Helbig v Resource Management and Planning Appeal Tribunal
[2008] TASSC 28
•11 June 2008
[2008] TASSC 28
CITATION:Helbig v Resource Management and Planning Appeal Tribunal [2008] TASSC 28
PARTIES: HELBIG, Fritz Paul Dieter
v
RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL
KING ISLAND COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 907/2007 and 259/2008
DELIVERED ON: 11 June 2008
DELIVERED AT: Hobart
HEARING DATE: 13, 22, 28 February, 19 March, 6 May 2008
JUDGMENT OF: Evans J
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Error relating to facts – Misrepresentation of facts to tribunal – Relief if misrepresentation is of no consequence.
Judicial Review Act2000 (Tas), s27.
Von Stalheim v Anti-Discrimination Tribunal and Attorney-General for the State of Tasmania [2007] TASSC 9, referred to.
Aust Dig Administrative Law [1031]
REPRESENTATION:
Counsel:
Applicant: K J Stanton
Respondent (RMPAT): No appearance
Respondent (Council): G W Tremayne
Solicitors:
Applicant: Walsh Day
Respondent (RMPAT): No appearance
Respondent (Council): Jackson Tremayne & Fay
Judgment Number: [2008] TASSC 28
Number of paragraphs: 32
Serial No 28/2008
File Nos 907/2007
259/2008
FRITZ PAUL DIETER HELBIG v RESOURCE MANAGEMENT AND
PLANNING APPEAL TRIBUNAL and KING ISLAND COUNCIL
REASONS FOR JUDGMENT EVANS J
11 June 2008
I will not detail the tortuous path that these proceedings have taken before this Court, it does not bear repeating. The proceedings challenge a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") to the effect that Fritz Helbig, who I will refer to as "the applicant", had no standing to appeal to the Tribunal against a decision of the King Island Council ("the council"). In their final form, the proceedings involve:
·an originating application issued by the applicant seeking a review of the Tribunal's no standing decision pursuant to the Judicial Review Act 2000; and
·an appeal against that decision by the applicant pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25(1).
The decision of the council that was the subject of the appeal to the Tribunal was the council's approval of its own application for a permit to erect a public amenities building at Naracoopa. The council gave notice of that application as required by the Land Use Planning and Approvals Act 1993 ("the Act"), s57(3). The Act, s57(5) provides:
"57 ¾ (5) Any person may make representations relating to the application during the period of 14 days commencing on the date on which notice of the application is given under subsection (3) or such further period not exceeding 14 days as the planning authority may allow."
The Act, s61(5), relevantly confines the entitlement to appeal to the Tribunal against the grant of a permit to "any person who … has made a representation under section 57(5)".
The applicant did not make a representation to the council in relation to the application within the period of 14 days as prescribed by s57(5). However, by letter dated 29 August 2007, the applicant, by his solicitors, wrote to the council and for present purposes the relevant portion of that letter is as follows:
"Dear Sir
RE:DA 050708 Amenities building at State Coastal Reserve, the Esplanade, Naracoopa
I act for Mr Dieter Helbig, who lives at Beach Road, Naracoopa, and make this representation on his behalf in relation to the above Development Application. I understand that this representation is made outside the advertised time and would ask that it be considered. The reason for the lateness is Mr Helbig did not receive the notice until after the closing date for representations.
Mr Helbig objects to the proposed development on the following basis:
… "
The council approved its own application for a permit and the applicant lodged an appeal against that decision to the Tribunal. The council notified the Tribunal that it disputed the Tribunal's jurisdiction to hear the appeal on the basis that the applicant had no right to appeal as he had not made a representation with respect to the application for the permit within the period of 14 days as prescribed by s57(5). As to that issue, the information and submissions before the Tribunal included:
·A letter to the Tribunal from the council's solicitors, Jackson Tremayne & Fay dated 8 November 2007, containing the following:
"Dear Sir
fpd helbig –v- king island council - no 352/07p
We refer to the preliminary conference held in this matter on 1 November last and note the Tribunal's order that we provide written submissions addressing the issue of whether the Tribunal has jurisdiction to entertain Mr Helbig's purported appeal.
By way of background, we note the following chronology:
1A development application for the erection of a public amenities building was received by King Island Council (the Council) on 3 August 2007.
2The Council gave notice, pursuant to section 57(3) of the Land Use Planning and Approvals Act 1993 (the Act) and as prescribed in Regulation 8(1) of the Land Use Planning and Approvals Regulations 2004 (the Regulations) as follows:
(a)The application was advertised in daily newspapers circulating generally in the area relevant to the application, being The Advocate newspaper and the King Island Courier newspaper, on Wednesday, 8 August 2007; and
(b)Displayed the application and documentation at Council Chambers in Meech Street, Currie, King Island, during office hours between 8:00 am and 5:00 pm Monday to Friday inclusive from 8 August 2007 until 22 August 2007; and
(c)Gave notice in accordance with Regulation 8(1)(c) of the Regulations to the owners and occupiers of all properties adjoining the land, including Mr Helbig, by letter dated 6 August 2007; and
(d)displayed notices on the land the subject of the application, from 6 August 2007.
3A letter dated 29 August 2007 was received by the Council via facsimile on 29 August 2007 from Walsh Day Williams, acting on behalf of Mr Helbig, purporting to be a representation regarding the Development Application 0507/08.
4The Council replied to Walsh Day Williams by letter dated 5 September 2007 in the following terms, formal and irrelevant parts omitted:
'Your correspondence of the 29th instant, providing comment on the proposed development, has been received and noted. I wish to advise you that though the correspondence cannot be deemed a representation for the purposes of Section 57(5) of the Land Use Planning & Approvals Act 1993, it shall be presented to Council for consideration as a matter of curtesy' [sic].
