AT: Launceston
HEARING DATE: 17 June 2003
JUDGMENT OF: Evans J
CATCHWORDS:
Environment and Planning – Building control – Council consent and approval – Consents, approvals and permits – Conditions – Monetary contributions, securities and bonds – Whether monetary payment to the interest of an adjoining land owner ultra vires.
Doma v City of Hobart [1983] Tas R 132; Doma v City of Hobart A35/1981; Jumal Developments Pty Ltd v Parramatta City Council (1969) 17 LGRA 111, referred to.
Aust Dig Environment and Planning [319]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine
First Respondent: Submitted to the order of the court
Second Respondent: M Brett
Solicitors:
Appellant: Shaun McElwaine
First Respondent: D Armstrong
Second Respondent: FitzGerald & Browne
Judgment Number: [2003] TASSC 44
Number of paragraphs: 8
Serial No 44/2003
File No LCA 11/2003
GUNNS LIMITED v KINGBOROUGH COUNCIL and
STUART YOUNG
REASONS FOR JUDGMENT EVANS J
26 June 2003
The appellant appeals against one order, amongst many, made by the Resource Management and Planning Appeal Tribunal ("the Tribunal") when dealing with an appeal against orders made by the Kingborough Council referable to a development application lodged by the appellant. The application related to road construction, forestry harvesting operations, and forestry plantation operations undertaken by the appellant on land at Middleton. The order appealed against is a condition that:
"The applicant (Gunns Ltd) is to pay S Young within 1 month after this decision the sum of $4,000 as a contribution to the cost of a poisoned-wildlife-proof enclosure for the organically certified animals on his farm."
As a consequence of the approval of the development application, 1080 poison was likely to be applied once in the lifetime of any forestry plantation established by the appellant within a specified area of the land subject to the approval. The Tribunal found that Stuart Young, the beneficiary named in the condition to which objection is taken, jointly owned a property which shared approximately 130 metres of boundary with the development land, and that Mr Young was in the processes of obtaining certification of the organic status of the modest farming activities he was conducting on that property. Consistent with the Kingborough Planning Scheme 1988, cl 3.9.2(f), it was incumbent upon the Tribunal to consider "whether the proposed development would adversely affect the existing and possible future use or uses of adjacent land", and if so, whether any condition to alleviate that effect should be imposed. The Tribunal accepted evidence that 1080 contamination of the Young property would cause it to lose or have suspended the certified organic status being sought. Against this background, the Tribunal considered whether, for the protection of the Young property, an electric fence, extending for more than two kilometers and costing approximately $40,000, should be erected. The Tribunal decided that a proper balance did not require the erection of such a fence, but that instead it would be appropriate to impose a condition as to the proximity of 1080 poisoning to the Young property together with the condition which is the subject of this appeal. The Tribunal explained that this condition was designed to ameliorate, to a reasonable extent, the potential impact on the Young property of the use of 1080 on the development property.
Counsel for the appellant submits that the Tribunal had no jurisdiction to impose the challenged condition as its powers in that regard are circumscribed by the Land Use Planning and Approvals Act 1993, s51(4), which applies to the permit the appellant obtained, that is a permit governed by the Act, s58. The Act, s51(4), provides:
(4) A permit to which section 58 applies may be granted subject to such conditions or restrictions as the planning authority may impose with respect to any matter specified in the relevant planning scheme or special planning order."
Counsel submits that in conformity with this provision, the Tribunal may only impose conditions "with respect to any matter specified in the relevant planning scheme". As I understand the argument advanced in the interests of the appellant, it is contended that the effect of these words is that a condition may only be imposed if there is a provision in the applicable planning scheme, in this case the Kingborough Planning Scheme, which specifically authorises the imposition of a condition of the nature of that imposed, that is, a condition requiring a developer to make a monetary payment to an adjoining land owner. Support for this contention was said to be found in the construction placed on the Act, s57(1), in its then form, in Douglas v Hobart City Council A27/1996, a decision of Zeeman J. The Act, s57(1), identified (and in an amended form still identifies) the kind of applications for a permit to which the balance of that section applies. The purpose of that subsection is quite different to that of the Act, s51(4), which provides for the conditions which may be imposed with respect to a permit to which the Act, s56, applies. The construction placed on the Act, s57(1), by Zeeman J provides me with no assistance in construing the Act, s51(4).
