Hobart City Council v Picone
[2016] TASFC 11
•12 December 2016
[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 under subsection (3) or such further period not exceeding 14 days as the planning authority may allow."
On 25 August 2016, the appellant advised the respondents' solicitors that it would consider the request for an extension, but would seek the views of the applicant for the permit. On 7 September 2016, the appellant wrote again and refused to grant the extension, advising it did not consider it had the power to do so.
The respondents successfully sought a judicial review of that decision. Brett J determined on 7 October 2016 that the appellant did have the power to grant the extension. The matter was referred back to the appellant. By its delegate, the appellant considered the request to extend time, and granted it on 7 October 2016. The representation by the respondents was then taken into account when the application for a permit was considered. A planning permit was subsequently granted, with conditions, on 10 October 2016, and written notice of the grant of the permit was given by letter dated 17 October 2016.
On 11 October 2016, the appellant appealed against the decision of Brett J. The appeal was heard on 7 November 2016, and it is that appeal which is the subject of these reasons. The sole ground of appeal is in the following terms:
"… the learned judge erred in law in his construction of section 57(5) of the Land Use Planning and Approvals Act 1993, as conferring a discretion upon the appellant to grant an extension of time upon the facts as found by him."
A reading of counsel's submissions prior to the commencement of the hearing suggested that the position of the appellant on this appeal was that, on a proper construction of s 57(5), the appellant could only allow a "further period" by reference to the section at or before the notice required by s 57(3) was given. The period could not be extended after the initial notice period of 14 days had expired. The position of the respondents was that any extension could be given before or after the 14-day period had expired. When argument commenced, counsel for the appellant accepted that it was open to interpret s 57(5) as providing a planning authority with the power to extend time during the initial 14-day period. The difficulty with the decision of Brett J, counsel for the appellant submitted, was that he found that the power to extend could be exercised after the initial 14-day period had expired, and only in favour of an individual applicant.
Decision of Brett J
His Honour summarised the position of the appellant in relation to the operation of s 57(5) at [28] of his reasons as follows:
"28 I turn now to deal with the interpretation of s 57(5). Mr McElwaine submits that that section should be interpreted on the basis that the power to extend the period for representations can only be exercised prospectively, that is to say, prior to notification. His argument is that any other interpretation and, in particular, a reading of the provision that permits the authority to grant an extension of time after the period for notifications has closed, in other words, in respect of late notifications as in this case, is contrary to the intention manifested in the Act, and would lead to an unfair and unintended result. That result is that potential representors reading the notification could be caught out by the notification because they think that the closure of the relevant period as notified is the end of the opportunity to make a representation at all. Others who make application could be in a better position because they make the application and are granted an extension."
His Honour then dealt with the appellant's arguments at [29]–[42] of his reasons. He said:
"29 I am unable to agree with Mr McElwaine's argument. My reasons for this are as follows. Firstly, there is nothing about the wording of the provision that limits the power of the planning authority to extend time, particularly in the way contended for by Mr McElwaine. The wording of the provision, in particular the use of the word 'allow' suggests that it is intended to be a wide and general power exercised within the limits expressly contained within the provision, that is, that council can extend the time but for no longer than a further period of 14 days.
30 The use of the word 'allow' suggests a discretion to be exercised in a variety of circumstances. Again, it would have been a simple matter for the legislature, had it intended to limit that power in the way contended for, to say so expressly. One might also have expected that it may have used different wording than the word 'allow'. For example, it could have said that the planning authority may 'determine' a longer period than 14 days, prior to notification being given.
31 Instead, the provision uses words consistent with a general power to extend time either before or after closure of the first 14-day period. My reading of the provision is consistent with the assumption that seems to have been made by Evans J in a decision of this Court in Helbig v Resource Management and Planning Appeal Tribunal [2008] TASSC 28. In that case, his Honour assumed that s 57(5) conferred a power to extend time for lodging late representations.
32 The case is not authority for that proposition because his Honour's assumption was a premise for the purpose of further reasoning rather than a conclusion of that reasoning. However, it does demonstrate the point that I have made about the ordinary reading of the provision, and that that ordinary reading strongly suggests that it is a power to be exercised as contended for by the applicants.
33 Further, I do not agree with Mr McElwaine's submission that an interpretation to permit an extension of time for late representations necessarily causes unfairness or disruption to the scheme created by s 57 for the assessment of discretionary applications.
34 There is no doubt that the requirement of notice contained in s 57(3) is crucial to the proper assessment of applications. This much is clear from the decision of the High Court in Scurr v The Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242. That case was not concerned with the need to notify or include the time limit in the lodging of representations in a notice. However, it was concerned generally with the notification of development applications and established the need in those applications to ensure that sufficient information about the application is available to the reader. That is something which seems to me to be picked up by s 57(4) of the LUPA Act. However, in Dorset Council v The Resource Management and Planning Appeal Tribunal [2014] TASSC 34, 23 Tas R 85, Blow CJ took the view that notification of the time for closure of the representation period is a crucial part of the information to be provided in a notification, in the sense discussed in Scurr.
35 I do not disagree with either decision. However, it seems to me that the relevant prescription of the notice that is required by reg 9(3) of the LUPA regulations can be complied with in a way that is consistent with the interpretation of s 57(5), stated by me above. That regulation provides:
'(3) A notice under subregulation (1) is to
(a) ....
(b) advise that representations in relation to the application may be made in accordance with section 57(5) of the Act ...'.