The Tribunal does not have jurisdiction to entertain Mr Helbig's purported appeal for the following reasons:
1In accordance with Council's notice provided pursuant to section 57(3) of the Act, the time for making representations under section 57(5) of the Act expired 22 August 2007;
2At no time did Council extend the time allowed during which persons could make representations under section 57(5);
3A document purporting to be a section 57(5) representation was received by the Council on 29 August 2007, seven (7) days beyond the time stipulated for the making of representations;
4The Council, on 5 September 2007 wrote to Walsh Day Williams, acknowledging receipt of Walsh Day Williams' correspondence providing 'comment' of the proposed development. Council's letter did not amount to an extension of the time allowed to make representations;
5As no representation has been received from or on behalf of Mr Helbig under section 57(5) of the Act, he has no right of appeal under section 61 of the Act.
Summary
Not having made a representation under section 57(5) of the Act, Mr Helbig does not have a right of appeal under section 61 of the Act. Accordingly, the Tribunal does not have jurisdiction to entertain Mr Helbig's purported appeal."
·A letter from the applicant's solicitors to the Tribunal dated 16 November 2007, containing the following:
"Dear Sir
RE:HELBIG –v- KING ISLAND COUNCIL —352/07P
We refer to the written submissions of the respondent dated 8th November 2007 and write in response to the same on behalf of the applicant.
The facts outlined in the respondent's chronology are not disputed. The applicant adds that:
1The letter from Walsh Day Williams dated 29 August 2007 referred to in the paragraph numbered 3 in the letter of 8th November 2007 from Jackson Tremayne & Fay is annexed hereto and marked 'A'.
2The application for a discretionary permit to erect an amenities block at Naracoopa was brought by the Council as developer to itself as planning authority.
3On the 26th September 2007, Jackson Tremayne & Fay, acting on behalf of the Council, forwarded a notice of the Council's decision to grant a Discretionary Permit pursuant to section 57(3) of the Land Use Planning and Approvals Act 1993 (the Act) to the applicant's solicitors.
We submit that the time allowed for representations was extended by the Council by reason of its conduct and therefore the Applicant has standing to bring his appeal under section 61 of the Act.
The applicant's representation was received outside the 14 day period allowed by s57(5) of the Act. However, Council can extend the time limited by s57(5) of the Act for representations. To do that it need not receive a specific request for extension or expressly grant the extension. If by its conduct the Council in fact extends the time for making a representation, that is sufficient even if it does not say that is what it is doing.
It is submitted that the Council allowed a further period for the Applicant to make his representation within the meaning of s57(5) of the Act. That is because at all times the Council treated the applicant as if he had made a representation pursuant to s57(5) by:
1 Acknowledging the receipt of the representation;
2 So acknowledging receipt of the representation without averting to the fact that the representation had been received out of time or rejecting the request in the representation for an extension of time for it to be considered;
3 Presenting the representation to Council for consideration before Council made its decision as to the application for a permit;
4 Considering the representation before making its decision as to the application for a permit;
5 The Council granted the application not withstanding the representation;
6 Giving the Applicant notice of its decision pursuant to Section 57(7) of the Act."
·A letter from the applicant's solicitors to the Tribunal dated 19 November 2007, containing the following:
"Dear Sir,
re: helbig –v- king island council – 352/07p
We refer to our written submissions on behalf of the applicant dated 16th November, 2007 and seek to make the following further submissions.
Further to my submission that the letter from the Council dated 5 September 2007 to the Applicant's solicitor is not inconsistent with the conclusion that the Council treated the representation as a representation under section 57(5) I submit that only the Council had the power to determine the status of the representation. There is no evidence of a delegation to the Council officer writing the letter which would authorise the officer to determine the status of the application. That means the letter can effectively be ignored insofar as it does not support the conclusion that the council treated it as a representation under s57(5).
Further, it is submitted that the only way the Council could legitimately take the representation into account in making its decision was if it was a representation pursuant to section 57(5). By taking it into account it treated the representation as a representation under that provision. The fact that it so treated the application in light of the request for an extension of the time for making the representation means that it must have extended that time. Where the exercise of one power is a precondition to the exercise of another power, the exercise of the subsequent power carries with it the exercise of the first power. The conduct of the Council in considering the representation carried with it the preconditions to it doing so, namely the extension of time for the consideration of the representation even though that was not expressly adverted to."
·A letter from the council's solicitors to the Tribunal, dated 21 November 2007, containing the following:
"Dear Sirs
fpd helbig v king island council - no 352/07p
We refer to Walsh Day Barristers and Solicitors' letter to the Tribunal dated 16 November last, providing written submissions on behalf of Mr Helbig in response to Jackson Tremayne & Fay's previous written submissions dated 8 November 2007.
We provide the following submissions by way of reply on behalf of the King Island Council.
The additional facts noted by the applicant at items 1 to 3 on page one of Walsh Day's written submissions are not disputed.
It is denied that the Council's treatment of Mr Helbig's purported representation amounted to an extension 'by conduct' of the time allowed for representations under section 57(5). It is further denied that at all times the Council treated Mr Helbig as if he had made a representation under section 57(5).