The Scheme, cl 3.9.2(f) provides:
"Before granting with or without conditions or refusing a planning approval for a development, the Council shall take into consideration:-
(f) whether the proposed development would adversely affect the existing and possible future use or uses of adjacent lands, and vice versa."
In the light of the Tribunal's recognition of a need to ameliorate the potential impact of 1080 on land adjoining the development land, it is manifest that a condition which achieved that end would be within the Tribunal's obligations pursuant to this clause in the Scheme and would be within the Tribunal's power to impose conditions "with respect to any matter specified in ... the scheme".
Counsel for the appellant submits that the subject condition is beyond the Tribunal's power as a condition requiring a developer to make a money payment to an adjoining land owner is by its nature beyond power. No provision in the Act or the Scheme indicates that such a provision is beyond power. The Scheme contains provisions which have the effect of empowering the authorising planning authority to impose conditions which oblige a developer to incur expenses; an example is cl 3.9.2(g), pursuant to which conditions may be imposed on a developer as to the treatment of the site generally, including providing adequate landscaping, amenity facilities and illumination. The Scheme, Sch 9, requires a developer who lodges a landscape plan to provide a suitable bond or guarantee as to compliance with the plan. Schedule 5 of the Scheme, which relates to parking space requirements, provides for the payment by a developer of cash in lieu of the required number of parking spaces where a developer is not or cannot provide the required spaces. Provisions such as these demonstrate that the imposition of a condition which requires a developer to incur an expense or make a money payment are within the tenor of the Scheme.
Generally in the context of legislation and planning schemes governing development, it is recognised that a condition requiring the payment of money is not, for that reason alone, ultra vires; Doma v City of Hobart [1983] Tas R 132 (Full Court) and Doma v City of Hobart A35/1981 (Everett J). For quite understandable reasons, a levy of money as a condition of the exercise of a statutory discretion is regarded with suspicion and may be closely scrutinised to ensure that it is a lawful exercise of a conferred power, not a tax; Jumal Developments Pty Ltd v Parramatta City Council (1969) 17 LGRA 111 at 113. Obviously enough, this concern really only arises when the beneficiary of the levy of money is the entity that imposes the condition; that is not the case in relation to the condition under consideration.
The authorities contain a number of cases upholding the validity of conditions which require a money payment by a developer to the planning authority that approved the development. Counsel have not located any similar authorities in relation to a condition which requires a developer to make a money payment to the benefit of an adjoining land owner. Counsel for the appellant submits that in the absence of any authorities recognising the validity of such a condition, the power of a planning authority to require a money payment as a condition of the approval of a development should be confined to a money payment made to that authority. I do not agree. I can find no basis in the Act or the Scheme for implying such a limitation on the power of the planning authority. Indeed, I consider that such a limitation would place an undesirable fetter on the capacity of the authority to achieve the objects of the Scheme. It is not difficult to envisage a variety of circumstances in which a developer's modest financial contribution towards an undertaking on an adjoining owner's property could alleviate the adverse impact the development would have on that property. A condition to that end could be far more satisfactory, and less burdensome, than a requirement that the developer achieve the same outcome by undertaking an expensive project on the development land.
I conclude that a condition which achieves the objective identified by the Tribunal, that is, a condition which ameliorates to a reasonable extent the potential impact on the Young property of the use of 1080 on the development property, would be within power. However, the condition imposed by the Tribunal does not achieve that objective; it simply obliges the appellant to pay $4,000 to Mr Young. The condition imposes no obligation on Mr Young as to the use of that money; he is free to use it however he likes. The condition should ensure that the money is used only on the construction on the Young property of an enclosure to protect domestic animals from wildlife which may be poisoned. In the absence of such a requirement, it cannot be said that the condition will ameliorate to a reasonable degree the potential impact on the Young property of the use of 1080 on the development property. The condition as drafted is beyond power and must be set aside. As I am satisfied that the objective that the Tribunal sought to achieve by the condition is within power, I consider it appropriate to utilise the Court's power pursuant to the Resource Management and Planning Appeal Tribunal Act, s25(6)(b)(i) to substitute a condition which achieves the intended objectives. I will hear counsel on the form the substitute condition should take.
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