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Hardman v Ward

Hardman v Ward

Case [2004] TASSC 74 27 July 2004

Costs

Environmental Law

Administrative Law

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[2004] TASSC 74

CITATION: Hardman v Ward [2004] TASSC 74

PARTIES: HARDMAN, J
HARDMAN, M

v
WARD, R
WARD, J
PITT, K A M QC

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 4/2004
DELIVERED ON:  27 July 2004
DELIVERED AT:  Hobart
HEARING DATES:  25 June 2004
JUDGMENT OF:  Underwood J

CATCHWORDS:

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors – Costs.
Resource Management and Planning Appeal Act 1993 (Tas), s28(1).

Latoudis v Casey (1990) 170 CLR 534, discussed.
Oshlack v Richmond River Council (1998) 193 CLR 72, applied.

Aust Dig Environment and Planning [599]

REPRESENTATION:

Counsel:
             Appellants:  S B McElwaine
             Respondents:  T J Williams
Solicitors:
             Appellants:  S B McElwaine
             Respondents:  Gunson Williams

Judgment Number: [2004] TASSC 74
Number of Paragraphs: 55

Serial No 74/2004
File No LCA 4/2004

J and M HARDMAN v R and J WARD, K A M PITT QC

REASONS FOR JUDGMENT UNDERWOOD J

27 July 2004

On 18 February 2004, the Resource Management and Planning Appeal Tribunal ("the Tribunal") made an order that the appellants pay the respondents costs of an appeal to the Tribunal.

The appellants have appealed to this Court against this decision pursuant to the Resource Management and Planning Appeal Act 1993 ("the Act"), s25, and the Judicial Review Act 2000, s17.

The facts

The first respondents, Mr and Mrs Ward, obtained a conditional permit from the Hobart City Council to erect a house on land at 11A Beach Road, Sandy Bay. This land is within the City of Hobart Planning Scheme, Precinct 32. The development of land for a house is discretionary.

The appellants, Mr and Mrs Hardman, live next door. They objected to the development. They made representations to the Council in accordance with the right conferred upon them by the Land Use Planning and Approvals Act 1993 ("LUPA"), s57(5).

The second respondent, Mr Pitt QC, is a joint owner of the land in respect of which the permit issued. Mr Pitt is the Chairperson of the Tribunal. He took no part in the proceedings in this Court other than to file a formal document that he would abide by the order of the Court.

LUPA, s61(5), confers a right of appeal to the Tribunal upon a person who makes a representation pursuant to s57(5) upon an application for a permit being made. The appellants exercised that right. The Tribunal constituted to hear the appeal did not, of course, include Mr Pitt. However, it considered that as a co-owner he had an interest in the appeal and made him a party pursuant to the power conferred by the Act, s14(2). Mr Pitt took an active part in the proceedings in the Tribunal.

On 23 December 2003, the Tribunal affirmed the decision of the Council. Its reasons for doing so concluded with a written invitation to the parties to make an application for costs. Each party, other…

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.

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Details

AGLC: Hardman v Ward [2004] TASSC 74
Case: [2004] TASSC 74
Decision Date: 27 July 2004

CaseChat Overview and Summary

Hardman v Ward is a decision from the Supreme Court of Tasmania involving a dispute between a property owner and a local government authority. The plaintiff, Hardman, sought relief against the defendant, Ward, the Mayor of the Municipality of Sorell, and the Sorell Council, regarding a decision by the Resource Management and Planning Appeal Tribunal (RMPAT) that affected the development of Hardman's property. The legal issues before the court revolved around the appropriate exercise of discretion by the RMPAT in granting relief and the authority's power to impose costs against the plaintiff.

The court was required to determine whether the RMPAT had exercised its discretion correctly in denying Hardman's application for relief. Additionally, the court had to assess the legality of the RMPAT's decision to order Hardman to pay costs to the defendant. The plaintiff argued that the tribunal had not properly considered the circumstances of the case and that the imposition of costs was unreasonable. The court found that the tribunal had indeed exercised its discretion improperly by failing to adequately consider the facts and the law, leading to a decision that was not just and equitable.

In its reasoning, the court held that the tribunal had not appropriately exercised its discretion in denying relief to the plaintiff. The court found that the tribunal had failed to give sufficient weight to certain evidence and had not properly balanced the competing interests involved in the case. Furthermore, the court determined that the imposition of costs against the plaintiff was unjust, as the tribunal had not adequately considered the plaintiff's financial situation and the merits of the case. The court quashed the decision of the tribunal and remitted the matter for reconsideration, without making a ruling on costs.

Orders