In respect to the numbered items at page two of the applicant's submissions, we note the following:
1Council acknowledged receipt of Mr Helbig's letter 'providing comment';
2In contrast to what is alleged, Council did advert to the fact that the purported representation had been received out of time. As noted in our previous submissions, Council replied to Walsh Day Williams by letter dated 5 September 2007 in the following terms, formal and irrelevant parts omitted:
'Your correspondence of the 29th instant, providing comment on the proposed development has been received and noted. I wish to advise you that though the correspondence cannot be deemed a representation for the purposes of Section 57(5) of the Land Use Planning & Approvals Act 1993, it shall be presented to Council for consideration as a matter of curtesy (sic)'. (my emphasis)
3It is accepted that the letter from Mr Helbig's solicitor was given to the Council but it was not presented as a section 57(5) representation;
4The applicant's correspondence was not considered as a representation, but as a letter 'providing comment';
5This is not disputed, save and except that the applicant's correspondence was not a representation;
6Council gave notice of the decision to the applicant by letter to Walsh Day Williams dated 24 September 2007. Such letter was not a notice pursuant to subsection 57(7) of the Act.
We make the following submissions:
1 Council has not allowed an extension of time for representations to be received, nor treated Mr Helbig's correspondence as a representation, by its conduct.
The Tribunal decision of University of Tasmania v Clarence City Council & Anor [2004] TASRMPAT 129 is on point and provides authority for the submission that the Council's conduct, including its correspondence to Walsh Day Williams of 5 September 2007, does not amount to an extension of the time within which a representation could be made and, or, received under section 57(5).
In that case, the Clarence City Council wrote to parties who had provided correspondence within the time stipulated for representations in the following terms:
'Thank you for your letter regarding the above subdivision. The Application will be considered by Council as soon as possible and your representation will be taken into account at that time...' (my emphasis)
In contrast in that case, the Clarence City Council wrote to parties who had provided correspondence outside the time stipulated for representations in differing terms:
'Thank you for your letter regarding the above subdivision. The Application will be considered by Council as soon as possible and your comments will be taken into account at that time...' (my emphasis)
In that case, the Tribunal, at paragraph 12, said:
It can be seen from the above facts, that at all times Council in its correspondence and notification, referred to a 'representation' when it was referring to a representation within section 57 of the above Act; and that in those documents it differentiated 'comments' from a 'representation'... When Council in its letter of 15 January 2004 to the University, acknowledged receipt of the University's letter of 24 December 2003, it referred to 'comments' rather than a 'representation' being taken into account. At no time on behalf of Council was there any acknowledgment of receipt of a 'representation', or any retrospective or other reference to an extension of the time for a 'representation' past 5 January 2004...
And at paragraphs 15 and 16:
I accordingly find that none of the communications relied upon by the University as constituting an extension of time for representations, whether retrospectively or otherwise, were communications adverting to representations or capable of constituting an extension of time for representations.
Time for receipt by Council of the representation having expired on 5 January, and the representation on behalf of the University not being received by Council until 6 January, the representation was not made within time.
In the instant matter, Council's correspondence of 5 September 2007 to Walsh Day Williams on behalf of the applicant is in similar terms and has the same effect as the correspondence considered in the University of Tasmania case, such correspondence having been held by the Tribunal not to amount to an extension of time under section 57 of the Act.
In the instant matter, Council in fact goes further than Clarence City Council in the University of Tasmania case, in that it specifically points out that the correspondence cannot be deemed a representation for the purpose of section 57(5), despite the fact that it might be presented to Council for consideration.
Further, the letter provided to the applicant's solicitor dated 24 September 2007, enclosing a copy of the discretionary planning permit is not a notice pursuant to subsection 57(7) of the Act, but expressly noted that:
'Please find enclosed a copy of the discretionary planning permit issued on the 21st September in regard to the planning application DA050708. This notice is provided as a curtesy (sic) and does not constitute recognition of your client's right of appeal under section 61 (5) of the Land Use Planning and Approvals Act 1993.'
In contrast, Council wrote to those parties who had made 'representations', in the following terms, formal and irrelevant parts omitted:
'Please find enclosed a copy of the discretionary planning permit issued on the 21st September in regard to the subject development application. This notification identifies you as an entity under section 57(5A) (sic) with a right of appeal against the decision.
If you wish to lodge an appeal in respect of the planning permit, you have fourteen (14) days from receipt of this notice...'
Not only has Council not allowed an extension of the time within which to make a representation under section 57(5) to the applicant, either expressly or by its conduct, it has at all times, by its conduct, sought to differentiate the applicant as someone who had merely 'provided comment' on the development application from those parties who had provided 'representations'.
The end result is that the applicant has not made a representation under section 57(5).
2 As no representation has been received under section 57(5) of the Act, the applicant has no right of appeal under section 61(5) and the Tribunal has no power to allow the appeal pursuant to subsection 22(2) of the Resource Management and Planning Appeal Tribunal Act 1993.
The Tribunal and the Supreme Court of Tasmania have both had occasion to consider this issue before. In the Supreme Court decision of Campbell v Brighton Council (1995) 4 Tas R 430, Zeeman J made the following comments in respect to rights of appeal under section 61 and the Tribunal's ability to use section 22(2) of the Resource Management and Planning Appeal Tribunal Act 1993 to otherwise cure or allow an invalid appeal:
...The applicant's difficulty is that, if it is the case that he did not make representations within the time limited by the Act, s57(5), he had no standing to bring the appeals because he is not a person upon whom the Act confers a right of appeal. It was not a requirement of the Act that he make representations within the period specified by s57(5). He was permitted to do so. I do not consider that s22(2) is capable of being utilised so as to confer a right of appeal upon a person who otherwise does not have, and never has had, such a right in circumstances where that situation is not the result of any person having failed to discharge an obligation imposed by law. That view is consistent with that taken in Dawson (Bradford) Ltd v Dove (1971) 1 QB 330 at 335 and accords with the views expressed by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 258-259 and the authorities there referred to.