36 It is important to note that the right to make representations is only provided for in s 57(5). Accordingly, the requirement of reg 9(3) is that readers be informed of their right to make a representation, and to do so in accordance with the requirements of s 57(5). Of course, that must include, as a matter of logic, the need to inform the reader of the applicable time limits which arise under that provision. In this representation, and I suspect as a matter of general course, advertisers interpret the relevant provision, arrive at a date, and this specific date is inserted in the notification.
37 That practice is not without historic difficulties. I refer to Dorset Council v The Resource Management and Planning Appeal Tribunal case as an example. However, Mr McElwaine's point about the question of unfairness and treating representors equally is predicated on the closure date being fixed by council. However, if s 57(5) is read as providing the planning authority with the right to extend the period subsequent to the representation period to allow for late representations, I do not see that this is inconsistent with or creates any significant difficulty in relation to the requirements of reg 9(3).
38 That regulation requires information to be given as to the right of the reader to make a representation in accordance with s 57(5). Section 57(5) does not set out a specific date. It provides for a period of 14 days, or such further time as the planning authority may allow, not exceeding a further period of 14 days. That is the information that ought be provided in order to comply with the provisions of reg 9(3). Provision of that information, either expressly or by reference to the section, would then place all potential readers in exactly the same position in terms of the information they receive in respect of the time limited for making representations and their rights in relation to that question. In particular, a reader would be informed that a representation must be made within the period of 14 days, or within such further period as may be allowed by the planning authority, up to a further 14 days.
39 I acknowledge that this interpretation permits a planning authority to exercise discretion according to the individual circumstances of the case, and that this may be perceived as potentially treating some representors unequally from others. However, detailed scrutiny does not support this conclusion. All exercises of discretion carry the inherent potential for unequal treatment. On the other hand, the power to extend time caters for circumstances in which, for good reason, a person with a real and legitimate interest in the development application, the type of person contemplated as a representor by the process under s 57, has not been able to lodge an application within the initial 14 day period. The provision, read in this way, provides for the amelioration of that strict time limit, but still limits the overall period to 28 days, and leaves the planning authority with the discretion to refuse the extension if circumstances make that appropriate. It seems to me that this power to ameliorate the effect of the strict time limit is more consistent with the objective of public participation in the planning process incorporated by s 5 and the objectives of the LUPA Act, than the interpretation contended for on the part of the respondent.
40 I can understand also that it might be argued that a less certain finalisation date in respect of representations disrupts the overall assessment process, or at least has the potential to do so. However, when regard is had to the provisions of s 57(6), it seems to me that the process prescribed by that provision takes into account and contemplates that there may be uncertainty in relation to the representation period. That provision prescribes the following process. Under s 57(6)(a), the decision on the permit is not to be made before a certain time, which is the period set out in s 57(5). That period will be the period as extended if that extension is allowed.
41 Section 57(6)(b), rather than linking the time limit for the finalisation of the whole determination process to the end of the representation period, in fact links it back to the original lodgement date. Accordingly, the finalisation date of the application will remain the same, irrespective of variations in the representation period. If such a period was always fixed before notification, there would be no need to have this differential means of determining the earliest and latest date for finalisation of the application. It would have been a simple matter to have the finalisation date calculated according to a time period that runs from the end of the representation period.
42 These provisions mean that there can be certainty as to the finalisation date, and that date is not impacted by late changes in the representation period. It follows that there is no reason to read down the provision in the way contended for by Mr McElwaine. The result is that the council did have power to extend the time in respect of this representation, and, in fact, if it had decided to do so, to accept the representation. The content of the letter of 7 September 2016 evidences a refusal by the planning authority to extend the time period, not in an exercise of discretion, but in the erroneous belief that, as a matter of law, it did not have power to do so."
Submissions and discussion on this appeal
Both counsel supplied detailed written submissions about this matter, and counsel for the appellant provided a further document on the day of the hearing, entitled "Written outline of oral submissions for the appellant". There are numerous authorities cited in those submissions both as to statutory interpretation generally, and as to interpretation of planning legislation more specifically. There appeared to be no real dispute between the parties as to what these various authorities dealt with. For that reason, my reasons focus primarily on the legislation under consideration, particularly the LUPA Act, s 57.
Counsel for the appellant submitted that the effect of his Honour's decision was to create a system which potentially provided for different periods for inspection and the making of representations for different people. He said in relation to s 57(5) that:
"… the statute requires a determined period, not a differential one. This ensures certainty and equality of treatment. The effect of his Honour's decision is to provide for a system of differential treatment, which, by definition, must lead to disadvantage, discrimination and uncertainty."
The LUPA Act, s 57(3), required the appellant to give notice of the application for the permit. Section 57(4) then provided that that notice had to name a place at, and a time during, which the application and associated plans would be available for inspection. The time during which the relevant documents were to be available for inspection, by reference to s 57(4), was "at all reasonable hours during the period for which representations may be made". Section 57(5) then provided for the period during which representations could be made. That period was "14 days commencing on the date on which notice of the application is given … or such further period not exceeding 14 days as the planning authority may allow".
In this case, the date of the notice was 4 August 2016 and the period for the making of representations was stated to expire at midnight on 18 August 2016. That 14-day period referred to in the notice was clearly calculated by reference to s 57(4) and (5).
Counsel for the appellant submitted that what s 57(5) did was provide a mechanism by which a planning authority could determine, in advance of the giving of the notice required by s 57(3), the time which was to be allowed for inspection and representations. That period as a starting point would be 14 days, but could be extended up to a maximum of 28 days. Section 57(5) did not provide for individual members of the public to apply to extend a period already fixed by notice as the period for inspection of documents and representations.
