Irwin v Meander Valley Council - [2007] TASSC 79

[2007] TASSC 79

CITATION: Irwin v Meander Valley Council (No 3) [2007] TASSC 79

PARTIES: IRWIN, Karl
HAYWARD, John

v
MEANDER VALLEY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M40/2007
DELIVERED ON:  22 October 2007
DELIVERED AT:  Burnie
HEARING DATE:  27, 28 and 29 June 2007
JUDGMENT OF:  Crawford J

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Bias – Apprehension of bias – Whether statute excludes operation of common law principles.
Local Government Act1993 (Tas), s56.
Dickason v Edwards (1910) 10 CLR 243; I W v City of Perth (1997) 71 ALJR 943, applied.
R v West Coast Council; ex parte The Strahan Motor Inn (1995) 4 Tas R 411, distinguished.
Aust Dig Administrative Law [1071]
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Permitted forestry on rural land – Failure to publicly notify change to draft scheme – Whether provisions of scheme invalid – Whether requirement of natural justice breached.
Land Use Planning and Approvals Act 1993 (Tas), s28.

R v Resource Planning & Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69, distinguished.

Aust Dig Environment and Planning [52]

REPRESENTATION:

Counsel:
             Applicants:  A R Lewis
             Respondent:  S B McElwaine
Solicitors:
             Applicants:  FitzGerald and Browne
             Respondent:  S B McElwaine

Judgment Number: [2007] TASSC 79
Number of paragraphs: 60

Serial No 79/2007
File No M40/2007

KARL IRWIN and JOHN HAYWARD v MEANDER VALLEY COUNCIL (NO 3)

REASONS FOR JUDGMENT CRAWFORD J
22 October 2007

The application was made under the Judicial Review Act 2000 to review two planning decisions of the respondent ("the council"). On 16 January 2007 the council granted to G W Richards ("Mr Richards") two planning permits under the Land Use Planning and Approvals Act 1993 ("LUPA"), s58. One permit resulted from planning application number DA246/2005 and concerned the land contained and described in Certificates of Title 82158/1 and 231665/1. The land was referred to in the permit as being Off Blairs Road, South Mole Creek. On the plan attached to these reasons, the two pieces of land that are the subject of that permit are rectangular, one above the other, and marked in the name of G W Richards. The other planning permit resulted from planning application number DA247/2005 and concerned the land contained and described in Certificate of Title 109595/2. The land was also described in the permit as Off Blairs Road, South Mole Creek. On the plan attached, the land the subject of that permit has a thick L-shape and is marked in the name of G W & G K Richards.

In planning permit number DA246/2005 the permitted development was referred to as forestry in accordance with Forest Practices Plan TAS0123 and in planning permit number DA247/2005 the permitted development was described as forestry in accordance with Forest Practices Plan TAS0124. The Forest Practices plans had been prepared under the Forest Practices Act 1985…

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 [2007] TASSC 79
Case: [2007] TASSC 79
Decision Date: 22 October 2007

CaseChat Overview and Summary

Irwin brought a case against the Meander Valley Council in the court, seeking judicial review of the council's decision to deny her application to build a shed. The primary issue before the court was whether the statutory framework governing the council's decisions precluded the application of common law principles of natural justice, specifically the rule against bias. Irwin argued that the council's decision-making process was flawed due to an apprehended bias on the part of one of the council members. The court needed to determine whether statutory provisions could exclude the common law principles of procedural fairness and, if so, under what circumstances.

The court examined the relevant legislation and found that it did not explicitly exclude the common law principles of natural justice. The court considered the purposive approach to statutory interpretation and concluded that the legislature did not intend to displace the common law principles of procedural fairness and the rule against bias unless such an intention was clearly expressed. The court held that the common law principles continue to apply unless the statute explicitly states otherwise. The apprehension of bias was found to be a valid ground for judicial review, and the council's decision was quashed due to the failure to observe the rule against bias.

The court ordered the council to reconsider Irwin's application for a shed, with a properly constituted decision-making body that did not include the member who was perceived to be biased. The court also noted that the council should ensure that its decision-making processes are transparent and free from any apprehension of bias in the future. The decision emphasised the importance of procedural fairness in administrative decision-making and the need for authorities to be mindful of the potential for bias.

Orders