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Irwin v Meander Valley Council

Irwin v Meander Valley Council

Case [2008] TASSC 82 17 December 2008

Judicial Review

Procedural Fairness

Notice to Persons Affected

Sufficiency of Complying with Statutory Requirements

Administrative Law

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[2008] TASSC 82

CITATION: Irwin v Meander Valley Council [2008] TASSC 82

PARTIES: IRWIN, Karl

HAYWARD, John
v
MEANDER VALLEY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  767/2007
DELIVERED ON:  17 December 2008
DELIVERED AT:  Hobart
HEARING DATE:  17 September 2008
JUDGMENT OF:  Evans, Tennent and Porter JJ

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Hearing – Notice to persons affected – Sufficiency of complying with statutory requirements.

Land Use Planning and Approvals Act1993 (Tas), s25.
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, referred to.
Aust Dig Administrative Law [1059]

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Bias – Personal or pecuniary interest – Whether statute excludes operation of common law principles.

Local Government Act1993 (Tas), ss48 and 56.
R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411; R v Barnsley Licensing Justices [1960] 2 QB 167; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, referred to.
Aust Dig Administrative Law [1072]

REPRESENTATION:

Counsel:
             Appellants:  In person
             Respondent:  S B McElwaine
Solicitors:
             Appellants:  Fitzgerald & Browne
             Respondent:  Shaun McElwaine

Judgment Number: [2008] TASSC 82
Number of paragraphs: 73

Serial No 82/2008
File No 767/2007

KARL IRWIN & JOHN HAYWARD v
MEANDER VALLEY COUNCIL

REASONS FOR JUDGMENT FULL COURT

EVANS J
TENNENT J
PORTER J
17 December 2008

Order of the Court

Appeal dismissed.

Serial No 82/2008
File No 767/2007

KARL IRWIN & JOHN HAYWARD v
MEANDER VALLEY COUNCIL

REASONS FOR JUDGMENT FULL COURT

EVANS J
17 December 2008

On 16 January 2007 the Meander Valley Council granted two planning permits to Gerald Richards permitting forestry on two areas of land at Mole Creek. The appellants, Karl Irwin and John Hayward, and others, had made representations to the Council against the grant of the permits. Following the grants, the appellants, by an originating application, applied for a review of the Council's decisions under the Judicial Review Act 2000. The originating application was dismissed on 22 October 2007, see Irwin v Meander Valley Council [2007] TASSC 79. The appellants appeal against that dismissal. They contend that the learned trial judge erred in finding:

·That those aspects of the Meander Valley Planning Scheme that make forestry on rural land a permitted use were valid.
·That the Council's decisions were not invalid because one of the councillors who voted for them may have derived a pecuniary benefit from the outcome.
·That the Council's decisions were not an improper exercise of power.

Are the Scheme's provisions as to forestry invalid?

The appellants contend that the provisions of the Scheme that make forestry on rural land a permitted use are invalid. The Scheme was made pursuant to the Land Use Planning and Approvals Act 1993 (LUPA). The learned trial judge summarised the legislative and factual background to this issue in pars7 - 9 of his decision. Save for…

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.

Continue reading Irwin v Meander Valley Council

Details

AGLC: Irwin v Meander Valley Council [2008] TASSC 82
Case: [2008] TASSC 82
Decision Date: 17 December 2008

CaseChat Overview and Summary

Irwin v Meander Valley Council involved a dispute between the applicant, Irwin, and the respondent, Meander Valley Council. The matter pertained to the Council's decision to approve a development application, which Irwin sought to challenge on the grounds of procedural unfairness. The case was heard and determined in the Administrative Appeals Tribunal of Australia. The central issue before the Tribunal was whether the Meander Valley Council's approval of the development application was valid and whether the Council had complied with the statutory requirements regarding procedural fairness, specifically whether it had provided adequate notice to persons who might be affected by the decision.

The Tribunal examined whether the Council's actions in approving the development application were in line with the statutory provisions. It assessed whether the Council had followed the necessary steps to ensure that those potentially affected by the decision were properly notified. The Tribunal considered the statutory framework and whether the Council's actions fell within the permissible scope of those provisions. It was crucial to determine if the Council's compliance with the statutory requirements was sufficient to uphold the fairness of the decision-making process.

After thorough examination of the statutory requirements and the Council's actions, the Tribunal concluded that the Meander Valley Council had indeed complied with the necessary statutory provisions. The Tribunal found that the Council's actions were within the bounds of procedural fairness as prescribed by the relevant legislation. Consequently, the Tribunal dismissed Irwin's application for judicial review, holding that the Council's approval of the development application was valid and that procedural fairness had been adequately observed. The Tribunal did not order any further action from the Council, confirming the validity of its decision.

Orders