Heatley v Glenorchy City Council
[2004] TASSC 94
•3 September 2004
[2004] TASSC 94
CITATION: Heatley v Glenorchy City Council [2004] TASSC 94
PARTIES: HEATLEY, R T
v
GLENORCHY CITY COUNCIL
TOTE TASMANIA PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 50/2004
DELIVERED ON: 3 September 2004
DELIVERED AT: Hobart
HEARING DATES: 5 August 2004
JUDGMENT OF: Evans J
CATCHWORDS:
Administrative Law – Statutory appeals from administrative authorities to courts – In general – Appeal on question of law – No error in leaving safety issue to alternative authority.
Aust Dig Administrative Law [109]
REPRESENTATION:
Counsel:
Appellant: J F W Crotty
Respondents: S P Estcourt QC
Solicitors:
Appellant: James Crotty
Respondent: N A Beattie
Judgment Number: [2004] TASSC 94
Number of Paragraphs: 12
Serial No 94/2004
File No LCA 50/2004
R T HEATLEY v GLENORCHY CITY COUNCIL
and TOTE TASMANIA PTY LTD
REASONS FOR JUDGMENT EVANS J
3 September 2004
This appeal relates to the Glenorchy City Council's grant of a conditional development permit to the second named respondent, Tote Tasmania Pty Ltd, in respect of alterations at the Elwick racecourse. The alterations include the installation of an underpass below the back straight and raising the level of the track along that straight.
The appellant, Mr R T Heatley, was one of two persons who appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal") against the grant of the permit. That appeal was dismissed by the Tribunal. The appellant appeals against that dismissal pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25, which allows a party to an appeal before the Tribunal to appeal to this Court against a decision of the Tribunal on a question of law.
For relevant purposes, the ground of appeal pursued before the Tribunal was that the development authorised by the permit was contrary to the public interest, in that there was a potential for injury arising from raising sections of the track without providing adequate run-off areas at about the same level and/or adequate safety barriers.
By his appeal to this Court the appellant seeks an order refusing the application for the permit or, alternatively, the appellant seeks an order that the permit be granted, subject to an additional condition that:
"Prior to the commencement of first use for racing or training activities of any raised section of track allowed by this permit, safety barriers are to be designed and installed around the outer perimeter of the track or tracks and in the vicinity of the underpass. The design and installation of the safety barriers are to be certified as safe for racing and training activities by the Chairman of Stewards. Evidence of such certification is to be provided to Council prior to the commencement of first use for racing or training of any raised section of track allowed by this permit."
Due to intervening events, the only grounds of appeal pursued on behalf of the appellant before this Court are:
·"The Tribunal erred in law in that on a proper construction and application of the Glenorchy Planning Scheme 1992 ('the scheme') additional certification with respect to matters of safety ought to have been imposed in the development application;" and
·"The Tribunal erred in law in that it held that the evidence did not indicate there would be likely to be any spectators in the vicinity where the raised sections of track may constitute a hazard when such a finding was not open to them on the evidence."
It is apparent from the submissions advanced in support of the appeal that the appellant's primary concern is that a condition similar to that proposed in his notice of appeal should be imposed.
In its decision, the Tribunal directly addressed the issue raised as to safety where portions of the track were to be raised in order to pass over the new underpass. The Tribunal accepted that safety was a relevant planning issue, but queried the legislative regime that was best suited to providing for the appellant's safety concerns. The Tribunal accepted evidence that the concerns raised by the appellant were covered by legislation governing occupational health and safety and said:
"The matter of safety is a relevant planning issue, but the question is under what regime the best form of provision for those matters, is made. The evidence satisfies the Tribunal that while safety falls within the jurisdiction of the Tribunal, occupational health and safety in this instance is a matter which is more appropriately left to the legislative regime which directly relates to that area. The question of who is an appropriate person to be satisfied of the safety of the raised track, and of the runoff areas and safety fences, is one which is, the Tribunal is satisfied, clearly within the field of the Occupational Health and Safety authorities."
In reaching this conclusion, the Tribunal expressly, and correctly, acknowledged that safety was an issue within its jurisdiction. See the Land Use Planning and Approvals Act 1993, s5 and Sch1, Pt1, cl 2 and Pt2(f), and the Glenorchy Planning Scheme 1992, cl 6.2(d). Counsel for the appellant challenges the accuracy of the Tribunal's conclusion insofar as it suggests that the entity with appropriate legislative authority to deal with the safety issues in question is an occupational health and safety authority. In fact, the entity with the appropriate legislative authority is the Director of Racing appointed under the Racing Act 1983, s5, which provides that the duties of the Director include maintaining the probity and integrity of the racing industry. The Racing Regulation Act 1952, s26, relevantly provides:
"26 ¾ (1) …
(2) No racecourse shall be registered under this Division unless the person applying for the registration thereof proves to the satisfaction of the Director that ¾
(a)the racecourse is safe for use as a racecourse;
(b)the buildings and structures on the racecourse are sufficient and suitable for the purposes for which they are to be used and that there are no buildings or structures on the racecourse that may endanger the safety of, or injure, any person resorting thereto;
(c)…
(d)...
(3) For the purposes of this section ¾
(a)buildings and structures shall be deemed to be sufficient and suitable for the purposes for which they are to be used; and
(b)…
if the buildings, structures, conveniences, and facilities, respectively, comply with such requirements as may be prescribed or, in the absence of regulations in that behalf, as the Director may determine."
The references to the Director in the above section are references to the Director of Racing. Whilst it may well be that counsel for the appellant's contention that the Director of Racing may not properly be characterised as an occupational health and safety authority, this is of no consequence. What would be of consequence would be the absence of any legislative scheme beyond that of the Tribunal that directly related to the safety issues in question. That consequence does not arise, as plainly the Director of Racing has the power to deal with these issues and one might reasonably infer that the Director is in a better position than the Tribunal to address the issues and to monitor compliance with any requirements imposed referable to them. The Tribunal did not err in law by declining to exercise the jurisdiction it had in relation to the issues of safety raised by the appellant and in allowing those issues to be dealt with under a legislative regime that directly relates to them. The first ground of appeal is not sustained.
The second ground of appeal is that the Tribunal erred in law in that it held that the evidence did not indicate that there would be likely to be any spectators in the vicinity of the raised sections of track that may constitute a hazard. The sections of track in question are on the back straight which is on the opposite side of the course to the spectator area. The spectator area is fenced off and adjoins the home straight. Nevertheless, it must be possible for spectators, by some means or other, to access the sections of track in question. Mr Eames, a retired jockey, who gave evidence to the Tribunal, said:
"Well, there possibly could be people there looking over the fence, like, say for instance on Cup Day like they get big crowds at Elwick. That's about the only day of the year they get a decent crowd there. But, I mean, you could have people looking over the fence around the back and all that sort of thing, yes."
This possibility does not undermine the validity of the Tribunal's finding that it was not likely that there would be spectators in the vicinity of the relevant sections of the track. Evidence that an occurrence is possible is not inconsistent with a finding that it is unlikely. If the situation was otherwise and the Tribunal's finding in this regard was erroneous, it would be an error of fact not an error of law. The appellant must establish an error of law in order to succeed. The second ground of appeal is not made out.
The appeal is dismissed.
0
0
0