Counsel for the appellant raised a number of arguments to support why he said the only proper construction of s 57(5) was that for which he contended. One of the arguments related to the concurrent periods provided for in relation to inspection of documents and the making of representations. Counsel submitted:
"Section 57(4) requires that a copy of the application and of all plans and other documents submitted with it, 'be open to inspection by the public at all reasonable hours during the period for which representations may be made.' The same period regulates the exercise of the choice to make a representation under section 57(5). If as Brett J reasoned, a planning authority may extend the latter, depending on the circumstances of individual cases, then two matters are left unresolved: how is it said that the inspection period is likewise extended and how is it said that members of the public are to be informed of the extended inspection and representation period? The absence of a power to do either strongly points to a construction which only permits the extension power to be exercised prospectively."
With respect, in mounting this argument, counsel has done exactly what he has criticised Brett J for in another context, and that is to focus on one word in a provision, as opposed to that word in the context of the whole section in which it appears. In my view, in doing so, he has sought to create an argument where none is open. In this case, counsel has focused on the word "period" where it is highlighted in bold above. Section 57(4) provides that inspection is available, "during the period for which representations may be made" and not just during "the period". The word "period" is qualified by the words which follow it. The length of the period during which representations may be made is fixed by s 57(5) at 14 days, or such further period as the planning authority may allow. It must follow that, if the period during which representations may be made is extended from the 14 days to something up to 28 days, so too is the period for inspection.
As to members of the public being informed of any extended period, with respect, if any member of the public were to read s 57(4), a plain reading of the words would suggest to that member of the public that the period for representations was 14 days initially but it could be extended. Lawyers may wish to engage in arguments such as that before this Court about precisely what that section means. However, the chances of a lay person considering the argument now raised is, in my view, nil. If a member of the public wished to make a representation out of time, a simple enquiry of the planning authority would reveal whether the period during which representations might be made had been extended or not. If it had, there is nothing which would prevent that member of the public either making a representation as of right, if the relevant period as extended had not expired, or making an application for an extension, provided less than 28 days had passed since the notice of the application was given. An interpretation of s 57(5) in the manner contended for by the respondents would not in any way discriminate against members of the public other than those who might have successfully obtained an extension. As the respondents' counsel submitted, there is nothing to prevent any member of the public from applying to extend the period for inspection and representations, just as the respondents did in this case. Whether or not such an application was successful would be within the discretion of the appellant.
Counsel for the appellant also mounted an argument by reference to the LUPA Act, s 51(2)(c). For the same reasons as counsel's argument about the word "period" in s 57(5) failed, this argument should also fail. Section 51(2)(c) provides that, in determining an application for a permit, a planning authority:
"must take into consideration the matters set out in representations relating to the application that were made during the period referred to in section 57(5);".
Counsel submitted that this required a consideration of representations which "were" made during "the statutory period". He submitted that the use of the past tense was ill-suited to the determination of a period which was flexible and turned upon an application by an individual for an extension of time. With respect, s 51(2)(c) does not use the words "the statutory period", but refers to the period referred to in s 57(5). That period is 14 days, or such further period not exceeding 14 days as the planning authority may allow. The word "were" simply refers to any representations made "during the period referred to in s 57(5)", whatever that period may be. I see no difficulty whatsoever created by the use of the word "were".
Counsel also mounted an argument by reference to what he described as the "statutory decision-making period of 42 days". Section 57(6)(b) provides that a planning authority must grant or refuse a permit not later than the expiration of 42 days from the day on which the planning authority received the application, or such further period as may be agreed before the 42 days has expired. Counsel posed the question as to what would happen if a "genuine" application to extend time was granted beyond the 42-day period. With respect, that argument has no merit. The ability of a planning authority to grant an extension of time, by reference to s 57(5), is clearly discretionary. In the present case, when the respondents' request for an extension was made, the appellant contacted the applicant for a permit. It is inconceivable that a planning authority would exercise a discretion to extend time for representations such as to place itself in a position of being unable to comply with the 42-day framework, without first obtaining the agreement of the applicant for a permit to extend that 42-day period. In the absence of such agreement, it is impossible to see how or why the planning authority would exercise a discretion to extend by reference to s 57(5), however "genuine" an applicant for an extension might be. It must also be kept in mind that any extension can only be such as to allow a 28-day period for representations from the date of any notice. That would substantially limit the likelihood of the theoretical situation referred to by counsel for the appellant occurring.
Counsel for the appellant asserted his Honour erred in focusing on the word "allow" in s 57(5) when his Honour made reference to the use of that word at [29]–[30] of his reasons. Counsel submitted that the correct approach required his Honour to consider the meaning of the provision in its entirety in the context of the relevant statutory scheme. However, counsel did not, for example, provide any explanation as to what he asserted was the meaning of the word "allow" in the context of the whole provision and the scheme which was different to that which his Honour found.
His Honour has concluded the word had its plain ordinary meaning. It permitted the appellant to extend time. It did not in any way limit when that permission might be given.
There were other references in the submissions of counsel for the appellant to asserted errors by Brett J. I have not dealt with each of them because a number of the suggested errors are similar in context to those I have already dealt with, and are predicated on the same arguments.
I have formed the view that his Honour made no error in his construction of s 57(5) having regard to the facts he found, and I would dismiss the appeal.
File No 2980/2016
HOBART CITY COUNCIL v IAN JOHN PICONE and LYNETTE PICONE
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
12 December 2016
The background to the appeal
This is an appeal from the decision of Brett J delivered orally on 7 October 2016 in Picone v Hobart City Council [2016] TASSC 57.
