Hobart City Council v Resource Management and Planning Appeal Tribunal
[2007] TASSC 29
•24 May 2007
[2007] TASSC 29
CITATION:Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 29
PARTIES: HOBART CITY COUNCIL
v
RESOURCE MANAGEMENT AND
PLANNING APPEAL TRIBUNAL
JADWAN PTY LTD AND OTHERS
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M303/2006
DELIVERED ON: 24 May 2007
DELIVERED AT: Hobart
HEARING DATE: 17 April 2007
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Administrative Law – Freedom of information – Reasons for administrative decisions – Adequacy of reasons – Extent of duty to find material facts – Extent of duty to identify evidence upon which findings of fact based.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s24.
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, applied.
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, referred to.
Aust Dig Administrative Law [1188]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine
Respondent Jadwan Pty Ltd: D R Armstrong
Parties Joined: D J D Morris
Solicitors:
Appellant: Shaun McElwaine
Respondent Jadwan Pty Ltd: D R Armstrong
Parties Joined: Simmons Wolfhagan
Judgment Number: [2007] TASSC 29
Number of paragraphs: 47
Serial No 29/2007
File No M303/2006
HOBART CITY COUNCIL v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL
REASONS FOR JUDGMENT UNDERWOOD CJ
24 May 2007
Introduction
Twenty Fitzroy Place, Hobart is owned by Jadwan Pty Ltd ("the respondent"). Fitzroy Place is a wide, tree-lined, inner residential street. Star Street is a narrow, dead-end street which runs off Fitzroy Place in an easterly direction. The respondent's property has a 7.5 metre wide frontage onto Fitzroy Place and an 80 metre wide frontage onto Star Street. Until 1997, the respondent used the large, heritage listed residence built on the site as a nursing home for up to 51 residents. The respondent applied to the Hobart City Council for a permit to use the property as "affordable accommodation", with a caretaker or manager's flat. The proposal was described by the Resource Management and Planning Appeal Tribunal ("the Tribunal") in these terms at par2:
"Although Jadwan Pty Ltd owns the property the proposal is for a welfare organisation, Anglicare, to be responsible for managing the property. Anglicare is a large, perhaps Tasmania’s largest, non-profit, non-government organisation that provides a range of social services to those in need. The State Government has developed an affordable housing strategy. This is a policy, designed to provide relatively low cost accommodation for disadvantaged members of the Tasmanian community. Part of that strategy has been the development of a boarding house in each region of the state. Anglicare already operates a boarding house very similar to that proposed for this property in the north west of the state at Burnie. One is due to open, or may well have opened already, in Launceston."
Many local residents made representations to the Council, all but one of which were in opposition to the proposed development. The Council refused the respondent's application and the respondent appealed to the Tribunal. On 2 November 2006 the Tribunal conditionally granted the application for a permit and the Council has now brought the matter to this Court.
The issues
The appellant Council has invoked the provisions of the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"), s25, and the provisions of the Judicial Review Act 2000, s17. The grounds and issues raised by the application for a review and those raised by the appeal are identical. I hope I do not do them an injustice if, at this early stage, I summarise them as follows. The Tribunal erred in law by:
(1)failing to give adequate reasons for its decision with respect to The Schedule parE7.2(i) and (ii) and cl 5.7 of the Hobart Planning Scheme; and
(2)taking into account irrelevant material when making its decision with respect to parE7.2(i) of the Hobart Planning Scheme.
The law
The Act, s24, relevantly provides:
"(1) Subject to this section and to section 23, the Appeal Tribunal must give written reasons for its determination of an appeal.
(2) The reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
(3) …".
The definition of "reasons" enacted in the Judicial Review Act, s3, is in virtually identical terms. Indistinguishable provisions are to be found in other jurisdictions. See, for example, Administrative Decisions (Judicial Review) Act 1977 (Cth), s13, Administrative Appeals Tribunal Act 1975 (Cth), s28 and Civil and Administrative Tribunal Act 1998 (Vic), s46.
