Hobart City Council v Ellis
[2005] TASSC 71
•3 August 2005
[2005] TASSC 71
CITATION: Hobart City Council v Ellis [2005] TASSC 71
PARTIES: HOBART CITY COUNCIL
v
ELLIS, Timothy James
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 1/2005
DELIVERED ON: 3 August 2005
DELIVERED AT: Hobart
HEARING DATE: 18 April 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Environment and Planning – Environmental planning – Planning offences – Generally – Whether planning authority failed to take all reasonable steps to ensure compliance with Scheme – Failure of council to prosecute or prevent use that was contrary to Scheme.
Land Use Planning and Approvals Act 1993 (Tas), ss63A(1), 64(3).
Aust Dig Environmental and Planning [265]
REPRESENTATION:
Counsel:
Applicant: L Sealy
Respondent: F C Neasey
Solicitors:
Applicant: Simmons Wolfhagen
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 71
Number of paragraphs: 35
Serial No 71/2005
File No LCA 1/2005
HOBART CITY COUNCIL v TIMOTHY JAMES ELLIS
REASONS FOR JUDGMENT CRAWFORD J
3 August 2005
By a complaint, the respondent, the Director of Public Prosecutions, charged the applicant with an offence against the Land Use Planning and Approvals Act 1993 ("the Act"), s63A(1), in the following terms:
"That Hobart City Council ('the Council') at Hobart in Tasmania between on or about 16th July, 2001 and on or about 26th November, 2003, being at all material times a planning authority, did fail, and continues to so fail, to take all reasonable steps to ensure that the City of Hobart Planning Scheme 1982 ('the scheme'), in particular clause 5.22.1 thereof (as amended), that had effect in respect of an area within its municipal district, ie; the precinct of the Calvary Hospital at 49 Augusta Road, Lenah Valley ('the hospital') and residential properties adjacent thereto, was complied with by the owners of the hospital ('the hospital owners'), particulars of non-compliance with the scheme by the hospital owners and particulars of failure by the Council to take all reasonable steps to ensure the scheme was complied with by the hospital owners, being set out below, contrary to Section 63A(1) of the Land Use Planning and Approvals Act 1993."
Particulars of the hospital owners' non-compliance with the Scheme, and of the failure by the applicant to take all reasonable steps to ensure that the hospital owners complied with the Scheme, were, in essence, that the hospital was illegally using land as a car park, because it had not obtained a permit from the applicant to use the land for that purpose, and the applicant failed to take reasonable steps to prevent that illegal use by prosecuting the hospital for an offence against the Act, s63(2)(a), and/or by applying to the Resource Management and Planning Appeal Tribunal ("the Tribunal") for an order against the hospital under the Act, s64(3)(c), (d) or (e) with respect to the illegal use and/or by failing to respond to numerous requests by F L and S D Davies, the occupants of the house and land immediately adjacent to the illegal car park, to restrain the illegal use, by advising or requesting the hospital to refrain from such use.
On 22 December 2004, the complaint was found proved by a magistrate for reasons that were published in writing. The applicant moved this Court to review that finding. At the time of the hearing of the motion, the applicant had not been sentenced by the magistrate for the offence.
The Act, s63, prohibits the use of land and its development in the following terms:
"63 ¾ (1) …
(2) A person must not use land in a way, or undertake development or do any other act, that ¾
(a) is contrary to a State Policy, a planning scheme or special planning order; or
(b) impedes or obstructs the execution of any such scheme or order; or
(c) constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme or order or a determination of the Appeal Tribunal.
(3) A person who contravenes subsection (2) is guilty of an offence punishable, on summary conviction, in accordance with subsection (4)."
Subsection (4) prescribes the penalties for such an offence. Section 63A creates the offence with which the applicant was charged:
"(1) A planning authority that does not take all reasonable steps to ensure that a planning scheme or special planning order that has effect in respect of an area within its municipal district is complied with is guilty of an offence punishable on summary conviction.