The following background facts and statutory provisions can be conveniently taken from his Honour's reasons for decision at [2]-[11]:
"2 This case concerns a proposed development relating to a property within an area in respect of which the respondent is the relevant planning authority. The applicants are the owners of a property which is adjacent to or very close to the land on which the development is to take place. It is common ground that the development cannot proceed, having regard to the relevant planning scheme, unless the respondent grants a permit in the exercise of its discretion under that scheme.
3 The powers of the respondent and the process to be followed in relation to the determination of an application for a discretionary permit are prescribed by the Land Use Planning and Approvals Act 1993 ('the LUPA Act'), s 57. The provisions in that section of particular relevance to this case are as follows:
'(3) Unless the planning authority requires the applicant to give notice, the authority must give notice, as prescribed, of an application for a permit.
(4) A notice referred to in subsection (3) is, in addition to any other matters required to be contained in it, to name a place where a copy of the application, and of all plans and other documents submitted with the application, will be open to inspection by the public at all reasonable hours during the period for which representations may be made.
(4A) …
(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.
(5AA) If the time period specified in subsection (5) includes any days on which the office of the planning authority is closed during normal business hours in that part of the State where the land subject to the application for a permit is situated, that period is to be extended by the number of those days.
(5A) …
(5B) …
(6) Unless the planning authority has refused to grant a permit under subsection (2), it must grant or refuse to grant the permit —
(a) not earlier than the expiration of the period of 14 days, or such further period as may be allowed under subsection (5), beginning on the date on which notice of the application for a permit is given under subsection (3); and
(b) not later than —
(i)in a case where the Heritage Council has not, under section 39(3) of the Historic Cultural Heritage Act 1995, required extra time to consider the application, on the expiration of the period of 42 days from the day on which the planning authority received the application or such further period as is agreed, in writing, by the planning authority and the applicant before the expiration of that 42-day period; or
(ii)in a case where the Heritage Council has, under section 39(3) of the Historic Cultural Heritage Act 1995, required extra time to consider the application, on the expiration of the period of 56 days from the day on which the planning authority received the application or such further period as is agreed, in writing, by the planning authority and the applicant before the expiration of that 56-day period.'
4 Section 57(3) requires that there be notice given of the application. There are some exceptions to this requirement but they are not relevant to this case: see s 57(2). In relation to the prescription of relevant notice, s 57(4) sets out some mandatory requirements. The provisions of the Land Use Planning and Approvals Regulations 2014 ('the LUPA regulations'), reg 9, also prescribe the content of the relevant notice.
5 It is common ground that the respondent gave notice of the application, including by advertisement, in a daily newspaper, in accordance with reg 9 on 4 August 2016. For the purposes of this case, the important part of the notice was the statement that relevant representations '…must be received by no later than 12 midnight on Thursday, the 18th of August 2016.' Representations are provided for in the LUPA Act, s 57(5).
6 The applicants instructed their solicitors to draft and lodge a representation setting out their concerns with respect to the relevant development. These instructions were given prior to the nominated closing time and date on 18 August 2016. However, for one reason or another, the representation was not actually forwarded to the respondent until the afternoon of 19 August 2016, one day later, and, according to the respondent, one day late.
7 At the same time as they lodged the representation with the respondent, the applicants' solicitors provided the respondent with a letter requesting an extension of time within which to lodge the representation, obviously in recognition of the fact that the representation was being lodged one day after the expiration of the nominated timeframe. In requesting the extension of time, the solicitors purported to rely on the provisions of s 57(5), and, in particular, the following words contained in that section, '… or such further period not exceeding 14 days as the planning authority may allow'.
8 On 25 August 2016, the applicants' solicitors received a letter from the respondent stating that the respondent would consider the application for an extension of time, and that it intended to advise the applicant for the permit, and other representors of the application, and provide them with a right to be heard. On 7 September 2016, the respondent wrote again to the applicants' solicitors in these terms:
'I refer to your application to extend time pursuant to s57 (5) of the Land Use Planning Approvals Act 1993 contained within your correspondence of 19 August 2016.
I have considered your application, provided the applicant and other representors the opportunity to make submissions in response to the application and I have sought legal advice.
Having regard to the factual circumstances of this matter and based upon a consideration of that advice, I am of the view that there is no power to grant the application to extend time as requested in your correspondence of 19 August 2016.'
9 The letter went on to indicate that the consequence of the lack of power to grant an extension of time was that the applicants had made a representation within the statutory period and, accordingly, they would not be notified of the final decision with respect to the development application. There has been subsequent correspondence between the parties but this correspondence does no more than restate the respective positions set out in the abovementioned correspondence.
10 I have been told, and it seems to be confirmed in the correspondence, that it is the intention of the respondent to consider and determine the application for the planning permit at a meeting on 10 October 2016; this coming Monday. In a letter dated 3 October 2016, the respondent confirmed its position that:
'… [the applicants'] representation was received outside the statutory period. It will not be considered in the assessment of the application.'
11 The applicants have now made application to this Court for orders pursuant to the Judicial Review Act 2000 ('the JR Act'). I intend to return to the details of the application, but, in summary, the applicants are seeking relief pursuant to that Act with respect to the decisions taken by the respondent not to accept the representation and, hence, to not regard them as representors for the purposes of s 57(5) of the LUPA Act."
The learned primary judge, for the reasons he gave, granted limited relief to the respondents in this appeal on the basis that the appellant had failed to consider the question of an extension of time for lodgement of the respondents' representation because the appellant erroneously took the view that it did not have power to extend time under s 57(5) of the Land Use Planning and Approvals Act 1993 (the Act).