What then was the extent of the Tribunal's obligation to give reasons for its decision? The answer to this question begins with the Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. In that case, the High Court firmly rejected the proposition that there was a general common law rule or principle of natural justice that required a tribunal to give reasons for an administrative decision. This is so, even if the decision involves the exercise of a discretion and adversely affects the interests or legitimate expectations of others. Although Kirby J was in dissent in that case, he later confirmed in Minister for Immigration and Multicultural and Indigenous Affairs Ex parte the Applicant (2002) 191 ALR 569 at 575 that the foregoing was a correct statement of the law. Osmond has been applied in several cases. See eg, Canwest Global Communications Corporation v the Treasurer (1997) 147 ALR 509 at 535 and York v Medical Assessment Tribunal [2003] 2 Qd R 104 at 115.
In Seablest Pty Ltd v Smith & Ors A24/1996, Slicer J considered the extent of a tribunal's statutory obligation to give reasons. At 3, his Honour applied the following passage taken from a judgment of mine in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262:
"Of course, in short simple cases the reasons need not be elaborate but, in each case, they must be sufficient to enable the parties to ascertain what facts were found, which of the arguments put to the commissioner were accepted and which were rejected and what law was applied to arrive at the ultimate determination."
His Honour equated the tribunal's obligation with that imposed upon a judicial officer as expounded by the New South Wales Court of Appeal in Pettitt v Dunkley [1971] 1 NSWLR 376, particularly at 388.
The obligation on the Workers Rehabilitation and Compensation Tribunal is prescribed by the Workers Rehabilitation and Compensation Act 1988, s61(3), simply "to provide a statement in writing of its reasons for making the determination …". This Court has interpreted that general duty as being akin to the duty imposed on a judicial officer to give reasons. See Attorney-General for Tasmania v Smith A87/1994 at 8 – 9; Pataki v University of Tasmania [2000] TASSC 144 at 7 – 8; Burgess v Umina Park Home for the Aged (supra). However, the words used in the Act, s24(2), are quite different from the words used in the Workers Rehabilitation and Compensation Act, s61(3) and, particularly in the light of the decision in Osmond, it does not follow that the two sections should be construed to mean the same thing.
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the High Court examined the meaning of the Migration Act 1958 (Cth), s430(1), the relevant terms of which are indistinguishable from the Act, s24(2), and the majority held that:
(1)"material questions of fact" means questions of fact that the tribunal considered material;
(2)the absence of a finding of fact will indicate that the tribunal did not consider that fact to be material;
(3)the statutory provisions only required a recording of what was found and did not impose any duty to make findings of fact; however
(4)the absence of a finding of fact might indicate other error, such as taking into account irrelevant material or failing to take into account relevant material.
In Transcend Networks Pty Ltd v Launceston City Council [2001] TASSC 134, Slicer J revisited the meaning of the Act, s24, and referred to Yusuf's case. His Honour said this at par18:
"Accepting that the test in Minister for Immigration and Multicultural Affairs v Yusuf (supra) impacts on the decisions of all tribunals and is not simply a decision dependant upon the particular terms of a statute, the methodology employed by the Tribunal in this case nevertheless remains inadequate."
As I understand his Honour in that paragraph and in the following three paragraphs, he is expressing a view that the Act, s24, imposes a general duty to give reasons and that that duty is akin to the one imposed on judicial officers by the common law. If that understanding is correct, I respectfully disagree with those views, as they appear to me to be contrary to the decision of the majority of the High Court in Yusuf.
Mr McElwaine, counsel for the appellant, submitted that having regard to the nature of the proceedings in the Tribunal, the decision in Yusuf must be read down in the light of the later decision of the Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518.
Mr Wang unsuccessfully applied for a protection visa. The decision was affirmed by the Refugee Review Tribunal. Mr Wang appealed to the Federal Court and was successful. The Federal Court ordered that the appeal be allowed and that Mr Wang's application be reheard by the tribunal. As the tribunal had made findings of fact that were favourable to Mr Wang, the Federal Court ordered that the rehearing be held by the tribunal constituted by the same member who constituted the tribunal in the first instance. The validity of that order was the issue before the High Court. Resolution of that issue revolved around a proper construction of the Migration Act, s481(1)(b), which conferred certain powers on the Federal Court upon the determination of an appeal from the Refugee Review Tribunal.