(2) A planning authority convicted of an offence against subsection (1) is liable to a fine not exceeding 500 penalty units, and a planning authority who is so convicted in respect of a continuing contravention of this section ¾
(a)is liable, in addition to the penalty otherwise applicable to that offence, to a fine for each day during which the contravention continued of not more than 500 penalty units; and
(b)if the contravention continues after the planning authority is convicted, is guilty of a further offence and is liable, in addition to the penalty otherwise applicable to that further offence, to a fine for each day during which the contravention continued after that conviction of not more than 50 penalty units."
The Davies' house lies at the north-western corner of the land used by the hospital. The area lies within that controlled by the City of Hobart Planning Scheme 1982 ("the Scheme"). Clause 5.22.1 of the Scheme provides that the hospital precinct shall continue to function primarily as a general hospital with associated health services and that further development of the hospital and its associated uses shall only occur in accordance with the Calvary Hospital Master Plan No MP2 ("MP2") as finally approved. MP2 provides for a "Building Strategy" which relevantly contains the following:
"— The plan allows for phased development.
·The initial phase is the modification and blending into the streetscape of the existing theatre block … New car parking will significantly reduce the current short fall. Considerable site works are also involved after the part demolition of the old laundry and convent including the removal of the crib wall to Raluana Lane and boundary landscaping to neighbouring residences and Raluana Lane.
·Further major work is dependent on the further demolition of the old laundry and boiler house and the original convent buildings. …
·Car parking to satisfy the required standards will be completed in conjunction with each phase.
The exact timing of these phases will be dependent on the rate of change in demand, developments in health care and the extent of funds available to the hospital.
The projected time horizon for the total works is between five and ten years."
From about 1987 onwards, the original state of the car park was that it extended south from the boundary with the land owned by Mr and Mrs Davies and west towards Raluana Lane, at approximately the 75.60 level. That is shown on MP2 as the "75.60 existing car park". It was used as a car park for one row of vehicles, with approximately eight marked spaces for angle parking along the western edge of the car parking area. The car park was sealed. East of it was the laundry and boiler house. At all relevant times the use of that car park was lawful.
MP2 indicates that eventually there will be a new and larger car park at level 72.60 in lieu of the existing car park at level 75.60. The original car park at 75.60 is shown by an intermittent line, and will necessarily be demolished to allow excavation for the new car park at level 72.60. In addition, the existing boiler house and laundry will require demolition to allow construction of the new car park at level 72.60.
The hospital applied for and obtained permits authorising the partial demolition of the laundry and boiler house and the carrying out of associated drainage and landscaping works. The hospital has not yet applied for a permit to construct the larger car park at the lower level 72.60. In accordance with the permit it obtained, the hospital partially demolished the laundry and boiler house and made good the area left vacant. That work was done at some time prior to January 2001. The hospital then had available to it additional vacant land which it has used ever since for the parking of eight to ten vehicles, in addition to the pre-existing eight spaces. The use of the additional vacant land for that purpose has been unlawful for no permit was obtained to allow it. Although MP2 proposed an additional car parking area, it was to be provided in a different way at level 72.60 and not at level 75.60 and, in any event, the provisions of MP2 do not amount to permission to do what is proposed in it, because it is merely part of a planning scheme under which permits must be obtained for new developments and uses.
The unlawful increase in the car parking became a matter of concern to Mr and Mrs Davies. Their rear boundary was adjacent to the area in question. They complained that their residential amenity had been adversely affected because of the increased noise of traffic in the car park and the increased number of persons who used the car park and who could see into their property. They wrote to the hospital, asking it to refrain from using the additional area as a car park, and to the applicant, requesting that action be taken to prevent that use and to have the boundary properly landscaped.
Mr and Mrs Davies' application to the Tribunal
Mr and Mrs Davies applied to the Tribunal under the Act, s64, for orders restraining the hospital from using the unlawful car parking area and requiring the demolition of the works which had been undertaken for the purpose of developing the car park. Subsection (1) authorised a planning authority, or a person with a proper interest in the subject matter, to make such an application. By virtue of s64(2A), the applicant was taken to be a party to the Davies' application. It was heard on 7 October 2002, and on 14 November 2002, the Tribunal ordered that within 30 days the hospital cause a paling fence 1.8 metres high to be erected between the car park and the property of Mr and Mrs Davies. The Tribunal declined to prohibit the unlawful use for reasons it explained in its written decision. Its powers to make orders were governed by s64(3) as follows:
"(3) If ¾
(a) after hearing ¾
(i)the applicant and the respondent; and
(ii)any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings ¾
the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed to comply with a provision of this Part; or
(b)the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard –
the Appeal Tribunal may, by order –
(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and
(d)preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and
(e)require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal."
