Gurney v Murphy

[2013] TASSC 27

[2013] TASSC 27

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Gurney v Murphy [2013] TASSC 27

PARTIES:  GURNEY, Chris
  v
  MURPHY, Daniel Jason
  HOBART CITY COUNCIL

FILE NO:  452/2012
DELIVERED ON:  19 June 2013
DELIVERED AT:  Hobart
HEARING DATE:  6 February 2013
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Interpretation and construction – Particular cases – Permit for subdivision requiring grant of right of way to council – Terms of required grant – Whether grant required to empower council to permit public to use servient land for access to reserve.

Aust Dig Environment and Planning [215]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine
             First Defendant:  D A Armstrong
             Second Defendant:  D J D Morris
Solicitors:
             Plaintiff:  Shaun McElwaine + Associates
             First Defendant:  Don Armstrong
             Second Defendant:    Simmons Wolfhagen

Judgment Number:  [2013] TASSC 27
Number of paragraphs:  22

Serial No 27/2013
File No 452/2012

CHRIS GURNEY v DANIEL JASON MURPHY
and HOBART CITY COUNCIL

REASONS FOR JUDGMENT  BLOW CJ

19 June 2013

1. This case concerns a right of way over a track at Ridgeway.  The track runs from the end of Hall Street, across some private land, to the Ridgeway Reserve.  That reserve is on Crown land, and is controlled by the second defendant, the Hobart City Council.  A dispute has arisen as to whether provision should have been made for the public to be permitted to use the right of way to travel to and from the reserve.

1. The track is on land that belongs to the first defendant, Daniel Murphy.  In 2006 he applied to the council for a planning permit for the subdivision of his land to create three residential lots.  The council refused his application.  He appealed to the Resource Management and Planning Appeal Tribunal, and was successful: J Roche and D Murphy v Hobart City Council [2008] TASRMPAT 141.  On 17 June 2008 the tribunal directed the council to issue a permit for the proposed subdivision.  The tribunal required the permit to contain a number of conditions.  Amongst other things, those conditions required Mr Murphy to grant the council a right of way over the track from Hall Street to the Ridgeway Reserve.  Subsequently the council issued the desired permit, the land was subdivided, and a right of way was created.  The rights conferred in respect of the right of way are set out in a schedule of easements that forms part of a registered sealed plan.  Rights of passage and incidental rights were conferred upon "the employees of the City of Hobart and contractors engaged by the City of Hobart", but it was expressly provided in the schedule of easements that the right of access did not "extend to members of the public having access to the easement".

1. The plaintiff, Chris Gurney, is aggrieved by that exclusion.  He contends that that exclusion is inconsistent with the decision of the tribunal.  He has brought this action, seeking a declaration that the final plan of subdivision does not comply with the requirements of the planning permit, and a declaration to the effect that the council should not have caused its seal to be affixed to the final plan of subdivision or caused it to be lodged with the Recorder of Titles, as well as injunctive relief.  No question of indefeasibility of title arises because the unencumbered land is still owned by Mr Murphy.  Nor does any question arise as to the plaintiff's standing to bring this action.  He made a representation to the council in respect of Mr Murphy's subdivision application, and was a party to the proceedings before the tribunal.  He is simply an interested member of the public.  It is clear from the evidence that members of the public routinely used the track in question to travel to and from the reserve until about 2009.

1. Section 23(7) of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act") required that the tribunal's decision in relation to the appeal was to "be given effect to" by the council. The plaintiff is seeking relief on the basis that, so far as the right of way is concerned, the council breached the duty imposed by s23(7) to give effect to the tribunal's decision. He does not contend that the tribunal's decision required the public to be permitted to pass and re-pass over the land that is the subject of the right of way. That would have involved the track in question being dedicated as a public highway, but there is no suggestion that the tribunal required that. The plaintiff contends only that the tribunal's decision required a grant of a right of way in favour of the council by which the council was to be given the power to permit members of the public to travel over the servient land.

1. The right of way that was granted to the council is an easement in gross, ie an easement without a dominant tenement.  Such an easement was unknown to the common law.  However an easement in gross may be granted to a public authority or local authority pursuant to the Conveyancing and Law of Property Act 1884, s90A. The granting of an easement in gross was appropriate in this case since the council is not the owner of the Ridgeway Reserve.