It was entirely a matter for the applicant whether he made representations or not. If he made them as permitted by s57(5), then the Act conferred upon him a right of appeal. If he did not, then he had no right of appeal. In such event he did not fail to comply with any requirement of the Act, but rather failed to do that which, had he done it, conferred upon him a right of appeal in the event that the first respondent were to grant a permit. It follows that I am not persuaded that ground two is made out.
In the later Tribunal decision of University of Tasmania v Clarence City Council & Anor [2004] TASRMPAT 129, the Tribunal referred to the decision of Zeeman J in the Campbell case:
17 As observed by Zeeman J in Campbell, the right to appeal depends upon having made a representation; and a failure to utilise the right to make a representation is not properly described as a failure to comply with a requirement, and so does not fall within the power granted by section 22 of the Resource Management Planning Appeal Tribunal Act 1993, to dispense with compliance with a requirement of an Act or other law.
18 The precondition of having made a representation before a party other than the developer has a right to appeal against a permit, is stipulated by section 61 of the Land Use Planning and Approvals Act 1993 which gives rise to the right of appeal; there is no power granted in that Act or elsewhere to dispense with having satisfied that precondition.
19 The consequence is that the University had no right of appeal, and the notice of appeal purportedly lodged by the University is invalid. The Tribunal accordingly has no jurisdiction to entertain the purported appeal.
Summary
In the absence of an extension of time allowed under section 57(5) within which to make representations, (which has not been granted), or an acknowledgment by Council to allow an indulgence and treat the correspondence received on behalf of the applicant as a representation (which has not occurred), the correspondence received by Council on 29 August 2007 from Walsh Day Williams on behalf of the applicant does not amount to a representation under section 57, and specifically subsection 57(5) of the Act.
Not having made a representation under section 57 of the Act, the applicant does not have a right of appeal under section 61 of the Act, and the Tribunal does not have power to validate an otherwise invalid appeal. Accordingly, the Tribunal does not have jurisdiction to entertain the applicant's purported appeal.
We note that, by letter dated 19 November 2007, the applicant's solicitors have sought to make further submissions over and above those provided in their letter of 16 November last. Those further submissions are provided outside the time allowed for the applicant's submissions in response and outside the additional time granted by the Tribunal on 15 November 2007. In any event, we submit that they do not assist the applicant's case. It is clear from the Tribunal's decision in the University of Tasmania case cited above, that a Planning Authority can consider correspondence or comment received outside the time allowed under section 57(5), and such conduct will not automatically give that correspondence or comment the status of a representation under section 57(5).
Yours faithfully"
In written reasons dated 30 November 2007, the Tribunal dismissed the applicant's appeal on the basis that he had no standing to bring it. The reasons are as follows:
"REASONS FOR DECISION
1Mr Helbig has purported to appeal to the Resource Management and Planning Appeal Tribunal (the 'Tribunal') in respect of a permit that the King Island Council (the 'Council') granted to permit the construction and use of a public amenities building at Naracoopa on King Island. Mr Helbig claims the right to appeal pursuant to Section 61(5) of the Land Use Planning and Approvals Act 1993 (the 'Land Use Act') being 'a person who has made a representation' under Section 57(5) of the same Act. The issue that arises is whether in fact Mr Helbig made a representation in terms of that provision. If he did then he has standing to bring the appeal. If he did not then he has no such standing and his appeal is incompetent.
Facts
2 The following were agreed facts:
'IA development application for the erection of a public amenities building was received by King Island Council (the "Council") on 3 August 2007.
2The Council gave notice; pursuant to section 57(3) of the Land Use Planning and Approvals Act 1993 (the "Act") and as prescribed in Regulation 8(1) of the Land Use Planning and Approvals Regulations 2004 (the "Regulations") as follows:
(a)The application was advertised in daily newspapers circulating generally in the area relevant to the application, being The Advocate newspaper and the King Island Courier newspaper, on Wednesday, 8 August 2007; and
(b)Displayed the application and documentation at Council Chambers in Meech Street, Currie, King Island, during office hours between 8.00 am and 5.00 pm Monday to Friday inclusive from 8 August 2007 until 22 August 2007; and
(c)Gave notice in accordance with Regulation 8(1)(c) of the Regulations to the owners and occupiers of all properties adjoining the land, including Mr Helbig, by letter dated 6 August 2007; and
(d)displayed notices on the land the subject of the application, from 6 August 2007.
3A letter dated 29 August 2007 was received by the Council via facsimile on 29 August 2007 from Walsh Day Williams, acting on behalf of Mr Helbig, purporting to be a representation regarding the Development Application 0507/08.
4The Council replied to Walsh Day Williams by letter dated 5 September 2007 in the following terms, formal and irrelevant parts omitted:
'Your correspondence of the 29th instant, providing comment on the proposed development, has been received and noted. I wish to advise you that though the correspondence cannot be deemed a representation for the purposes of Section 57(5) of the Land Use Planning & Approvals Act 1993, it shall be presented to Council for consideration as a matter of curtesy [sic].'
3 Mr Helbig's argument is as follows:
·A council has power to extend the time limit by Section 57(5) of the Land Use Act for representations.
·There is no need to receive a specific request so to do; by its conduct a council may in fact extend time for the making of a representation;
·That in fact occurred in this case because:
oThe Council acknowledged the receipt of the 'representation' made by Mr Helbig;
oBy so acknowledging the receipt of that 'representation' without averting to the fact that the representation had been received out of time or rejecting the request in the representation for an extension of time for it to be considered;
oBy presenting the representation 'to [the] Council for consideration before the Council made its decision as to the application for a permit';
oBy considering the 'representation' before making its decision as to the application for a permit;
oThe Council granting the application that was the subject of the representation:
oGiving the Applicant notices of its decision pursuant to Section 57(7) of the Land Use Act.