His Honour made an order referring the respondents' request for an extension of time under s 57(5) of the Act to lodge a representation in respect of the subject development application, as contained in the letter from the respondents' solicitors to the appellant dated 19 August 2016, for further consideration in accordance with law.
His Honour also made an order in accordance with his power under s 27 of the Judicial Review Act 2000 directing the appellant to give consideration to the appellant's request for an extension of time before determining the development application.
The appeal
The appellant has appealed on the single ground that the learned primary judge erred in his construction of s 57(5) of the Act as conferring a discretion on the appellant to grant an extension of time on the facts as found by his Honour. No specific error in his Honour's reasoning is identified in the notice of appeal.
The primary judge's reasons
Relevant for present purposes, the learned primary judge summarised the contentions of the present respondents and the present appellant in the following terms respectively at [12]-[13] as follows:
"12 The applicants' position can be summarised as follows.
(a)Firstly, that on a proper interpretation of s 57(5AA), the time period of 14 days set out in s 57(5) must be extended to incorporate each Saturday and Sunday during that period. This is, so the applicants' argument goes, because Saturdays and Sundays are days when the planning authority was closed during normal business hours. Normal business hours, according to the argument, are 8.15am to 5.15pm. Such an interpretation, if accepted, would extend the period well beyond 19 August and would mean that the representation is within time.
(b)The second argument advanced by the applicants is that if the first argument is not correct, then the respondent erred in law by refusing to consider an application for an extension of time under s 57(5), and erred in law and denied the applicants natural justice, by refusing the application …
13 The respondent's position can be summarised as follows:
(a)That the term 'normal business hours', as it is used in s 57(5AA), does not include Saturday or Sunday and there is no basis for an extension of the period under that provision.
(b)Secondly, that the power of a planning authority to extend the period of 14 days under s 57(5) is a power which must be exercised prospectively and, in particular, before the date on which notice of the application is given … ."
The learned primary judge concluded, in the respondents' favour, that the content of the appellant's letter of 7 September 2016 to the respondents evidenced a refusal by it to extend the time period as requested by the respondents, not in an exercise of discretion, but in the erroneous belief that, as a matter of law, the appellant did not have power to do so. His Honour's reasons for reaching that conclusion are set out at [15]-[42] as follows:
"15 I will deal firstly with the point arising under s 57(5AA). The applicants' argument in respect of this aspect of the matter proceeds as follows. Firstly, the words 'Normal business hours in that part of the State in which the land is situate' is a reference to normal business hours in that locality generally and not the normal business hours of the planning authority. Secondly, those business hours should be determined without reference to any specific day of the week, that they are hours applicable to any day, and, hence, if a planning authority is closed on any day during those particular hours, then the provision is triggered, and the period is extended by the duration of the closure.
16 The first point I would make about this argument is that there is very little evidence to establish either the business hours of the respondent at any particular time or the normal business hours in the locality generally. No attempt was made by the applicant to draw my attention to any such evidence contained in the affidavit. I have searched unsuccessfully for such evidence. It would seem clear enough that insofar as the business hours of the respondent are concerned, I can infer that they are those set out in the advertisement: 8.15am to 5.15pm, Monday to Friday. There is no other evidence, however, that informs the question as to whether there are any and, if so, what 'normal business hours' applicable generally in the part of the State to which the land the subject of the application for the permit, is situate.
17 It is well established that the starting point in respect of the interpretation of a statutory provision is to interpret that provision according to the ordinary meaning of its words. However, if more than one interpretation is possible, then the interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not do so (see the Acts Interpretation Act 1931, s 8A). Section 8B of the Acts Interpretation Act provides for circumstances in which extrinsic material can be used for the purposes of interpretation.
18 It is arguable that there is an ambiguity contained in or, at least, two ways of reading s 57(5AA). The words 'in that part of the State' could be read as identifying the part of the State where the office of the planning authority is closed. Alternatively, as the applicants contend, it could be referable to qualify the meaning of 'normal business hours', that is, 'normal business hours in that part of the State'.
19 In my view, there is only one way of reading the provision that is reasonable and does not lead to absurd results. My conclusion is that the section should be read as follows. Firstly, that 'normal business hours' is a reference to the normal business hours of the relevant planning authority. Secondly, that 'business hours' is a reference, not just to hours of a day, but to the hours of a day and to the days of the week on which those offices would normally be open. I reject the applicants' argument that the provision should be read by interpreting normal business hours as normal business hours referable to the part of the State in which the land is situate.
20 In my view, the reference to 'the part of the State' is a reference to the place where the office is closed. In other words, the provision should be read as extending the period under s 57 (5) when the office of the relevant planning authority is closed in that part of the State where the land is situate, during a time when that office would normally be open, because that time is within its normal business hours.
21 Any other interpretation of the provision is unreasonable. To interpret the provision as contended by the applicants would require a determination in respect of a concept defined as the normal business hours generally that applies in a particular location. It seems to me that it would be unlikely that there would, in fact, be any such concept and that, in any event, it would be impractical if not impossible to determine with precision what hours are referable to such a concept.
22 Businesses come in many different shapes and forms, and normal business hours within a locality for one business may not be normal business hours for another. Further, such an interpretation has no real relevance to the purpose of the provision. The provision is clearly intended to facilitate inspection of documentation associated with the development application during the representation period. Its purpose is to ensure that, if the planning office is closed in unusual circumstances, or unusually during that time when it would normally be open having regard to its normal business hours, then the period is extended accordingly.
