Hobart City Council v Picone - [2016] TASFC 11

[2016] TASFC 11

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Hobart City Council v Picone [2016] TASFC 11

PARTIES:  HOBART CITY COUNCIL
  v
  PICONE, Ian John
  PICONE, Lynette

FILE NO: 2980/2016
JUDGMENT

APPEALED FROM: Picone v Hobart City Council [2016] TASSC 57

DELIVERED ON:  12 December 2016
DELIVERED AT:  Hobart
HEARING DATE:  7 November 2016
JUDGMENT OF:  Tennent and Estcourt JJ

CATCHWORDS:

Environment and Planning – Environmental Planning – Development Control – Applications – Advertising and inspection requirements – Power of planning authority to extend time for inspection and representations – Interpretation of Land Use Planning and Approvals Act 1993, s 57.

Land Use Planning and Approvals Act 1993 (Tas), s 57.
Aust Dig Environment and Planning [94]

REPRESENTATION:

Counsel:
             Appellant:  S McElwaine SC
             Respondent:  D Deller
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             Respondent:  Dobson Mitchell & Allport

Judgment Number: [2016] TASFC 11
Number of paragraphs: 44

Serial No 11/2016
File No 2980/2016

HOBART CITY COUNCIL v IAN JOHN PICONE and LYNETTE PICONE

REASONS FOR JUDGMENT FULL COURT

TENNENT J
ESTCOURT J
12 December 2016

Order of the Court

Appeal dismissed.

Serial No 11/2016
File No 2980/2016

HOBART CITY COUNCIL v IAN JOHN PICONE and LYNETTE PICONE

REASONS FOR JUDGMENT FULL COURT

TENNENT J
12 December 2016

The appellant, the Hobart City Council, received an application from a land owner in Birngana Avenue, Sandy Bay, concerning modifications and extensions to a residence. The planning permit needed was a discretionary one. The Land Use Planning and Approvals Act 1993 (the LUPA Act), s 57(3), required the appellant to give notice of the application, which it did on 4 August 2016.
The notice relevantly provided:
"The applications are available for inspection between 8:15am and 5:15pm, Monday to Friday, from the publication of this notice until Thursday 18 August at the Hobart Council Centre, 16 Elizabeth Street Hobart ... Representations relating to (this) application may be made in writing addressed to the General Manager ... and must be received no later than 12 midnight on Thursday 18 August 2016."
The respondents to this appeal, Mr and Mrs Picone, are the neighbours of the land owner who made the application to the appellant, and they wished to make a representation to the appellant in relation to the application for the permit. Through inadvertence on the part of the practitioner representing the respondents, their representation was not received by the appellant until 19 August 2016, that is the day after the end of the period limited for the lodgement of representations. By a letter to the appellant on 19 August, the respondents, pursuant to the LUPA Act, s 57(5), sought an extension of time for the lodgement of their representation, in effect to allow the representation they had lodged to be considered.
Section 57(5) relevantly provided:
"(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hobart City Council v Picone and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] TASFC 11
Decision Date: 12 December 2016

CaseChat Overview and Summary

The Supreme Court of Tasmania, Court of Appeal, heard an appeal concerning the interpretation of section 57 of the *Land Use Planning and Approvals Act 1993* (Tas). The appeal was brought by the Hobart City Council against a decision of a single judge. The dispute centred on the Council's power to extend the time for the inspection of development applications and for the making of representations by the public.

The primary legal issue before the Court of Appeal was whether the Hobart City Council had the statutory power to grant an extension of time for the inspection of a development application and for the lodging of public representations beyond the period prescribed by section 57 of the *Land Use Planning and Approvals Act 1993*. This involved an examination of the language and intent of the relevant legislative provisions.

The Court of Appeal, in dismissing the appeal, reasoned that section 57 of the Act prescribed a mandatory period for the inspection of development applications and the making of representations. It held that the Council did not possess a general discretion to extend this period. The Court emphasised that the statutory language indicated a fixed timeframe, and any departure from this would require express legislative authority, which was absent in this instance. The appeal was therefore dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.