In the course of his reasons, McHugh J referred to the statutory obligations that the Migration Act imposed upon the Refugee Review Tribunal and confirmed the correctness of the decision in Yusuf. In their judgment, Gummow and Hayne JJ held that the Migration Act empowered the making of the impugned order, but the Federal Court's discretion had miscarried in doing so. In the course of explaining the latter conclusion, their Honours observed at 540 that whether the favourable findings on the first review would be made again on the second review, would depend entirely upon the view of the tribunal conducting the second review. The facts were, in a sense, "at large" and could not be controlled simply by directing that the same person conduct both reviews. In that context at 540 – 541, their Honours distinguished proceedings in the Refugee Review Tribunal from proceedings in a court and observed that in adversarial litigation the findings that are made are a reflection of the issues joined by the pleadings and interlocutory processes and consequently, are issues which the parties have identified. By contrast, the findings of the Refugee Review Tribunal are a reflection of the views of the tribunal, not those of the complainant, and not those of any adversarial parties. Their Honours then affirmed the decision in Yusuf. The remaining two members of the court, Gleeson CJ and Kirby J, said nothing about these matters.
Mr McElwaine submitted that the proceedings in the Tribunal were akin to adversarial proceedings in a court in that the issues were defined by the reasons for the appellant's refusal for granting the permit and the grounds of appeal. The submission was that application to the Act, s24(2) of the views expressed by Gummow and Hayne JJ in Wang, to which I have referred, should lead me to construe the subsection as imposing a much wider obligation, akin to that imposed by the common law on judicial officers, than that which the High Court in Yusuf determined was imposed by the identical provisions in the Migration Act, s430(1). The same submission was put to the New South Wales Court of Appeal, with some success, in Segal v Waverley Council (2005) 64 NSWLR 177. In that case Tobias J, with whose reasons for judgment the other members of the Court agreed, said at 189:
"In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them. The position of the Tribunal under the Migration Act is essentially different."
Rather cautiously, Tobias J went on to say that "it does not necessarily follow that a commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision." After referring to a considerable number of authorities, his Honour clarified his views at 202, by holding:
"(a) Although a Commissioner of the Land and Environment Court is obliged to consider the principal contested issues before him or her, each of those issues is the genus of which the various arguments in favour or against the resolution of the issue in a particular way are species.
(b) It is unnecessary for a Commissioner or a judge of the Court to consider each of the species provided he or she has considered the genus. It is that which must be addressed in the Commissioner's or judge's reasons. Those reasons must be adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion."
Tobias J went on to say that the foregoing is probably not inconsistent with the observations of the High Court in Yusuf. However, there is a world of difference between the Tribunal and the New South Wales Land and Environment Court. The latter is a court of record, its judges are accorded status equal to Supreme Court judges in that State, and its proceedings are governed by a detailed set of rules and are truly adversarial in nature.
Mr McElwaine's submission must be rejected. Yusuf is relevant binding authority. There is nothing in Wang's case to indicate to the contrary. Although the proceedings in the Tribunal were illuminated by the appellant's reasons for rejecting the application for a permit and the grounds of appeal, the parties did not identify the issues. The proceedings in the Tribunal were not governed by the appellant's reasons for refusing the application or the grounds of appeal. The Act, s23(1), makes that clear by providing:
"(1) For the purpose of determining an appeal, the Appeal Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal."
The grounds of review/appeal
"(a)The Respondent erred in law in that it failed to comply with its obligation pursuant to Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993 in that it:
(i) failed to set out its finding on material questions of fact relating to the exercise of the discretion conferred by Clause E.7.2 of the City of Hobart Planning Scheme 1982 (the planning scheme);
(ii) failed to make findings on material questions of fact necessary as part of the exercise of the discretion conferred by Clause E.7.2 of the planning scheme; and
(iii) failed to refer to the evidence or other material on which those findings were based
in concluding that it would be in the circumstances of the case before it appropriate to exercise the discretion so conferred.
(b)The Respondent erred in law in that to the extent to which it did make findings on material questions of fact relating to the exercise of the discretion conferred by Clause E.7.2 of the planning scheme it failed to refer to the evidence or other material on which those findings were based, contrary to the obligation imposed by Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993.
