Hobart City Council v Smith - [2010] TASSC 11

[2010] TASSC 11

COURT: SUPREME COURT OF TASMANIA

CITATION: Hobart City Council v Smith [2010] TASSC 11

PARTIES:  HOBART CITY COUNCIL
  v
  SMITH, John
  SMITH, Penny
  WHEELER, Brad
DECISION

APPEALED FROM: Smith v Hobart City Council [2009] TASRMPAT 94

FILE NO/S:  479/2009
DELIVERED ON:  19 March 2010
HEARING DATE:  23 November 2009
JUDGMENT OF:  Porter J

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Control of particular matters – Subdivision – Principles governing consent or approval – General principles – Refusal based on lack of access to adjoining lot – Adjoining lot subject to development application but with access by rights-of-way – Effect of refusal to require developer to give up land for road access – Whether refusal contrary to principle.

Coulson v Shoalhaven Shire Council (1974) 29 LGRA 166; Proctor v Brisbane City Council [1993] 81 LGERA 3, considered.
Lloyd v Robinson (1962) 107 CLR 142, applied.
Aust Dig Environment and Planning [184]

REPRESENTATION:

Counsel:
             Appellant:  D J Morris
             First and Second Respondents:             S B McElwaine
             Third Respondent:  No appearance
Solicitors:
             Appellant:  Simmons Wolfhagen
             First and Second Respondents:             S B McElwaine

Judgment Number: [2010] TASSC 11
Number of paragraphs: 44

Serial No 11/2010
File No 479/2009

HOBART CITY COUNCIL v JOHN SMITH
and PENNY SMITH

REASONS FOR JUDGMENT PORTER J

19 March 2010

Introduction

The Hobart City Council has appealed to this Court pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25, from a decision of the Resource Management and Planning Appeal Tribunal made on 15 May 2009. Mr and Mrs Smith, the first and second respondents, are the owners of a large bushland block at 502 Nelson Road, Mt Nelson, on which there is a residence and some outbuildings. The third respondent is the owner of 504 Nelson Road. He did not wish to be heard on this appeal, and I will call Mr and Mrs Smith "the respondents".

In May 2008 the respondents applied to the Council for a permit for a 12 lot subdivision of their land. This was a cul-de-sac arrangement with access from Nelson Road. At its northern end, the frontage of No 502 onto Nelson Road is a narrow strip of land about 27 metres wide and 56 metres long. Numbers 504 and 506 Nelson Road are small rectangular blocks which lie either side of that strip of land. The large rectangular bulk of the respondents' land is adjoined on its eastern side by a similar sized and shaped block, which is 512 Nelson Road. The main access to 512 Nelson Road is by a right-of-way about 3.6 metres wide over 512A Nelson Road, another smaller block which has full frontage to Nelson Road. There is another access to the south eastern corner of 512 Nelson Road by means of a right-of-way about 18 metres wide and 25 metres in length from Lalwinya Road.

On 18 December 2008 the Council refused the respondents' application. There were two grounds, only one of which is relevant to this…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] TASSC 11
Decision Date: 19 March 2010

CaseChat Overview and Summary

Hobart City Council brought proceedings against Smith, contesting a refusal to grant development approval for a subdivision. The matter was determined in the Supreme Court of Tasmania. Smith proposed to subdivide a parcel of land, requiring the construction of access to an adjoining lot which was itself subject to a development application. The city council refused consent on the basis that the proposed subdivision lacked direct access to the adjoining lot. The refusal hinged on the absence of direct access, despite the adjoining lot being accessible via rights-of-way.

The court was tasked with deciding whether the refusal of consent contravened the principles governing development control, particularly in relation to the requirement for direct access. The central issue was whether the refusal was consistent with the statutory requirement that development consent should not be unreasonably withheld, and whether the principle of requiring direct access could be interpreted in light of the alternative access options available.

The court found that the refusal to grant consent was not contrary to the general principles of development control. The judge held that the requirement for direct access is not absolute and can be interpreted flexibly, taking into account the broader context and alternative means of access. The court emphasised that the principle of requiring direct access is intended to ensure reasonable and practical access, which could be achieved through rights-of-way in this case. Therefore, the refusal was not unreasonable, and the city council's decision was upheld.

The court confirmed the refusal of development consent. Smith was not granted approval to subdivide the land without providing direct access to the adjoining lot. The decision underscored the importance of interpreting development control principles flexibly, considering the practicalities of access in the specific context of the proposed development.

Orders