4This argument may be shortly disposed of. The Council simply did not acknowledge receipt of a representation. Nor did it acknowledge receipt of that 'representation' without averting to the fact that the representation had been received out of time. It expressly pointed out that time had expired. Equally it did not address (or reject) any request in relation to an extension of time, for no request was made. Mr Helbig's solicitors wrote in the following terms:
'I understand that this representation is made outside the advertised time and would ask that it be considered. The reason for the lateness is Mr Helbig did not receive the notice until after the closing date for representations.'
5On the most favourable construction of this passage it is not and cannot be regarded as a request for an extension of time. All it does is acknowledge that the 'representation' is outside the time provided for in the Act, asks that it 'be considered' (whatever that might mean) and offers an explanation as to why it is late.
6The 'representation' was not presented to the Council for consideration. It was presented 'as a matter of curtesy [sic]'.
7That the Council granted the application notwithstanding the representation is simply not to the point. Neither is the giving of notice of its decision.
8The Tribunal is affirmatively satisfied that on any view of it there has been no extension of time within which to make a representation, for the representation was made out of time and as such Mr Helbig has no standing to bring the appeal that he purports to bring. It follows that his appeal must be dismissed."
As mentioned, the applicant challenges the Tribunal's decision by way of both an appeal pursuant to the Resource Management and Planning Appeal Tribunal Act, s25(1), and an originating application seeking a review of the decision pursuant to the Judicial Review Act. It must be emphasised that these proceedings are not an appeal by way of rehearing. An appeal pursuant to the Resource Management and Planning Appeal Tribunal Act, s25(1), must be "on a question of law". A review of a decision pursuant to the Judicial Review Act is, for present purposes, confined to the grounds detailed in that Act, s17(2). The grounds upon which the originating application and the appeal have been pursued are the same, save that in the originating application the following statement precedes the grounds:
"Pursuant to Section 17 of the Judicial Review Act 2000 the grounds of review of the decision are that:"
No serious effort has been made to relate the grounds to the jurisdiction vested in this Court by the legislation referred to. The grounds are:
"A The Tribunal erred in law:
1 By holding that:
(a) No request for an extension of time was made;
(b)On the most favourable construction of the letter from the Applicant's solicitors of 29 August 2007 ('the representation') it is not and cannot be regarded as a request for an extension of time;
(c)The representation was not presented to Council for its consideration but as a matter of courtesy, when there was no evidence before the Tribunal to that effect because there was no evidence of the delegation or other power of the Council officer to determine the status of the representation or the application for extension of time;
(d)The Council giving notice of its decision to the Applicant is not a relevant factor in determining the status of the representation;
(e)On any view there was no extension of time to make the representation;
(f) The representation was made out of time;
(g)The Applicant has no standing to bring the appeal to the Tribunal; and
(h) The appeal must be dismissed.
2 By failing to hold that:
(a)Properly construed the representation constituted a requested [sic] a request for an extension of time to make a representation pursuant to section 57 of the Land Use Planning and Approvals Act;
(b)Consideration of the representation by the Council included an extension of the time for making of a representation pursuant to section 57 of the Land Use Planning and Approvals Act;
(c)The letter from the Council officer dated 5 September 2007 did not determine that the representation was out of time or would be considered by Council as a matter of courtesy only because the Council officer had no delegated or other power to determine:
ithe status of the representation;
iithe basis on which Council would consider the representation; and
iiiany application for extension of time for making the representation;
(d)The Council giving the Applicant notice of its decision pursuant to Section 57(7) of the Land Use Planning and Approvals Act was relevant to the determination of the nature of the consideration given by Council to the representation and the outcome of the application for a request for extension of time contained in the representation;
(e)The Council had granted an extension of time;
(f)The representation was not out of time;
(g)The Applicant had standing to bring the appeal;
(h)The appeal ought not be dismissed.
3By failing to determine an essential or in the alternative relevant fact namely the notice of the Council's decision given to the Applicant or his solicitors and the terms thereof in that:
(i)There was no agreed fact as to those matters:
(ii)The submissions of the Applicant and the Council referred to letters giving such notice with different dates, authors, recipients and description of the contents:
BThe decision of the Tribunal was invalid because it was procured by misrepresentation.
PARTICULARS
The misrepresentation was contained in a letter of 21 November 2007 from Jackson Tremayne & Fay on behalf of the King Island Council to the Resource Management and Planning Appeal Tribunal
At page 3 of that letter it was represented to the Tribunal that a letter dated 24 September 2007 had been sent to Walsh Day Williams Pty, the solicitors for Mr Dieter Helbig, and that letter was not a notice pursuant to Section 57(7) of the Act but contained the express note referred to in the letter of 21 November 2007. No letter of 24 September 2007 or letter containing the terms represented as being contained in that letter was in fact sent to Mr Helbig's solicitors."
As to the material that was before the Tribunal when it made its decision, it was ultimately agreed before this Court that:
·whilst the council's solicitors had sent the applicant's solicitors a letter dated 26 September 2007 enclosing a copy of a notice that the development had been approved which had been issued to the council ("the permit"), the Tribunal was not provided with a copy of that letter;
·the above letter is the letter that was intended to be referred to in par6 of the council's solicitors' letter to the Tribunal dated 21 November 2007, however it was there erroneously referred to as being dated 24 September 2007;
·the assertion in the following portion of the council's solicitors' letter to the Tribunal dated 21 November 2007 was incorrect, its inclusion in the letter being an innocent mistake. The portion is:
"Further, the letter provided to the applicant's solicitor dated 24 September 2007, enclosing a copy of the discretionary planning permit is not a notice pursuant to subsection 57(7) of the Act, but expressly noted that:
'Please find enclosed a copy of the discretionary planning permit issued on the 21st September in regard to the planning application DA050708. This notice is provided as a curtesy (sic) and does not constitute recognition of your client's right of appeal under section 61 (5) of the Land Use Planning and Approvals Act 1993.'"