(c)The Respondent erred in law in that in concluding that it was appropriate to exercise the discretion conferred by Clause E.7.2 of the planning scheme it failed in stating its findings on material questions of fact relevant to this issue why it rejected the evidence of Ms Noble, Mr Clarke and / or Ms Howarth and / or failed to state why that evidence was rejected or not preferred by it.
(d)The Respondent erred in law in that in exercising the discretion conferred by Clause E.7.2 of the planning scheme, it purported to draw conclusions from the evidence of Mr Read without identifying what that evidence was and where Mr Read failed to express any opinion by reference to the discretions conferred by Clause E.7.2.
(e)The Respondent erred in law in that it failed to make any finding on a material question of fact relevant to the exercise of the discretion conferred by Clause E.7.2 of the planning scheme, that is to say why provision of the total number of car parking spaces required by the planning scheme would be detrimental to traffic or pedestrian safety on the land the subject of the development application.
(f)The Respondent erred in law in that it failed to include in its reasons its findings on a material question of fact namely why the use applied for by its nature and location could be serviced by on street or other existing off site car parking capacity as required by Clause E.7.2(ii) of the planning scheme and also failed to include a reference to the evidence or other material on which the exercise of the discretion pursuant to that Clause was conferred, contrary to its obligation pursuant to Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993.
(g)The Respondent erred in law in that in exercising the discretion conferred by Clause E.7.2(i) of the planning scheme it took into account evidence as to the likely levels of car ownership and use at the proposed facility when such evidence was irrelevant to a proper consideration of the discretions conferred by Clause E.7.2(i) of the planning scheme.
(h)The Respondent erred in law in that it failed in its duty pursuant to Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993 to give any or any adequate reasons together with a reference to the facts on which those reasons are based, for its conclusion that it was satisfied that the proposal was consistent with the zone objective of the Residential 1 Zone and the statement of desired future character pursuant to the planning scheme."
Although, as the High Court observed in Yusuf, the absence of a finding of fact might well indicate other error such as a failure to take into account some matter that it should have taken into account, that ground of review and/or appeal was not pleaded. Insofar as the above grounds of review claim that error occurred in that the Tribunal simply failed to make findings of fact, it must fail. This is so, even if the findings relate to a matter which the planning scheme required the Tribunal to make findings. It follows that ground 2(a)(i) and (ii) must fail and in consequence, so does ground 2(a)(iii). Ground 2(c), (e), (f) and (h) must suffer the same fate.
The proceedings in the Tribunal
The Hobart Planning Scheme provides that the respondent's land is located in a residential zone. It appears, as the Tribunal observed, that "the issues of traffic, access and parking were in many respects, central to the whole appeal". There was a difference between the witnesses who gave evidence about the number of car parking spaces that were required by the planning scheme. The evidence ranged from 23 to 25, but it was common ground that no more than 17 spaces could be provided on the site as it was presently configured.
As the Tribunal correctly noted, the issue of parking and traffic access is initially set out in the planning scheme, Part 4, cl P.14 which provides:
"P.14Development will only be permitted provided it will facilitate the mutual compatibility of public and private transport and it can demonstrate that it will not create traffic flows and movements that are detrimental to safety or amenity, and can make adequate provision for the direction, access, turning and parking of all vehicular traffic, as well as provision for pedestrian movement, in accordance with Council requirements."
The planning scheme, Schedule E, deals with Traffic, Access and Parking. Relevantly, Schedule E, par1, required the Tribunal to apply the principles set out in the planning scheme, Part 4, cl 14. Schedule E sets out a table of parking spaces that have to be provided, depending upon the use to which the land is put. Schedule E contains a heading "Exceptions and Variations From Parking Requirements". Paragraph E.7.1 has no application to land in a residential zone. Paragraph E.7.2 provides:
"E.7.2In a Residential … Zone, … the Council may vary, limit, reduce or waive the number of parking spaces required under Section E.4 if :
(i)the provision of the total number of spaces required would be detrimental to residential amenity, the environment, the streetscape or traffic/pedestrian safety;
(ii)the use by its nature and location can be serviced by on street or other existing off site car parking capacity, without detriment to traffic/pedestrian safety or the convenience and amenity of nearby residents."