It was contended for Mr and Mrs Davies to the Tribunal that the principal problem was that the car park was at the wrong level at the 75.60 level, rather than the 72.60 level proposed for the future by MP2, and that as a result, it was easy for people to look into their property. The absence of adequate landscape plantings, or of any other sufficient method of occluding the view into their property, meant that they suffered from the use of the increased car park in a way which, had it been constructed at the level proposed by MP2, would not have occurred. It was contended for the applicant to the Tribunal that it had to be understood that the work would proceed in stages, and that meant that it might be some time before the car park would correspond to the master plan's provisions. The situation should be regarded as an interim phase, the applicant asserted. The evidence for the hospital was that it was not possible to construct the lower level car park until it had been excavated, which involved moving a sewer, but the sewer could not be moved until a new boiler house was constructed and an old boiler house was decommissioned. Its evidence was that all of that could take over a year from the date of commencement of the work.
The Tribunal observed that the master plan, which was dated 1992, was not specific but its projected time horizon for works was between five and ten years. As the Tribunal commented, "the period envisaged is drawing to a close". It continued: "In consequence of the time involved until the lower level car park at 72.60 can be constructed, and the loose timeframe envisaged in the Master Plan, it is reasonable to conclude that, apart from any order made by the Tribunal, the existing situation will continue for at least a year." Notwithstanding the hospital's contention that the master plan necessarily envisaged that interim construction stages would occur, the Tribunal considered that the extension of the existing car park at level 75.60 was not something which could reasonably be regarded as an interim stage. The master plan had only envisaged continuance of the existing spaces as an interim situation.
Having concluded that the use of the extension of the car park contravened the master plan, the Tribunal then considered what orders should be made. Its power to make orders under s64 were the same whether the application for the orders was made by Mr and Mrs Davies or by the applicant. Under s64(3)(c), (d) and (e), it had power, by order, to require the hospital to refrain, either temporarily or permanently, from using the extension of the car park, and to require the hospital to make good the contravention or the default in a manner, and within a period, specified by the Tribunal. The following findings, determinations and order were made by the Tribunal:
"27 The present situation may be temporary, but will last for at least a year, which is a significant period, and perhaps much longer. The interference with privacy and noise suffered by the applicants requires that appropriate steps be taken to minimise the interference with their amenity.
28 At the same time a requirement that the car park not be used would in the Tribunal's view be out of proportion to the extent of the harm suffered by reason of its continued use. It was not contested and the Tribunal finds that the likely result of closing the approximately 16 to 18 car parks involved, or even only the new ones, would be displacing vehicles seeking parking into the rest of the site and the surrounding streets, which could reasonably be expected to constitute an exacerbation of that problem for the neighbourhood of the hospital. The demolition or closure of the extended car park is also, the Tribunal considers, out of proportion to the harm suffered by reason of its existence.
29 The appropriate course is, the Tribunal considers, to provide that a fence sufficient to preclude overviewing of the applicants' property from the car park, be erected along the common boundary between the car park and the applicants' property. Such a fence would be of solid material such as palings, and at least 1.8 metres high. The Tribunal considers that the existence of such a fence, while not totally protecting the applicants' amenity, does so to a reasonable extent in all of the circumstances.
30 The order of the Tribunal is that the respondent within 30 days cause a paling fence 1.8 metres high to be erected along the common boundary between the car park and the applicants' property."
An immaterial amendment was subsequently made to the order which imposed a change in the location of the fence. The hospital erected a fence in obedience to the order as amended.