23 To simply extend the period because of closure during a period defined by normal business hours generally in a community would be of little use in achieving those objectives. All of this is entirely consistent with the second reading speech. In my view, it is permissible for me to have regard to this document. It is extrinsic evidence but, as I have already demonstrated, there are, according to the grammar of the provision, two possible ways of reading s 57(5AA). Accordingly, s 8B of the Acts Interpretation Act permits reference to the second reading speech.
24 In relation to this provision, the Minister, on 3 July 2007 when the provision was introduced, said:
'Section 57 is to be amended to exclude any day that a planning authority's office is closed on a normal business day from the public exhibition period for development applications. This will ensure that the public has adequate time and opportunity to view documents and lodge representations.'
25 By that comment, the second reading speech makes clear that the reference to normal business hours includes not just hours of the day but also days of the week. This is made clear by the Minister's statement that the intention of the introduction of the provision is to cater for times when the offices are closed on a normal business day. Once again, any other reading of the provision would be unreasonable.
26 The interpretation contended for by the applicants is also inconsistent with the norms of drafting. It would be a rare planning authority that would have its office open on a weekend. The reference to 14 days in s 57(5) is clearly intended, in my view, to incorporate a period which includes weekends, when it would be expected that the office would be closed. Had it been intended to extend that period because of the constant reality that such offices will be closed on weekends, one would have thought that the legislation would have dealt with it in a more final way, rather than by leaving it as an exceptional or discretionary matter under s 57(5AA). The section is clearly intended to pick up unusual closures, not the regular expected closure of a weekend.
27 There is no evidence presented by the applicants that the planning authority was closed during the relevant period during its normal business hours. As already noted, the only evidence of the business hours of the planning authority comes from the advertisement, and that clearly sets out those hours as Monday to Friday of each week. It follows that I reject the submission that the period under s 57(5) should be extended having regard to the provisions of s 57(5AA).
28 I turn now to deal with the interpretation of s 57(5). Mr McElwaine submits that that section should be interpreted on the basis that the power to extend the period for representations can only be exercised prospectively, that is to say, prior to notification. His argument is that any other interpretation and, in particular, a reading of the provision that permits the authority to grant an extension of time after the period for notifications has closed, in other words, in respect of late notifications as in this case, is contrary to the intention manifested in the Act, and would lead to an unfair and unintended result. That result is that potential representors reading the notification could be caught out by the notification because they think that the closure of the relevant period as notified is the end of the opportunity to make a representation at all. Others who make application could be in a better position because they make the application and are granted an extension.
29 I am unable to agree with Mr McElwaine's argument. My reasons for this are as follows. Firstly, there is nothing about the wording of the provision that limits the power of the planning authority to extend time, particularly in the way contended for by Mr McElwaine. The wording of the provision, in particular the use of the word 'allow' suggests that it is intended to be a wide and general power exercised within the limits expressly contained within the provision, that is, that council can extend the time but for no longer than a further period of 14 days.
30 The use of the word 'allow' suggests a discretion to be exercised in a variety of circumstances. Again, it would have been a simple matter for the legislature, had it intended to limit that power in the way contended for, to say so expressly. One might also have expected that it may have used different wording than the word 'allow'. For example, it could have said that the planning authority may 'determine' a longer period than 14 days, prior to notification being given.
31 Instead, the provision uses words consistent with a general power to extend time either before or after closure of the first 14-day period. My reading of the provision is consistent with the assumption that seems to have been made by Evans J in a decision of this Court in Helbig v Resource Management and Planning Appeal Tribunal [2008] TASSC 28. In that case, his Honour assumed that s 57(5) conferred a power to extend time for lodging late representations.
32 The case is not authority for that proposition because his Honour's assumption was a premise for the purpose of further reasoning rather than a conclusion of that reasoning. However, it does demonstrate the point that I have made about the ordinary reading of the provision, and that that ordinary reading strongly suggests that it is a power to be exercised as contended for by the applicants.
33 Further, I do not agree with Mr McElwaine's submission that an interpretation to permit an extension of time for late representations necessarily causes unfairness or disruption to the scheme created by s 57 for the assessment of discretionary applications.
34 There is no doubt that the requirement of notice contained in s 57(3) is crucial to the proper assessment of applications. This much is clear from the decision of the High Court in Scurr v The Brisbane City Council (1973) 133 CLR 242. That case was not concerned with the need to notify or include the time limit in the lodging of representations in a notice. However, it was concerned generally with the notification of development applications and established the need in those applications to ensure that sufficient information about the application is available to the reader. That is something which seems to me to be picked up by s 57(4) of the LUPA Act. However, in Dorset Council v The Resource Management and Planning Appeal Tribunal [2014] TASSC 34, 23 Tas R 85, Blow CJ took the view that notification of the time for closure of the representation period is a crucial part of the information to be provided in a notification, in the sense discussed in Scurr.
35 I do not disagree with either decision. However, it seems to me that the relevant prescription of the notice that is required by reg 9(3) of the LUPA regulations can be complied with in a way that is consistent with the interpretation of s 57(5), stated by me above. That regulation provides:
'(3) A notice under subregulation (1) is to
(a) ….
(b)advise that representations in relation to the application may be made in accordance with section 57(5) of the Act …'.
36 It is important to note that the right to make representations is only provided for in s 57(5). Accordingly, the requirement of reg 9(3) is that readers be informed of their right to make a representation, and to do so in accordance with the requirements of s 57(5). Of course, that must include, as a matter of logic, the need to inform the reader of the applicable time limits which arise under that provision. In this representation, and I suspect as a matter of general course, advertisers interpret the relevant provision, arrive at a date, and this specific date is inserted in the notification.