Lastly, parE.11.1 provides:
"E.11.1Having regard to the Planning Scheme overall, particularly Principles 14 and 15, Council has a discretion to refuse or permit any proposed use or development which does not comply with the quantitative standards imposed by this Schedule."
The Tribunal noted what it described as a tension between parsE.7.2 and E.11.1, and concluded that as the former paragraph was specific in its terms and the latter general, E.7.2 was the applicable provision. No complaint is made about that conclusion.
The issue for the Tribunal was whether it was prepared to reduce the number of parking spaces required by the planning scheme, Schedule E, parE.4 from 23 or 25 (the Tribunal found it unnecessary to resolve this difference) to the 17 spaces which could be provided on the site as presently configured. Mr McElwaine, who appeared as counsel for the appellant in the Tribunal, correctly submitted that the Tribunal could only so reduce the required number of parking spaces if it was satisfied with respect to the two matters provided for in subpars(i) and (ii) of parE.7.2.
There was a considerable body of evidence directed towards this issue. There was evidence to the effect that cars would park in Star Street and this would exceed the street's "environmental capacity". There was also evidence that cars would park in Fitzroy Place and that parking spaces were in short supply in that street.
Mr Frazer Read, town planner, gave evidence in support of the respondent's appeal to the Tribunal. In his proof of evidence, Mr Read set out the proposed use in some detail. It is worth repeating part of that detail here:
"2.3.3 The aims of the proposed boarding house model are:
»Provision of secure, safe, affordable housing for residents;
»Provision of opportunities for participation in social, recreational and life skill development activities;
»Provision of social support and tenant participation in the running of the site;
»Improved access to the community and health services sector; and
»Low-level support to residents in the form of meals, some cleaning services, and links to community services and employment.
2.3.4Residents would receive the following low level support under the proposal:
»2 prepared/cooked meals per day;
»Provisions for third meal as well as snacks;
»Weekly laundering of bed linen;
»Weekly cleaning of bedrooms;
»Access to information on community services and employment; and,
»Access to a caretaker or tenancy coordinator at all times.
2.3.5Anglicare Tasmania Incorporated has been appointed through a tender process by Housing Tasmania to manage the facility. They are experienced operators of this type of facility. Anglicare has managed a similar type of facility in Burnie since August 2005.
2.3.6Three staff would be employed: an onsite caretaker, a cook, and a tenancy support worker. The cook will prepare two meals on a daily basis. The caretaker will be on site to maintain the grounds, undertake minor repair work, assist at meal times, and provide assistance outside of business hours. The tenancy support worker would be available Monday to Friday 9AM to 5PM to assist residents develop living skills and to ensure a sustainable tenancy. A copy of the tenancy support worker position statement is attached in Appendix C.
2.3.7The proof by Reverend Chris Jones of Anglicare Tasmania Incorporated provides further details in relation to the tenancy profile and management regime for the proposed facility.
2.3.8Tenancy Profile
2.3.9The facility will predominantly accommodate singles aged 40 years and over. Eligibility is based on Housing Tasmania's Social Eligibility Policy and requires confirmation of income and asset levels and Tasmania residency. The projected tenancy profile is based on data from Housing Tasmania for one bedroom residential accommodation as at 5 October 2005, which indicates that 60 per cent of applicants 40 years or over."
Mr Read opined that the planning scheme required 22 spaces on site and gave reasons for holding that opinion. He noted that only 17 spaces could be provided, but stated that in his opinion the shortfall was "acceptable". He said nothing about the planning scheme, Schedule, parE.7.2, presumably relying on parE.11.1. Mr Read's proof of evidence at pars4.5.1 and 4.5.2 provides as follows:
"4.5 Traffic & Parking
4.5.1The proposal will fall short of the permitted parking requirements under Schedule E of the Scheme by 5 spaces. The parking requirements under the Scheme cover the various uses classified as a multiple dwelling. The evidence of Keith Midson, GHD Traffic Engineer, provides specific evidence in relation to parking needs associated with boarding house uses. Based on that evidence, as well as the nature of the proposed use, the heritage status of the site, proximity to CBD and Sandy Bay, and public bus services the shortfall is, in my opinion, acceptable. In addition, the proposed use is targeted at low-income earners. Based on information from Anglicare as to operations of similar boarding house facilities at Burnie such tenants have a low level of car ownership. It is also likely that given the cost of owning and running a car, that level of ownership is lower with tenants that qualify for housing assistance.
