Howlin v Resource Management and Planning Appeal Tribunal (No 3) - [2016] TASSC 49

[2016] TASSC 49

COURT: SUPREME COURT OF TASMANIA

CITATION: Howlin v Resource Management and Planning Appeal Tribunal (No 3) [2016] TASSC 49

PARTIES: HOWLIN, Darryl Robert
v

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

FILE NO: 2519/2016

DELIVERED ON:  27 September 2016
DELIVERED AT:  Hobart
HEARING DATE:  20 September 2016
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Administrative Law – Judicial Review – Reviewable decisions and conduct – Discretion not to entertain application – Generally – Futile application – Application dismissed as abuse of process.

Judicial Review Act 2000 (Tas), s 38.
Aust Dig Administrative Law [1017]

REPRESENTATION:

Counsel:
           Applicant:  In person
           Clarence City Council:                S B McElwaine SC
Solicitors:
           Applicant:  Not applicable
           Clarence City Council:               Shaun McElwaine + Associates

Judgment Number: [2016] TASSC 49
Number of paragraphs: 11

Serial No 49/2016
File No 2519/2016

DARRYL ROBERT HOWLIN v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT HOLT AsJ

27 September 2016

For many years Mr Darryl Howlin has been attempting to obtain approval to subdivide land which he owns at Opossum Bay. The parcel of land, which has been the subject of various applications only has frontage to the public road known as Spitfarm Road through a narrow strip of land known as Howlin Lane. Howlin Lane, which is 5.82m wide, is too narrow to be capable of conversion into a public road. In addition to the parcel of land the subject of the applications, Mr Howlin's wife and stepdaughter own land which adjoins land owned by Mr and Mrs Geappen. These two parcels form a strip capable of connecting the land proposed to be subdivided to Spitfarm Road. The connecting strip of land is 16.8m wide where it joins Spitfarm Road and 16.54m wide where it meets the land proposed to be subdivided and has been known for many years as Marsh Street. Mr Howlin's various applications (with the exception of an application for a three lot subdivision which was rejected by the planning authority in 2006) were necessarily predicated on Marsh Street already being a road.
It was determined by the Supreme Court in proceedings between Mr Howlin and the relevant planning authority, being the Clarence City Council, that Marsh Street is not a highway. Clarence City Council v Howlin [2012] TASSC 26, [2012] 192 LGERA 360. An appeal by Mr Howlin was unsuccessful. Howlin v Clarence City Council [2013] TASFC 7. An application by Mr Howlin to the High Court for leave to appeal was refused. Howlin v Clarence City Council [2014] HCASL 3.
Despite the finality of the determination between Mr Howlin and the planning authority that Marsh Street is not a highway, or in other words not a public road, Mr Howlin continues to engage in the futility of asserting that the planning authority must treat Marsh Street as a sufficient road connecting the land the subject of the subdivision proposals to Spitfarm Road so as to render his proposals compliant with subdivision requirements. For any of the subdivision proposals to have been capable of coming into effect (with the exception of the three lot proposal rejected in 2006) Marsh Street must be taken to be a road. The existence of the private rights-of-way over Marsh Street is not enough. Even if a planning permit issued, a final plan for the subdivision could not be sealed. R v West Tamar Council, ex parte Phillips [1999] TASSC 107, [1999] 9 Tas R 1, [1999] 106 LGERA 278.
On 1 August 2016 the Resource Management and Planning Appeal Tribunal determined three appeals brought before it by Mr Howlin in relation to subdivision proposals refused by the Clarence City Council in 2005 and 2007. The proposals were for subdivisions each containing internal roads and respectively comprising 28 lots, 29 lots and 35 lots. Because of the binding determination that Marsh Street is not a highway the Tribunal could not approve any of the subdivisions as originally proposed without being satisfied that Marsh Street otherwise could provide permanent legal access between the proposed lots and the public road network in the area (as might be the case in strata titled gated communities). The proposals might have been capable of being approved if amended to include Marsh Street as part of the land the subject of the applications with Marsh Street to be constructed to required standards. Such an amendment would have required the cooperation of Mr and Mrs Geappen. Alternatively, the applications might have been amended by reducing the number of lots to three only. The Tribunal declined to amend the proposals and affirmed the decisions of the planning authority refusing subdivision approval. Howlin v Clarence City Council [2016] TASRMPAT 15.
On 29 August 2016 Mr Howlin filed an originating application challenging the decision of the Tribunal. Although the application contains in the heading a reference to both the Judicial Review Act 2000 and s 25 of the Resource Management and Planning Appeals Tribunal Act 1993 (the latter being a reference to appeals to the Supreme Court from decisions of the Tribunal), it is clear from the nature of the relief sought that the application is confined to an application under the Judicial Review Act, s 17.
The Judicial Review Act 2000, s 38 is as follows:
"38 Power of Court to stay or dismiss applications in certain circumstances
(1) The Court may stay or dismiss an application under section 17, 18 or 19 or a claim for relief in such an application if the Court considers that –
(a) it would be inappropriate –
(i)for proceedings relating to the application or claim to be continued; or
(ii)to grant the application or claim; or
(b)no reasonable basis for the application or claim is disclosed; or
(c)the application or claim is frivolous or vexatious; or
(d)the application or claim is an abuse of the process of the Court.
(2) A power of the Court under this section –
(a)must be exercised by order; and
(b)may be exercised at any time in the relevant proceeding but, in the case of a power to dismiss an application, the Court must try to ensure that any exercise of the power occurs at the earliest appropriate time.
(3) The Court may make an order under this section –
(a)of its own motion; or
(b)on an application by a party to the proceeding.
(4) The Court may receive evidence on the hearing of an application for an order under this section.
(5) An appeal may be brought from an order under this section only with the leave of the Court.
(6) An appeal from an order of the Court under this Part is to be to the Full Court of the Supreme Court."
The Clarence City Council has filed an interlocutory application seeking certain orders including an order dismissing the originating application.
The grounds upon which Mr Howlin seeks an order of review are set out in the originating application. I need not refer to them other than to note that no ground upon which it might have been determined that Marsh Street provided permanent legal access between the proposed lots and the public road network is put forward and no complaint is made about the Tribunal's refusal to amend the proposals to include Marsh Street.
Because there is a binding determination between Mr Howlin and the planning authority that Marsh Street is not a public road and because Marsh Street needed to be a public road, or at least provide permanent legal access between the proposed lots and the public road network, for any of the subdivision proposals to be capable of approval and capable of being brought into effect, a review cannot lead to Mr Howlin being able to subdivide his land in the manner proposed in any of his three subdivision applications.
The originating application serves no purpose and so is to be characterised as frivolous or vexatious or an abuse of process.
The originating application is dismissed.