37 That practice is not without historic difficulties. I refer to Dorset Council v The Resource Management and Planning Appeal Tribunal case as an example. However, Mr McElwaine's point about the question of unfairness and treating representors equally is predicated on the closure date being fixed by council. However, if s 57(5) is read as providing the planning authority with the right to extend the period subsequent to the representation period to allow for late representations, I do not see that this is inconsistent with or creates any significant difficulty in relation to the requirements of reg 9(3).
38 That regulation requires information to be given as to the right of the reader to make a representation in accordance with s 57(5). Section 57(5) does not set out a specific date. It provides for a period of 14 days, or such further time as the planning authority may allow, not exceeding a further period of 14 days. That is the information that ought be provided in order to comply with the provisions of reg 9(3). Provision of that information, either expressly or by reference to the section, would then place all potential readers in exactly the same position in terms of the information they receive in respect of the time limited for making representations and their rights in relation to that question. In particular, a reader would be informed that a representation must be made within the period of 14 days, or within such further period as may be allowed by the planning authority, up to a further 14 days.
39 I acknowledge that this interpretation permits a planning authority to exercise discretion according to the individual circumstances of the case, and that this may be perceived as potentially treating some representors unequally from others. However, detailed scrutiny does not support this conclusion. All exercises of discretion carry the inherent potential for unequal treatment. On the other hand, the power to extend time caters for circumstances in which, for good reason, a person with a real and legitimate interest in the development application, the type of person contemplated as a representor by the process under s 57, has not been able to lodge an application within the initial 14 day period. The provision, read in this way, provides for the amelioration of that strict time limit, but still limits the overall period to 28 days, and leaves the planning authority with the discretion to refuse the extension if circumstances make that appropriate. It seems to me that this power to ameliorate the effect of the strict time limit is more consistent with the objective of public participation in the planning process incorporated by s 5 and the objectives of the LUPA Act, than the interpretation contended for on the part of the respondent.
40 I can understand also that it might be argued that a less certain finalisation date in respect of representations disrupts the overall assessment process, or at least has the potential to do so. However, when regard is had to the provisions of s 57(6), it seems to me that the process prescribed by that provision takes into account and contemplates that there may be uncertainty in relation to the representation period. That provision prescribes the following process. Under s 57(6)(a), the decision on the permit is not to be made before a certain time, which is the period set out in s 57(5). That period will be the period as extended if that extension is allowed.
41 Section 57(6)(b), rather than linking the time limit for the finalisation of the whole determination process to the end of the representation period, in fact links it back to the original lodgement date. Accordingly, the finalisation date of the application will remain the same, irrespective of variations in the representation period. If such a period was always fixed before notification, there would be no need to have this differential means of determining the earliest and latest date for finalisation of the application. It would have been a simple matter to have the finalisation date calculated according to a time period that runs from the end of the representation period.
42 These provisions mean that there can be certainty as to the finalisation date, and that date is not impacted by late changes in the representation period. It follows that there is no reason to read down the provision in the way contended for by Mr McElwaine. The result is that the council did have power to extend the time in respect of this representation, and, in fact, if it had decided to do so, to accept the representation. The content of the letter of 7 September 2016 evidences a refusal by the planning authority to extend the time period, not in an exercise of discretion, but in the erroneous belief that, as a matter of law, it did not have power to do so."
Consideration
The single ground of appeal in the present case does not identify any legal or factual or discretionary error but merely asserts in effect that the learned primary judge erred in not accepting the contentions advanced before him by the present appellant.
I repeat what I said in Minister Administering the Mineral Resources Development Act 1995 v Tarkine National Coalition Inc [2016] TASFC 4 at [35]–[38], and in Chu v Russell [2016] TASFC 1 at [61]–[64] citing (amongst other cases) Bahonko v Sterjov [2008] FCAFC 30 at [3].
Notwithstanding what was said in Bahonko v Sterjov, namely that the fundamental aspect of the appellate process that appeals are made available for the correction of error imposes a basic obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it, unless an occasion arises for suspecting, on reasonable grounds, that such an examination may yield a conclusion of appealable error. I have in fact "hunted" through the material at first instance and have reconsidered it, even though a first reading of the learned primary judge's reasons for judgment gave no cause for reasonable suspicion of appealable error.
I have read the learned primary judge's reasons for decision with care on more than one occasion. I have listened to the JAVS court recording of the contentions made by the appellant to his Honour. I have read the written submissions filed on behalf of the appellant before this Court, which for the first time identified the erroneous reasoning complained of by the appellant, and I have listened to the submissions made by counsel for the appellant before this Court.
As far as I can ascertain the learned primary judge considered every argument raised by the appellant before him, and on the appeal before this Court nothing was raised in the appellant's submissions that was in reality new or different to the appellant's original submissions.
The erroneous reasoning complained of by the appellant was ultimately set out in its written submissions as follows:
"3.30 First, at [29-30] his Honour's attention focused upon the word allow in section 57(5). The correct approach required his Honour to consider the meaning of the provision read in its entirety and in the context of the somewhat detailed statutory scheme described above. It is wrong to read a single word out of context.
3.31 Secondly, there is no support for his Honour's reasoning at [31], that section 57(5) is consistent with a general power to extend time. The provision is not to be equated with power to grant an indulgence to an individual, in order to permit that person to assert or maintain an individual right or privilege. The public nature of the process tells against this construction.