4.5.2It is recommended as a condition of approval that the proposed use is linked to Anglicare Tasmania Incorporated as operator. This condition would create certainty that the site will not in future be used for a different type of tenant that may have greater car ownership and parking requirements. This would also address concerns that on street parking will be utilised along Fitzroy Place and Star Street."
Ms Noble and Mr Clark, who are also town planners, gave evidence contrary to that given by Mr Read. They were called by the appellant. Ms Noble referred to a report by Ms Howarth, who is a traffic engineer. Ms Howarth conducted traffic counts and traffic surveys in Star Street. She consulted statistical data upon which she based the estimated number of trips that the proposed use would generate. She applied statistical data for medium density residential flat buildings and motels in New South Wales because:
"[T]here is no way of determining from the application what the users of the boarding house will have in terms of cars and therefore the comparable statistics are the only available objective criteria available [sic] and therefore appropriate to use for this purpose."
Ms Howarth found that the planning scheme required the provision of 25 parking spaces on site for the proposed use, and that as only 17 could be so provided, there would be a shortfall of 8 spaces. She said, at par7.6 of her proof of evidence:
"Whilst there is some spare capacity on street there is not enough for a shortfall of 7 [sic] spaces to be readily achieved in the vicinity of the site."
Clearly, Ms Howarth was assuming that because the required onsite parking was, in her opinion, 25 sites, there would be a need for 8 sites to be provided on the street.
From her surveys, statistics and other material Ms Howarth expressed the view that increased trip generation, plus service vehicles, would exceed the environmental capacity of Star Street. In addition, she expressed the view that a "shortfall" of eight spaces would exacerbate the demand for parking on Star Street and Fitzroy Place.
Ms Noble adopted Ms Howarth's views. She also referred in her proof of evidence to Mr Read's evidence that not all the occupants of the facility would have cars. Ms Noble disputed the value of this evidence, stating, in effect, that the issue of parking had to be considered for the "use for which approval is sought and not the requirements of the initial tenants". This view was summarised by Ms Noble in her conclusion at par13 of her proof of evidence:
"– Parking and Traffic – It is not appropriate to exercise discretion to allow such a significant variation to the parking requirements of Schedule E as the proposal is contrary to Principle 14 and does not demonstrate there is adequate provision for parking and traffic flows."
Mr Clark's proof of evidence states that the planning scheme required the proposed development to have 24 car parking spaces on site. There follows a reference to the Schedule, parE.7.2, and these opinions which were expressed at pars5.17 and 5.18:
"5.17A variation under this clause [E.7.2] is not warranted as under E.7.2(i) as the required 23 car parking spaces cannot be provided on the site due to lack of space, not impact on residential amenity. Further, to minimise the level of car parking to avoid a detrimental impact on the neighbouring residence through the provision of buffer zones, would require yet less on-site parking than is currently proposed. Such a reduction would exacerbate the impact on the surrounding area in terms of parking.
5.18Under E7.2(ii) the additional parking is not readily available on the adjacent Star Street. Star Street is a narrow lane and accommodates a number of houses which do not have their own off-street parking. The width of the carriageway allows only parking on the north eastern side of Star Street and the turning head at the end of the dead-end street is small, making manoeuvring difficult. On-street parking is more available on the wider Fitzroy Place, but residents of the facility walking down Star Street would be likely create [sic] noise and impact upon the amenity of the area. Both Fitzroy Place and Star Street are restricted parking zones. No public car parks are located in the vicinity."