The proceedings before the magistrate
The complaint, which was made on 26 November 2003, charged the applicant with breaching s63A(1) between on or about 16 July 2001 (the date upon which the section commenced to operate) and on or about 26 November 2003 and alleged that the breach was continuing. It was heard on 17, 18, 19, 22 and 23 November 2004. The complaint was found proved with the publication of written reasons on 22 December 2004. The learned magistrate found that at no time had the applicant prosecuted the hospital for an offence under s63(2)(a) with respect to the car park and that the applicant had never applied to the Tribunal for an order against the hospital under s64(3)(c), (d) or (e) with respect to it. Reference was made to the Tribunal's decision to which I have referred. See F L & S D Davies v Calvary Hospital Inc [2002] TASRMPAT 217. His Worship found that the facts had not changed considerably since that decision on 14 November 2002, except that in compliance with the Tribunal's order, the hospital had caused a paling fence 1.8 metres high to be erected along the common boundary between the car park and the Davies' property. It was found, as it was by the Tribunal, that the use of the extended car park breached the Scheme because such use should only have occurred in accordance with MP2 and any development was required to ensure that the amenity of the adjacent residential areas was maintained.
It was observed by the learned magistrate that the cause of complaint by Mr and Mrs Davies to the Tribunal was the cause of the complaint before the magistrate and that the immediate remedy and order made by the Tribunal had been complied with by the building of the fence. However, the unlawful use of the extended car park still continued.
The learned magistrate rejected the proposition that the applicant had failed to take reasonable steps to ensure compliance with the Scheme because it had failed to prosecute the hospital under s63 for the offence of using land in a way that was contrary to the Scheme. In the course of so determining, the learned magistrate noted that there was no absolute obligation to prosecute every contravention of a planning scheme or, for that matter, every commission of an offence. A prosecution first had to be in the public interest. It had been open to the applicant to take action under s64 rather than under s63. A prosecution under s63 could only have resulted in a fine, whereas an application in the nature of civil enforcement proceedings under s64 opened up the possibility of orders that could have been made under s64(3) prohibiting a continuation of the use and the making good of the contravention. No criticism of the learned magistrate's dealing with that aspect of the matter was raised on the hearing of the motion to review.
The learned magistrate also rejected an attack on the applicant for having embarked on mediation between the hospital and Mr and Mrs Davies over several years, without recourse to applications or appeals. No criticism of that rejection was raised on the hearing of the motion.
The learned magistrate was also not satisfied that failures by the applicant to respond to numerous requests by Mr and Mrs Davies since 16 July 2001, including requests in writing, to restrain or prevent the hospital from using the illegal car park by advising or requesting it to stop the use, amounted to a breach of s63A(1).
The finding that the complaint was proved was based on a conclusion that the applicant had failed to take all reasonable steps to ensure that the planning Scheme was complied with by the hospital by failing to apply to the Tribunal for orders against the hospital under s64(3)(c), (d) and (e). Mr and Mrs Davies had made such an application and I have referred to the result of it. The applicant had been a party to that application by reason of s64(2A). However the learned magistrate determined that at some point in time the applicant should have made its own application against the hospital under the section. His Worship's reasons were expressed in the following way:
"However I am satisfied beyond reasonable doubt that there has been a breach of section 63A in that there has been a failure to apply to the Resource Management and Planning Appeal Tribunal for an order under s64(3)(c) and/or (d) and/or (e) of the Land Use Planning and Approvals Act 1993 against the hospital owners with respect to the use of the illegal car park.
I note that at paragraph 21 in the Tribunal's decision FL & SD Davies –v- Calvary Hospital Inc [2002] TASRMPAT 217 it stated:
'In consequence of the time involved until the lower level car park at 72.60 can be constructed, and the loose timeframe envisaged in the Master Plan, it is reasonable to conclude that, apart from any order made by the Tribunal, the existing situation will continue for at least a year'.