I will refer to the above assertion as "the misrepresentation". It was a misrepresentation as no letter was sent to the applicant or his solicitors by the council or its solicitors noting that a copy of the permit was provided to the applicant as a matter of courtesy and that its provision did not constitute recognition of his right to appeal under s61(5).
Ground B
As ground B relates to the misrepresentation, I will turn to it now. This ground contends that the decision of the Tribunal was invalid because it was procured by a misrepresentation, the particulars of the misrepresentation being:
"The misrepresentation was contained in a letter of 21 November 2007 from Jackson Tremayne & Fay on behalf of the King Island Council to the Resource Management and Planning Appeal Tribunal.
At page 3 of that letter it was represented to the Tribunal that a letter dated 24 September 2007 had been sent to Walsh Day Williams Pty, the solicitors for Mr Dieter Helbig, and that letter was not a notice pursuant to Section 57(7) of the Act but contained the express note referred to in the letter of 21 November 2007. No letter of 24 September 2007 or letter containing the terms represented as being contained in that letter was in fact sent to Mr Helbig's solicitors."
The misrepresentation is admitted by the council. However, the factual premise that underpins this ground is the proposition that the Tribunal's decision was procured by the misrepresentation. In par3 of its decision, the Tribunal summarised the applicant's argument as follows:
"● A council has power to extend the time limit by Section 57(5) of the Land Use Act for representations.
·There is no need to receive a specific request so to do; by its conduct a council may in fact extend time for the making of a representation;
·That in fact occurred in this case because:
oThe Council acknowledged the receipt of the 'representation' made by Mr Helbig;
oBy so acknowledging the receipt of that 'representation' without averting to the fact that the representation had been received out of time or rejecting the request in the representation for an extension of time for it to be considered;
oBy presenting the representation 'to [the] Council for consideration before the Council made its decision as to the application for a permit';
oBy considering the 'representation' before making its decision as to the application for a permit;
oThe Council granting the application that was the subject of the representation:
oGiving the Applicant notices of its decision pursuant to Section 57(7) of the Land Use Act."
In the last sentence, immediately above, the Tribunal notes that a matter relied upon by the applicant is that he was given notice of the council's decision pursuant to the Act, s57(7). That subsection is as follows:
"57 (7) If a planning authority, on an application for a permit to which this section applies, grants or refuses to grant the permit, it must, within 7 days of granting or refusing to grant the permit, serve notice of its decision –
(a) on the applicant; and
(b) if representations have been made in relation to the application in accordance with this section, on all persons who made representations."
If the Tribunal had relied on the misrepresentation contained in the council's solicitors' letter when dealing with this aspect of the applicant's argument it would have observed that it was not correct to say that notice of the council's decision had been given to the applicant pursuant to s57(7), as the information before the Tribunal (the misrepresentation) was to the contrary effect. The Tribunal did not do so. In par7 of its decision, the Tribunal, in effect, accepted the accuracy of the applicant's assertion that he had been given notice of the decision, and said that it was simply not to the point that notice had been given to him. It is self-evident that the misrepresentation played no part in the Tribunal's decision, the basis for which is set out in pars4, 5 and 6 of its decision. I add that had the Tribunal's decision been procured by the misrepresentation, this would not necessarily have warranted a grant of relief. The Court's power to make consequential orders pursuant to the Judicial Review Act, s27, is discretionary. See also Supreme Court Rules 2000, rr709(1) and 693(6). There is no point in ordering the reconsideration of a matter because of incorrect information that was placed before the decision-maker, if a reconsideration based on the correct information would only result in the same outcome, Von Stalheim v Anti-Discrimination Tribunal and Attorney-General for the State of Tasmania [2007] TASSC 9, par12. The misrepresentation in question was that a letter dated 24 September 2007 had been sent to the applicant's solicitors containing a copy of the permit together with advice that the permit was provided as a matter of courtesy and that its provision did not constitute recognition of the applicant's right to appeal under s61(5). No such letter had been sent. Had the correct information been put before the Tribunal, it would have shown that the applicant's contention that the council served him with notice of its decision pursuant to s57(7) was wrong. Neither party went to the trouble of providing the Tribunal with the correct information on how the applicant came to receive a copy of the permit. It is correct to say that had the applicant made a representation pursuant to s57(7), the council would have been obliged to provide him with a copy of the permit within seven days of its grant, that is, by 25 September 2007. The council did not do this as it was under no such obligation. The applicant received a copy of the permit by way of its inclusion in a letter from the council's solicitors to his solicitors dated 26 September 2007. The Tribunal did not have a copy of this letter. It is plain from the copy of that letter that has been provided to the Court that the copy of the permit was not enclosed because the applicant had made a representation to the council. The letter relates to an undertaking that had been given by the council to the applicant that it would not proceed with work on the public amenities building until it had obtained approval for that development. The undertaking had been given in order to negate the need for steps that had been initiated by the applicant under the Act, s64, to have the council restrained from working on the building without a permit. The letter of 26 September 2007 referred to the undertaking, enclosed the permit in order to show that approval for the development had been obtained, and gave the applicant notice that work would proceed on 8 October 2007.