The Tribunal's decision
At par25 of its reasons for decision, the Tribunal referred to the evidence of the witnesses set out above in these terms:
"It was submitted that there was, simply put, no evidence at all upon which the Tribunal could be satisfied that there was compliance with the clause. The only evidence from the Appellant about the matter came from Mr Frazer Read. Mr Read's proof of evidence (A7) dealt with the issue at paragraph 3.5.2. It is plain that he concluded that the applicable clause in the Planning Scheme was E11.1. His opinion was predicated on an assumption that it was the applicable clause. He did not provide any evidence, at all, in relation to how, and if so in what way, the proposal was to be assessed by reference to E7.2. In contrast evidence from Ms Noble and Mr Clarke, two other planners called by the Council and the parties joined respectively, both assessed the proposal by reference to the appropriate standard, namely E7.2 and both opined, that the proposal was inappropriate."
In the following paragraph, the Tribunal made some findings of fact:
"Ultimately however the Tribunal's role is clear. It is necessary to assess, as has been determined, against the provisions in E7.2, the proposal and determine whether or not it is appropriate to exercise the undoubted discretion that exists in the manner that the proponent requests. Of course the Tribunal may inform itself in any way that it sees fit (see Section 16(I)(c) of the Planning Appeal Act). This however does not in the Tribunal's view authorise it, except in the most extreme cases, to substitute its own view for the views of expert witnesses. The Tribunal's view is that it would be in the circumstances of this particular case appropriate to exercise the discretion and is satisfied that the needs to be assessed are adequately addressed on the evidence. It reaches this conclusion not withstanding the facts, as is acknowledged, Mr Read's analysis is based on an assessment of a clause that, in our view, is not applicable. But from that assessment can be drawn various conclusions. Those conclusions include that to provide any more car parking spaces would be detrimental to residential amenity, the environment and the streetscape, due to the impact on the existing trees in the car park and/or removal of other landscaped areas. The proposed parking plan utilises only the existing paved areas. It is also clear from this evidence that the second limb of E.7.2 is able to be addressed. No on street parking need be utilised in Star Street. It can be more than adequately provided, in the unlikely event it is needed, in Fitzroy Place, without any negative impact upon 'traffic/pedestrian safety or the convenience and amenity of nearby residents'."
Mr McElwaine submitted that in that paragraph, the Tribunal made a finding that the provisions of the planning scheme, Schedule, parE.7.2(i) and (ii) were "adequately addressed" which I infer means satisfied. I accept that submission because that is exactly what the Tribunal said. The Tribunal found that to provide more than 17 spaces on site would require the removal of trees and other landscaped areas and that would be detrimental "to residential amenity, the environment and the streetscape" (parE.7.2(i)), and that no on-street parking will be required on Star Street. The Tribunal went on to observe, in effect, that 17 on-site spaces will be adequate for the use to which the premises will be put, but in the unlikely event that there arises a need for more parking at any time, Fitzroy Place will provide it "without any negative impact upon [detriment to] traffic/pedestrian safety or the convenience and amenity of nearby residents" (parE.7.2(ii)).
Mr McElwaine correctly submitted that the Tribunal regarded those findings of fact as material and, consequently, the Act, s24(2), required the Tribunal to refer to "the evidence and other material on which those findings were based." Mr McElwaine further submitted that the only evidence referred to was that given by Mr Read and on the Tribunal's own finding, he did not address the provisions of the planning scheme, parE.7.2. All the evidence given with respect to that paragraph was contrary to the findings the Tribunal's made, and this led Mr McElwaine to submit that therefore there had been a breach of the Act, s24(2). These submissions are encapsulated in grounds 1(b) and (d) of the application for review/notice of appeal.
Was there error?
It is simplistic to dismiss the whole of Mr Read's evidence upon the basis that he addressed the Schedule, parE.11.1, and not parE.7.2 because a great deal of what he said was relevant to both paragraphs. The Tribunal expressly said that their conclusions were based on Mr Read's evidence. I have referred to some of that evidence and it is clearly relevant to the findings of fact that were made in par26 of the Tribunal's reasons for decision.
Mr McElwaine complained that the Tribunal failed to give reasons for rejecting the evidence of Ms Noble, Ms Howarth and Mr Clark. The Act, s24(2), does not require the Tribunal to do that. It only obliges the Tribunal to refer to the "evidence or other material on which those findings were based". That has been done.