Whilst I accept that up until November 2002 the Defendant may have been justified in coming to its own assessment as to whether or not Calvary was contravening the scheme [sic]. After that it ought to have been so satisfied. The Resource Management and Planning Appeal Tribunal had come to such a conclusion which it would appear has not been overturned. I accept that initially any encouragement by [sic] Calvary to complete the landscaping and fence works that were ordered by the Tribunal in November 2002 may have been appropriate. However, I cannot accept that notwithstanding that the desirability of maximising on-site car parking and therefore minimising on-street car parking that proceedings should not have been taken under section 64. This could at least have been an application to seek from the Tribunal orders against Calvary which involved them making a decision as to when it would complete the two new car parks and to seek an order that in the meantime the extended use of the car park be prohibited. At least a time line could have been established. Even if it is suggested that there may be some permission for the extended car park to be used on a temporary basis, the word 'temporary' has a finite connotation. At some time in the future if there is no change the situation becomes permanent. I am clearly of the view that there at least should be some time frame or time line established for the construction of the two new car parks. I cannot and do not accept that it was open for the hospital to put off indefinitely any development and at the same time attempt to use the illegal car park.
I do note comments in paragraph 21 of the November, 2002 decision of the Tribunal that the Tribunal referred to:
'… apart from any order made by the Tribunal, the existing situation will continue for at least a year'.
I have not overlooked the evidence of amenity and loss of it given by Mr Davies and the evidence given by Mr Curtis as to his observations of the use of the car park in recent times. I do not believe that their evidence is particularly contradictory. Mr Davies' evidence is as to its use over a significant period of time and Mr Curtis over a relatively short period of time leading up to this hearing.
I am satisfied that by failing to apply to the Resource Management and Planning Appeal Tribunal particularly since the handing down of the decision in November 2002 that required the hospital owners to refrain either temporarily or permanently from using the car park in its extended condition it had failed to comply with the provisions of section 63A(1). I note that there was nothing to prevent the Defendant from making such an application. It could have even been made after this complaint had been lodged. I do note that the Defendant did take action under section 64 for orders restraining the hospital owners from using a 6 space car park nearby to the car park the subject of this appeal. That application was successful."
It is not altogether clear as to the point of time by which, in the determination of the learned magistrate, the applicant was committing the offence. However, it would seem to have been a date after 14 November 2002. There are a number of grammatical mistakes or other errors of expression in the passage I have cited from the typed copy of the reasons made available to me. I was informed by counsel that the learned magistrate subsequently stated that the sentence "I am satisfied that by failing to apply to the Resource Management and Planning Appeal Tribunal particularly since the handing down of the decision in November 2002 that required the hospital owners to refrain either temporarily or permanently from using the car park in its extended condition it had failed to comply with the provisions of section 63A(1)" should be read as if "for orders" were inserted after "2002". I conclude that the use of "it" in that sentence was a reference to the applicant.
I agree with the submission of the applicant's counsel that the passage "particularly since the handing down of the decision in November 2002" does not sit comfortably with the earlier passage "I accept that initially any encouragement by [to?] Calvary to complete the landscaping and fence works that were ordered by the Tribunal in November 2002 may have been appropriate". In the earlier passage there is a suggestion that it was reasonable for the applicant to delay making a s64 application until a date later than November 2002, whereas the later passage suggests that it was unreasonable for the applicant to so delay once the Tribunal's orders had been made.
The grounds of appeal
In summary, the grounds of the appeal are as follows:
Grounds 1, 2 and 6 The learned magistrate erred in fact and law when he found that the failure of the applicant to apply to the Tribunal for orders under s64, particularly since the Tribunal's decision that was handed down on 14 November 2002, amounted to a breach of s63A(1) because it was a reasonable step that the applicant should have taken to ensure compliance with the Scheme by the hospital.
Grounds 3 and 4 The learned magistrate erred in fact and law when he found that the use of the car park in its extended condition, after the Tribunal's decision, amounted to a contravention of the Scheme. Instead, it should have been found that the effect of the Tribunal's decision was to make good, and bring to an end, any such contravention.
Ground 5The learned magistrate erred in fact and law by failing to find that at all material times the applicant honestly and reasonably believed that the effect of the Tribunal's decision was to make good, and bring to an end, any contravention of the Scheme.