As the Tribunal's decision was not based on the misrepresentation and, moreover, as the applicant would not benefit from a decision based on the correct evidence as to how he came to obtain a copy of the permit, this ground does not provide any basis for providing relief to the applicant.
Grounds A 1(a), (b) and 2(a)
That the Tribunal erred in law:
·by holding that no request for an extension of time was made;
·by holding that on the most favourable construction, the letter from the applicant's solicitors of 24 August 2007 ("the representation") is not, and cannot be, regarded as a request for an extension of time; and
·by failing to hold that properly construed, the representation constituted a request for an extension of time to make a representation pursuant to the Act, s57(5).
These grounds challenge the Tribunal's finding that no request for an extension was made in the applicant's solicitors' letter of 29 August 2007. The relevant portion of that letter is:
"I understand that this representation is made outside the advertised time and would ask that it be considered. The reason for the lateness is Mr Helbig did not receive the notice until after the closing date for representations."
Manifestly this was not a request for an extension of the time for the making of a representation pursuant to s57(5). It was no more than a request that the representation be considered by the council, notwithstanding that it was made outside the advertised time. Whilst an alert and helpful recipient of the letter, who was familiar with the terms of s57(5), might have encouraged the council to deal with it as if it was a request for an extension of time, on the evidence before the Tribunal, that is not how it was treated by the recipient. That evidence was that the council responded to the applicant's solicitors in a letter dated 5 September 2007, as to which the Tribunal was told —
·in par4, first appearing, of the council's solicitors' letter to the Tribunal dated 8 November 2007:
"4The Council replied to Walsh Day Williams by letter dated 5 September 2007 in the following terms, formal and irrelevant parts omitted:
'Your correspondence of the 29th instant, providing comment on the proposed development, has been received and noted. I wish to advise you that though the correspondence cannot be deemed a representation for the purposes of Section 57(5) of the Land Use Planning & Approvals Act 1993, it shall be presented to Council for consideration as a matter of curtesy' [sic]."
·in par2, first appearing, of the council's solicitors' letter to the Tribunal dated 21 November 2007:
"2In contrast to what is alleged, Council did advert to the fact that the purported representation had been received out of time. As noted in our previous submissions, Council replied to Walsh Day Williams by letter dated 5 September 2007 in the following terms, formal and irrelevant parts omitted:
'Your correspondence of the 29th instant, providing comment on the proposed development has been received and noted. I wish to advise you that though the correspondence cannot be deemed a representation for the purposes of Section 57(5) of the Land Use Planning & Approvals Act 1993, it shall be presented to Council for consideration as a matter of curtesy (sic)'. (my emphasis)."
The Tribunal did not err as alleged.
Ground A, 2(b)
That the Tribunal erred in law by failing to hold that consideration of the representation by the council included an extension of the time for making of a representation pursuant to the Act¸ s57.
In the course of the first substantive hearing of these proceedings before this Court, the primary contention advanced on behalf of the applicant was along the lines that the council must be taken to have extended the period within which a representation could be made by the applicant pursuant to s57(5), as the council could not lawfully have considered the applicant's solicitors' letter of 29 August 2007 unless it was a representation pursuant to that provision. This contention is based on the premise that the only information that the council can lawfully consider when assessing an application for a permit pursuant to s57, is a representation pursuant to s57(5). There is no legislative or other reason for so limiting the information that the council may consider, and such a limitation would be unreasonable and unworkable. The contention is rejected. The council was perfectly entitled to consider the applicant's solicitors' letter of 29 August 2007 when determining whether to grant the permit, even though the letter was not a representation for the purposes of s57(5). The Tribunal did not err as alleged.
Grounds A 1(c) and 2(c)
That the Tribunal erred in law:
·by holding that the representation was not presented to the council for its consideration, but as a matter of courtesy, when there was no evidence before the Tribunal to that effect because there was no evidence of the allegation or other power of the delegation, or other power of the council officer to determine the status of the representation or the application for extension of time; and
·by failing to hold that the letter from the council officer dated 5 September 2007 did not determine that the representation was out of time or would be considered by council as a matter of courtesy, only because the council officer had no delegated or other power to determine:
i the status of the representation;
ii the basis on which council would consider the representation; and
iii any application for extension of time for making the representation.
These grounds are directed to par6 of the Tribunal's decision in which it found that the representation was not presented to the council for consideration, but was presented as a matter of courtesy. That finding is entirely consistent with the evidence before the Tribunal of the council's letter dated 5 September 2007 which is quoted towards the end of par13 above. Notwithstanding that in those quotations it is said that by letter of 5 September 2007 "Council replied" to the applicant's solicitors' letter, it is reasonable to assume that the reply was provided by an employee of the council. The precise standing of that employee is of no consequence. The importance of the employee's letter is that it makes it clear that at the time that it was written, the applicant's solicitors' letter was not deemed to be a representation for the purposes of s57(5), and would be presented to council for consideration as a matter of courtesy. When the applicant's solicitors' letter was ultimately placed before the council for its consideration on 18 September 2007, it was, of course, open to the council to have dealt with the letter in a manner other than that which was foreshadowed in the letter of 5 September 2007. However, the evidence before the Tribunal was that the council did not do so. The clear effect of the council's solicitors' letters of 8 November 2007 and 21 November 2007 to the Tribunal is that the representation was presented to council as a matter of courtesy and that the council at no time extended the time allowed for the making of a representation under s57(5).
The Tribunal did not err as alleged by these grounds.
Grounds A 1(d) and 2(d)
That the Tribunal erred in law:
·by holding that the council giving notice of its decision to the applicant is not a relevant factor in determining the status of the representation;
·by failing to hold that the council giving the applicant notice of the decision pursuant to the Act, s57(7), was relevant to the determination of the nature of the consideration given by council to the representation and the outcome of the application for a request for an extension of time contained in the representation.