However, there is more. In order to fully understand the reasons of the Tribunal, it is necessary to refer to the following conditions that were imposed on the Tribunal's permit:
"The permit is valid only for the use of the premises by the Anglicare Tasmania Incorporated. Use of the site by any another person and/or organisation shall not be permitted without further approval of the Council.
Reason: To ensure the use of the premises is limited in scope to that applied for in this application.
Automatically opening boom gates are to be installed on both the Fitzroy Place entrance to and the Star Street egress from the property.
Reason: To prevent access to the facility via Star Street, to control car park operating hours.
Location and directional signage must be provided to direct traffic from Fitzroy Place to the satisfaction of Council.
Reason: to avoid unnecessary vehicle movements along Star Street."
The Tribunal's reasoning is illuminated, as Mr Armstrong, counsel for the respondent submitted, by par27 of the reasons for decision which provides:
"The evidence adduced, at the request of the Tribunal, in relation to parking patterns at the Anglicare facility in Burnie was also particularly important in reaching this conclusion. It supports the case advanced by the proponent that the likely levels of car ownership, and hence use, of residents will be low. The Tribunal’s conclusion, consistent with that evidence, is that even though it is proposed to have a residency of in the order of 24 – 25 people it is inherently unlikely that all of those persons living will in fact own cars. Even if one adds visitors and service and other vehicles it is unlikely that there will be many, if any, occasions during the year when the 17 car places that can be provided on site will be insufficient and create a need for parking to be undertaken offsite. Put another way the Tribunal is satisfied that provision of either 23 or 25 spaces as required under the Scheme is not necessary in the circumstances of this case. The facility will be more than adequately served by 17 spaces."
In the following paragraphs, the Tribunal accepts that the parking in Star Street is limited, but states that this problem can be solved by the imposition of conditions that will ensure that traffic enters the property via Star Street and goes onto it through a boom gate which prevents exits onto Star Street. As 17 spaces will be sufficient to cope with the traffic, there is no need to provide any off-street parking but, says the Tribunal, in the unlikely event that it is not sufficient, traffic will have to move through the property and out onto Fitzroy Place to find a parking spot. Paragraph 27 identifies evidence given with respect to the established Anglicare facility in Burnie as being part of the evidence upon which its findings in relation to the Schedule, parE.7.2 were based. For these reasons grounds 1(b) and (d) are not made out.
There remains ground 1(g) which provides:
"(g)The Respondent erred in law in that in exercising the discretion conferred by Clause E.7.2(i) of the planning scheme it took into account evidence as to the likely levels of car ownership and use at the proposed facility when such evidence was irrelevant to a proper consideration of the discretions conferred by Clause E.7.2(i) of the planning scheme."
Clearly the opening words of parE.7.2(i), "the provision of the total number of spaces required …" is a reference to the spaces required by the Scheme, clause E.4. Accordingly, the number of spaces actually required by the proposed use of the property is irrelevant as ground 1(g) asserts. However, as was conceded by Mr McElwaine, a consideration of parE.7.2(ii) does require a consideration of the spaces actually required by the proposed use of the property. In its reasons for decision the Tribunal said at par26:
"Those conclusions include that to provide any more car parking spaces would be detrimental to residential amenity, the environment and the streetscape, due to the impact on the existing trees in the car park and/or removal of other landscaped areas. The proposed parking plan utilises only the existing paved areas. It is also clear from this evidence that the second limb of E.7.2 is able to be addressed. No on street parking need be utilised in Star Street. It can be more than adequately provided, in the unlikely event it is needed, in Fitzroy Place, without any negative impact upon 'traffic/pedestrian safety or the convenience and amenity of nearby residents'."
It is clear to me that those sentences first address parE.7.2(i) by concluding that to provide the number of spaces required by the Scheme, whether that is 23 or 24 or 25, will be detrimental to the residential amenity because it will require the removal of trees and/or other landscaped areas, and secondly address parE.7.2(ii) by concluding that because of the nature of the proposed use, 17 on site spaces will ordinarily be sufficient and, consequently, there will be no recourse to parking in Star Street and only very rarely parking on Fitzroy Crescent. The Tribunal did not take into account an irrelevant consideration and ground 1(g) is not made out.
The notice of appeal and the application for a review are dismissed.
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