1. The tribunal directed the council to impose 27 conditions on the permit. The conditions relevant to these proceedings are nos 1 and 13. Since making its decision in 2008, the tribunal has twice amended condition no 1 pursuant to s23(5) of the RMPAT Act. That subsection is a "slip rule" which permits the tribunal to correct an error arising from any accidental slip or omission. The council sought clarification of the wording of condition no 1 by an email dated 25 June 2008. The tribunal consequently amended condition no 1, relying on s23(5), but subsequently, following an application by the plaintiff, accepted that the first amendment did not correct the tribunal's original error. The tribunal therefore exercised its power under s23(5) a second time, on 22 January 2013.

1. The required permit conditions were also amended by an order of the tribunal made on 29 May 2008 to substitute a slightly different plan of subdivision.

1. After the first amendment under s23(5), condition no 1 read as follows:

"The use and development shall be substantially in accordance with the documents and drawings that comprise Exhibit A1 and tendered at the hearing of this matter before the Resource Management [and] Planning Appeal Tribunal on 11^th June 2008."

1. By its order of 22 January 2013, the tribunal ordered the amendment of condition no 1 without precisely formulating the words to be added to the condition.  The tribunal said the following:

"The Tribunal was in error in failing to specify in Condition 1 that the use and development is to be substantially in accordance with the documents and drawings that comprise Exhibit A1 and tendered at the hearing as well as the documentation comprising the 'planning application No PLN-06-01018-01 as outlined in Attachment A to the permit except where modified below', as amended by the Tribunal order of 29^th May 2008. The Tribunal's failure to do so was the result of an accidental slip or omission. It is only proper to both acknowledge that error and correct it under section 23(5). There is an order accordingly."

1. Condition no 13, which has never been amended, reads as follows:

"A final site plan be re-submitted showing the Right-of Way extending from Hall Street over Lot 2 to the shared boundary with Council's Ridgeway Reserve, in favour of Hobart City Council.  This specification should be to the approval of the Director, Parks and Customer Services, which approval is not to be unreasonably withheld."

1. The relevant paragraphs in the schedule of easements, forming part of the relevant registered sealed plan, read as follows:

"Lot 1 on the Plan is subject to a Right of Access (in favour of the Hobart City Council) over Right of Way C Variable Width shown on the Plan.

…

'Right of Access' means:

(1)The right for the employees of the City of Hobart and contractors engaged by the City of Hobart:

(a)   To pass across the lot burdened but only within the site of this easement for the purpose of exercising or performing any of its powers, authorities, duties or functions;

(b)   To do anything reasonably necessary for passing across the easement including entering the easement, taking anything onto the easement; and

(c)   Carrying out work within the site of the easement such as maintaining trafficable surfaces.

(2)In exercising those powers the City of Hobart must:

(a)   Ensure all works are done property;

(b)   Cause as little inconvenience as is practicable to the owner or any occupier of the lot burdened;

(c)   Cause as little damage as is practicable to the lot burdened and any improvements on it;

(d)   Make good any damage caused to the lot burdened; and

(e)   Make good any collateral damage.

(3)For the avoidance of doubt the Right of Access does not extend to members of the public having access to the easement."

1. The plaintiff contends that the documentation referred to in condition no 1, including the documentation referred to when the tribunal finally amended that condition, should be taken into account in determining what conditions nos 1 and 13 required.  He contends that it is clear from that material that it was intended that provision was to be made for the public to be permitted to pass over the track that is the subject of the right of way.  The defendants contend that the tribunal did not intend that at all, and that, by condition no 13, the tribunal left it to a council officer – the Director of Parks and Customer Services – to determine the scope of the rights to be conferred by the granting of the easement.

1. In construing a planning permit, the application for the permit and the accompanying plans and documents may only be considered if they are incorporated in the permit expressly or by necessary implication, and only when it is necessary to consider them for the purpose of interpreting the permit: Auburn Municipal Council v Szabo (1971) 67 LGERA 427 at 433 – 434; Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1994) 51 FCR 213 at 222; Neighbourhood Association DP285249 v Watson (2008) 162 LGERA 322 at [389] – [397]. Having regard to the original wording of condition no 1, and having regard to what the tribunal said when it decided to amend that condition on 22 January 2013, I think it is necessary to consider the documentation lodged with the application for the permit in order to determine what the tribunal intended.