Grounds 3 and 4
Counsel for the applicant submitted that the legal effect of the Tribunal's decision and orders made on 14 November 2002, upon the application of Mr and Mrs Davies, was to put at an end the hospital's pre-existing contravention of the Scheme by its use of the extension of the car park. It was pointed out that under s64(3)(c), the Tribunal had power to require the hospital to refrain from so using the land, but the Tribunal chose not to exercise that power. The only order made by it was the one requiring the erection of a paling fence. It was submitted that the power to make that order can only be found in par(e), that is, the power "to make good the contravention". Therefore, it was submitted further, the order requiring the erection of a paling fence made good the contravention and there was no longer a contravention.
There is no merit in the two grounds. By the terms of the section, the relevant contravention had to be a contravention of a provision of Part 4 of the Act. The hospital's contravention was of s63(2), which prohibited it from using land in a way that was contrary to the Scheme. The hospital's use of the land was contrary to the Scheme because no relevant permission for that use was obtained. The Tribunal's order that the hospital erect a paling fence could not, as a matter of fact or law, result in the hospital's continued use of the subject land as a car park no longer being contrary to the Scheme. The contravening use of the land plainly continued. The Tribunal had a discretion under s64(3) ("the Appeal Tribunal may, by order") to make an order, compliance with which would put an end to the contravention of Part 4, permanently or temporarily, or which would make good the contravention, but the Tribunal's order, whatever it might have been, could not itself change a contravention into compliance, subject to the Tribunal's exercise of its powers under subs(10) which may have authorised it to permit the use as on an application for a planning permit.
It may be that the Tribunal had no power to order the hospital to erect the fence. Its relevant power was to make an order that required the hospital to make good the contravention and the erection of the fence could not have achieved that end. It may have ameliorated the effects of the contravention that were harmful to Mr and Mrs Davies' use and enjoyment of their property, but it is open to question whether the Tribunal had power to make an order that only had that effect. However, it is unnecessary for me to decide that question. It was not fully argued by counsel, although the respondent's counsel briefly submitted that ameliorating some of the effects of a contravention could amount to making it good. It is clear that the Tribunal did not consider that the contravention would no longer continue once the fence had been erected. It deliberately chose to allow the contravention to continue for the time being, and certainly for at least a year.
Ground 5
There is no merit in this ground, simply because there was no evidence before the Tribunal that the applicant believed that the effect of the Tribunal's decision was to make good, and bring to an end, any contravention of the Scheme or Part 4. The only evidence relied upon in support of the ground was of the applicant's Director of Development and Environmental Services, Mr Curtis, who merely said that he "could not see the reason or the logic of taking further section 64 action when it had already been taken and the Tribunal had drawn a conclusion".
Grounds 1, 2 and 6
The question raised by these grounds may be postulated as whether it was reasonably open to the learned magistrate to conclude that by failing to make its own application to the Tribunal under s64, particularly since 14 November 2002, the applicant had failed to take all reasonable steps available to it to ensure that the Scheme was complied with by the hospital.
The motion to review the determination of the learned magistrate may not succeed merely because I would have come to a contrary conclusion, and it does not have the nature of an appeal by way of rehearing. On a review of a conclusion reached by a magistrate that was based on evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to that conclusion. Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117; Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351. Contrary to the submission of counsel for the respondent, Kelly v O'Sullivan (1995) 4 Tas R 446 did not replace that test with the unsafe and unsatisfactory verdict test, although it might be said to have added the latter test as the basis for a ground for review.
Plainly, the applicant could not reasonably have been expected to make an application under s64 for a significant period of time after November 2002. By its decision on the hearing of Mr and Mrs Davies' application under the section, the Tribunal made it clear that at that point in time "the demolition or closure of the extended car park … is out of proportion to the harm suffered by reason of its existence", and that all that was reasonably needed was the erection of a fence between the two properties "to minimise the interference with [Mr and Mrs Davies'] amenity". The Tribunal was particularly influenced by the fact that if the unlawful use was prohibited, the effect would "be displacing vehicles seeking parking into the rest of the site and the surrounding streets, which could reasonably be expected to constitute an exacerbation of that problem for the neighbourhood of the hospital". The Tribunal recognised that "the present situation may be temporary, but will last for at least a year, which is a significant period, and perhaps much longer". That recognition was supported by evidence that MP2 allowed for phased development and anticipated that "the exact timing of the phases would be dependent on the rate of change in demand, developments in health care and the extent of funds available to the hospital"; that it was not possible to construct the lower level car park, that was anticipated by MP2, until a new boiler house had been constructed, an old boiler house decommissioned, a sewer moved and excavation works then carried out; and that all of that would take over a year from the date of commencement of the work. The learned magistrate appeared to accept that "temporary" permission of the unlawful use might be reasonable, but he emphasised that "the word 'temporary' has a finite connotation" and that "some time in the future if there is no change the situation becomes permanent". I have no quarrel with that. His Worship's view was that it was not open to the hospital to put off indefinitely any development and at the same time attempt to use the illegal car park, and that there was a need for some time frame or time line to be established for the construction of the new car park as anticipated by MP2. Those comments are also understandable.