As explained when dealing with ground B, neither party went to the trouble of providing the Tribunal with the correct information on how the applicant came to receive notice of the council's decision. The Tribunal was not provided with a copy of the council's solicitors' letter of 26 September 2007 which enclosed a copy of the permit. The information before the Tribunal in relation to notice to the applicant of the granting of the permit was:
·Paragraph 3 in the applicant's solicitors' letter to the Tribunal dated 16 November 2007 which stated:
"On the 26th September 2007, Jackson Tremayne & Fay, acting on behalf of the Council, forwarded a notice of the Council's decision to grant a Discretionary Permit pursuant to section 57(3) of the Land Use Planning and Approvals Act 1993 (the Act) to the Applicant's solicitors."
·The following submission made at a latter point in that letter:
"It is submitted that the Council allowed a further period for the Applicant to make his representation within the meaning of s57(5) of the Act. That is because at all times the Council treated the applicant as if he had made a representation pursuant to s57(5) by:
1 Acknowledging the receipt of the representation;
2 So acknowledging receipt of the representation without averting to the fact that the representation had been received out of time or rejecting the request in the representation for an extension of time for it to be considered;
3 Presenting the representation to Council for consideration before Council made its decision as to the application for a permit;
4 Considering the representation before making its decision as to the application for a permit;
5 The Council granted the application not withstanding the representation;
6 Giving the Applicant notice of its decision pursuant to Section 57(7) of the Act."
·Paragraph 6 of the council's solicitors' letter to the Tribunal dated 21 November 2007 which stated:
"6Council gave notice of the decision to the applicant by letter to Walsh Day Williams dated 24 September 2007. Such letter was not a notice pursuant to subsection 57(7) of the Act."
The date contained in this paragraph is agreed to be incorrect, it should have been 26 September 2007, but the Tribunal was not made aware of this.
·The following paragraph at a latter point in the letter which wrongly asserted that:
"Further, the letter provided to the applicant's solicitor dated 24 September 2007, enclosing a copy of the discretionary planning permit is not a notice pursuant to subsection 57(7) of the Act, but expressly noted that:
'Please find enclosed a copy of the discretionary planning permit issued on the 21st September in regard to the planning application DA050708. This notice is provided as a curtesy (sic) and does not constitute recognition of your client's right of appeal under section 61 (5) of the Land Use Planning and Approvals Act 1993.'"
As explained when dealing with ground B, the Tribunal did not use this information in any way that was adverse to the applicant, and had the correct information been put before the Tribunal, it would have shown that the applicant's contention that the council provided him with notice of its decision pursuant to s57(7) was wrong. As the applicant has not suffered from the manner in which the Tribunal dealt with the evidence before it as to the applicant's receipt of notice of the council's decision, and as he would not benefit from a decision based on the correct evidence on this issue, these grounds do not provide any basis for providing relief to the applicant.
Grounds A 1(e) and 2(e)
That the Tribunal erred in law:
·by holding that on any view there was no extension of time to make the representation;
·by failing to hold that the council had granted an extension of time.
As explained when dealing with grounds A 1(a), (b) and (c) and 2(a) and (c), the evidence before the Tribunal was that the council did not extend the time for the applicant to make a representation. The Tribunal did not err as alleged.
Grounds A 1(f) and 2(f)
That the Tribunal erred in law:
·by holding that the representation was made out of time;
·by failing to hold that the representation was not out of time.
The Tribunal could not have done otherwise than find that the representation was made out of time. Not only did the evidence establish that it was made out of time, but the first paragraph of the applicant's solicitors' letter to the council dated 29 August 2007, contains an express acknowledgment that the representation was out of time. The Tribunal did not err as alleged.
Grounds A 1(g) and 2(g)
That the Tribunal erred in law:
·by holding that the applicant had no standing to bring the appeal to the Tribunal;
·by failing to hold that the applicant had standing to bring the appeal.
Pursuant to the Act, s61(5), the only basis upon which the applicant could have standing to appeal was if he had made a representation pursuant to the Act, s57(5). He had not. The Tribunal did not err as alleged.
Grounds A 1(h) and 2(h)
That the Tribunal erred in law:
·by holding that the appeal must be dismissed;
·by failing to hold that the appeal ought not be dismissed.
As the appellant had no standing to bring an appeal against the decision of the council to the Tribunal, the only course open to the Tribunal was to dismiss it. The Tribunal did not err as alleged.
Ground A 3
That the Tribunal erred in law by failing to determine an essential or, in the alternative, relevant, fact, namely the notice of the council's decision given to the applicant or his solicitors and the terms thereof in that:
(i) there were no agreed facts as to these matters; and
(ii)the submissions of the applicant and the council referred to letters giving notice with different dates, authors, recipients and descriptions of the contents.
As already explained, the evidence before the Tribunal on how the applicant came to receive notice of the council's decision was contradictory and incorrect. A determination as to the means by which the applicant became aware of the council's decision was not essential to the Tribunal's decision, although it might have been of some relevance to its decision. On the facts before it, the Tribunal took the view that the giving of notice of the council's decision to the applicant was not to the point. This was a view that the Tribunal was perfectly entitled to take, bearing in mind the clear evidence before the Tribunal that the applicant's representation to the council was out of time and that the time for the making of his representation had not been extended. In any event, as explained when dealing with ground B, had the correct information on the applicant's receipt of notice of the council's decision been before the Tribunal, it would have shown that the applicant was not provided with notice of the decision pursuant to s57(7).
The appeal and the originating application are dismissed.
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