1. The only document lodged with the permit application that sheds any light on the tribunal's intentions as to the use of the track that is the subject of the right of way is a document prepared by a company named inspiring [sic] Place Pty Ltd and entitled "MATERIAL IN SUPPORT OF SUBDIVISION APPLICATION prepared for John Roche and Daniel Murphy".  The subject of public access from Hall Street to the Ridgeway Reserve is mentioned at four places in that document.  There are inconsistencies between the proposals noted at some of those places.

1. In some of the relevant passages, reference is made to a piece of land in the north-east corner of the subdivided land which the plan of subdivision shows as 1.273 hectares of public open space.  The dedication of that parcel of land as public open space was required pursuant to the permit conditions.  The right of way runs along the south-west boundary of that parcel of land, between it and two of the residential lots in the subdivision.  The parcel in question represents roughly 5% of the area of land in the subdivision.

1. On page 3 of that document, the following appears:

"In support of this development, the Proponents also propose to:

maintain public access to the Ridgeway Reserve from Hall Street in consultation with Council (this could be achieved via rehabilitating the existing fire trail, and converting it to a shared walking and cycling track, or alternatively constructing a purpose built shared track, and rehabilitating the existing fire trail);

construct a paved access road/driveway, branching off the existing fire trail, to service both 10 ha lots – the road is intended to continue past the residences, linking with existing fire trails in the Ridgeway Reserve to maintain access for fire fighting purposes ...".

1. On page 12 of the document the following appears:

"Social Values Ridgeway Reserve is a popular location for passive recreation, particularly for local residents. Walking, jogging, mountain biking and horse riding are popular activities in the area. The existing fire trails are regularly used by walkers to access surrounding reserves and open spaces. The Proponents have agreed to transfer slightly more than 5% of the subdivided land to the Council for open space purposes. The Proponents also propose to negotiate with Council the location of a public access through the proposed public open space to maintain connections between Hall Street and the Reserve."

1. On page 20 of the document, in a table addressing the potential environmental impact of the subdivision, in a section concerning "Impact on social values", in a column headed "Proposed Mitigation Methods", the following appears:

"The Proponents have agreed to transfer +5% of the subdivided land in the northeastern corner of the property to Council.  This land is considered to be well located in that it borders onto the Ridgeway Reserve, maintaining public access and linkage, and provide [sic] a strategic access point for fire fighting purposes.

Rehabilitation of the existing fire trail, and conversion to a shared path is one option for maintaining public access.  The alternative would be to construct a shared path within the allocated 5%, and completely rehabilitate the existing fire trail."

1. On page 27 of the document, in a table addressing management issues, in a section dealing with vehicular access for fire-fighting purposes, in a column headed "Proposed Mitigation Methods", the following appears:

"The proposed development includes an upgrade to a section of the existing fire trial [sic], and the construction of a new paved access road following the contours and providing a gentler grade, reducing the likelihood of erosion.  The new section of road will be for private access only, with pedestrian and fire management access to the reserve maintained on the existing fire trail, or purpose built track within the allocated 5%."

1. The first, third and fourth of the passages that I have quoted set out a proposal that public access from Hall Street to the Ridgeway Reserve was to be maintained in one of two ways – either via the existing fire trail, which coincides with the right of way, or by a new route through the newly dedicated public open space.  The second of the passages that I have quoted refers only to a proposal that public access from Hall Street to the Ridgeway Reserve be maintained by a new route through the newly dedicated public open space.  Nowhere in any of the relevant documents is there any reference to a proposal that public access along the existing track is to be anything greater than a possibility which, because of the possible adoption of an alternative route through the public open space, might not come to pass.  It follows that the relevant documents do not support the plaintiff's contention that it was intended that provision was to be made for the public to be permitted to pass over the track that is the subject of the right of way.  That was contemplated only as a possibility, to which there was an alternative. 

1. Counsel for the plaintiff submitted to me that the tribunal "plainly did not engage the option … of constructing the alternative shared path within the allocated 5% public open space combined with a requirement to rehabilitate the existing fire trail".  That is true, but the tribunal did not choose the alternative either.  It left it to the council to decide what to do. 

1. The plaintiff has failed to establish that the tribunal's decision required the terms of the easement to confer on the council a power to permit the public to pass over the servient land.  His action must therefore be dismissed.