3.32 Thirdly, at [34] his Honour paid insufficient attention to the statutory consequences of public notification. This Court has repeatedly emphasised the essential importance of the requirement to give public notice, and the consequences of non-compliance. The rationale which underpins the requirement of public notification is, necessarily, that all members of the public are treated equally, not differentially.
3.33 Fourthly, his Honour reasoned at [37] that upon his interpretation of the provision, the conferral of a discretion is not inconsistent with and does not create 'significant difficulty' in relation to the requirements of the Regulations. That is a large proposition which does not withstand analysis. His Honour overlooked the requirement that public exhibition of the documentation must run concurrently with the representation period. The difficulties which flow from his Honour's interpretation are set out above.
3.34 Fifthly, at [38] his Honour reasoned that section 57(5) 'does not set out a specific date'. On the contrary, and for the reasons set out above, it must be construed as requiring the determination of a defined period of time in advance of the giving of notice.
3.35 His Honour commented upon the consequences of 'unequal treatment' at [39]. He observed, correctly, that upon his interpretation there is at least the potential for unequal treatment as between representors. In justification he referenced a class of persons with 'a real and legitimate interest in the development application'. In doing so his Honour overlooked that the Act does not make this distinction and, conversely, expressly proceeds on the basis that all members of the public are treated equally.
3.36 At [40] he considered, but then discounted, the concern that his interpretation may lead to 'uncertainty in relation to the representation period'. The specification of a defined period of time achieves the fundamental purpose of public notice, is consistent with each other provision of the statutory scheme and promotes a clear objective of the legislation which is to define a period within which all members of the public may equally exercise the right to comment. Uncertainty, by the exercise of individual discretion, does not achieve these objectives.
3.37 Finally, at [41] he observed that if the period 'was always fixed before notification, there would be no need to have this differential means of determining the earliest and latest date for the finalisation of the application.' What his Honour meant by this is entirely unclear. If a planning authority determines, before notification, to extend the 14 day period, then section 57(6) operates in a perfectly understandable and logical way. The starting point is a period of 14 days. It may be extended. Where it is, then subparagraph 6(a) operates. A determination to extend the period does not operate to displace the 42 day period referred to at subparagraph (6)(b), although for the reasons above it may engage section 59."
I do not accept any of those contentions. I prefer the respondents' submissions to the contrary. I regard the reasons for decision of the learned primary judge and his conclusion as to the construction of s 57(5) of the Act as unimpeachable and I respectfully adopt them as my own. For those reasons I arrive at the same conclusion as his Honour, however I make some further observations of my own.
Any other construction of s 57(5) would deny that section its full force and effect by limiting the relevant extension power. If the power were to operate only prospectively before advertisement of a notice of application, it would be confined to cases where the planning authority unilaterally decided to extend the 14-day period before advertising the notice, or to the unlikely scenario where a person somehow knew of the details of the application before the notice was advertised (or given in the case of an owner or occupier of adjoining land) in accordance with reg 9(3) of Land Use Planning and Approvals Regulations 2014 (the Regulations); and for some reason anticipated an inability to make a representation within 14 days from whenever notice of the application was to be advertised or given. The only other alternative construction, namely one requiring an application to extend time to be made after advertisement but before the expiration of the initial 14 days has nothing to commend itself, as any member of the public becoming aware of the notice of application within the initial 14 days could, in this modern era, make a nominal representation virtually instantly in order to secure the status of a representor and future rights of appeal. Clearly the paramount purpose and object of the provision is to provide, in a proper and deserving case, the possibility of the discretionary grant of extra time to a person who only became aware of the relevant letter or newspaper advertisement after the expiration of the initial 14-day period but before the expiration of 28 days.
Nor does the construction adopted by the learned primary judge result in members of the public being treated differentially. I am not persuaded otherwise, with respect, by the observations of Preston CJ to that effect, made in a different statutory context, in Woolcott Group Pty Ltdv Rostry Pty Ltd [2015] NSWLEC 46 at [59]. If planning authorities advertise and give notice of an application properly in accordance with s 57(5) of the Act and reg 9(3) of the Regulations adjoining occupiers and owners and all of those members of the public reading the advertisement would know and understand that any representation must be made within a period of 14 days commencing on the date on which notice of the application was given (and that date could be specified), or within such further period not exceeding 14 days beyond that date as may be allowed by the planning authority. As the learned primary judge said in his reasons for judgment at [30], the requirement of reg 9(3) is that readers be informed of their right to make a representation, and to be so informed in accordance with the requirements of s 57(5) of the Act. That must include the need to inform the reader of the applicable time limits which arise under that section, and in particular the possibility of an extension of time of up to 14 days.
Once those things are understood the appellant's remaining arguments fall away and the section confers an ordinary and commonplace discretionary power exercisable, as common sense would dictate, in circumstances where a prospective representor needed time beyond the initial 14-day period to make a representation. All members of the public would be treated equally and developers would know that in reality a relevant application would be subject to a potential 28-day period for representations. The application and associated documentation need only to remain open for inspection for the full period of 28 days contemplated by s 57(5) of the Act.
Equally, the power could be exercised prospectively by a planning authority of its own motion in a complex case where it is anticipated it would take representors longer than 14 days to prepare a thorough representation. However, that cannot be, in my view, the sole intended purpose of the power to extend time and no such unilateral exercise of the power of extension by a planning authority could prevent members of the public from making an application for an extension of up to 14 days after the expiration of the initial 14-day period.
Disposition
I would dismiss the appeal.
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