However, with respect, I think that the learned magistrate fell into error by failing to adequately address the fact that in November 2002 the Tribunal, when hearing the s64 application of Mr and Mrs Davies with respect to the land, to which all interested persons were parties, had refused to make an order that prohibited the hospital from continuing to use the extended car park. The Tribunal made it clear that it was prepared to permit the situation to continue for over 12 months at the very least, that is to a date after November 2003. Although the Tribunal is not a court of record, the previous decisions of which are binding, it would have been obvious to the applicant, when considering whether a further application under s64 should be instituted, this time by the applicant, that the Tribunal would once again decline to restrain the contravening use until a significant time had elapsed, at least beyond November 2003. Notwithstanding that, the learned magistrate concluded that by failing to apply under s84 "particularly since the handing down of the decision in November 2002", the applicant had failed to take reasonable steps to ensure compliance with the Scheme. By expressing himself in that way and by failing to address the indication the Tribunal had given that it would permit the use in question for some time to come, the learned magistrate erred.
At what point in time would it have been, or will it be, a reasonable step for the applicant to take to make an application under s64 to ensure compliance with the Scheme? I have concluded that such a point in time has not yet arrived and I have done so particularly because of new evidence that was put before the Court by the applicant. Under the Justices Act 1959, s110(2), the Court has power to consider further evidence if it thinks fit. The power gives rise to the exercise of a discretion and some compelling reason, perhaps even exceptional circumstances, for exercising it should be shown. See Cleaver v Powell [1979] Tas R 134 at 136. I have decided to admit the new evidence in this case for three reasons. First, it is arguably fresh evidence, in the sense that it only came into existence following the finding of the learned magistrate that the complaint had been proved. (However, I do not overlook the fact that the applicant could have taken steps so as to bring about the availability of similar evidence prior to the hearing before the magistrate.) Second, I have concluded, without referring to the new evidence, that the learned magistrate erred. Third, it is compelling evidence which goes directly to the determination of the very issue I am considering and which is not open to challenge so far as truth is concerned.
The new evidence is contained in an affidavit of David Morris sworn on 12 April 2005. It establishes the following facts. On 3 March 2005 the applicant applied to the Tribunal under s64(2) for a summons calling upon the hospital to appear before the Tribunal to show cause why there should not be made orders (inter alia) refraining the hospital from using the extension of the car park. Under subs(2), the Tribunal was obliged to issue the summons if satisfied that there were sufficient grounds. The Tribunal was not so satisfied. On 17 March 2005, under the hand of its chairman, the Tribunal advised the applicant's solicitors of that, basing its decision upon a consideration, in particular, of pars27 and 28 of its decision of 14 November 2002, which paragraphs appear earlier in these reasons. The Tribunal considered, following its decision on that occasion, "that the present situation is one which was envisaged when those orders were made, and that the simple efluxion of time has not caused what was then a temporary situation to become permanent".
The recent refusal of the Tribunal to entertain an application under s64 by the applicant satisfies me that it has not been established beyond reasonable doubt that the applicant has failed to take reasonable steps to ensure compliance with the Scheme by making application to the Tribunal under s64.
Disposition of the motion
For the above reasons the motion to review should succeed. It will be ordered that the finding of the learned magistrate on 22 December 2004 that the complaint was proved is quashed and the complaint will be dismissed.