Administrative Law – Judicial review – Reviewable decisions and conduct – Grounds of review – Error of law – Grant of building permit – Building Appeal Board not to grant permit if not satisfied of specified matters – Specified matters included whether planning permit required and had been granted – Question of whether permit validly granted by council – Whether Board failed to exercise its jurisdiction by not deciding the question for itself – Whether Board erred as to finding that legally open for council to grant permit.

Building Act 2000 (Tas), ss71 and 73.
Building Regulations 2004 (Tas), reg18(1)(b).
R v Resource Management andPlanning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc (2000) 107 LGERA 196, applied.
Aust Dig Administrative Law [1030]

Environment and Planning – Development control – Classification of uses – Generally – Primary and secondary use classes – Use acknowledged in development application as secondary use – Development did not comply with standards for secondary use – Ambiguity in application – Open to treat use as ancillary to primary use – Whether planning authority bound to assess application on secondary use basis.

City of Springvale v Heda Nominees Pty Ltd (1982) LGRA 298; Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157; Kain v Glamorgan Spring Bay Council (1996) 90 LGERA 326, applied.
Aust Dig Environment and Planning [127]

REPRESENTATION:

Counsel:
             Applicants:  B R McTaggart
             First Respondent:  (Submitted to jurisdiction)
             Second Respondent:  S B McElwaine
             Third & Fourth Respondents:      K J Stanton
Solicitors:
             Applicants:  Stephen G Wright
             First Respondent:  Director of Public Prosecutions
             Second Respondent:  Sean McElwaine & Associates
             Third & Fourth Respondents:      Crisp Hudson & Mann

Judgment Number: [2010] TASSC 29
Number of paragraphs: 68

Serial No 29/2010
File No 747/2009

ATHOL CHARLES JACKSON and MAUREEN FAYE JACKSON
v BUILDING APPEAL BOARD, WARRATAH-WYNYARD COUNCIL,
MARK PURTON and JUDITH PURTON

REASONS FOR JUDGMENT PORTER J

25 June 2010

Introduction

This is an application under the Judicial Review Act 2000, for review of a decision of the Building Appeal Board ("the Board"). (On this occasion the Board was constituted by a single member being the chairperson, but for the sake of convenience I will continue to refer to the Board as such.) The effect of the Board's decision was to refuse to the applicants a building permit under the Building Act 2000.

The applicants live at Crayfish Creek in north-western Tasmania. They also own land some distance away at Moorleah on which they carry out animal farming and orcharding. They want to build a residence on the Moorleah property…

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 Jackson v Building Appeal Board

Details

AGLC: Jackson v Building Appeal Board [2010] TASSC 29
Case: [2010] TASSC 29
Decision Date: 25 June 2010

CaseChat Overview and Summary

The case of Jackson v Building Appeal Board involves a dispute regarding the granting of a building permit. The plaintiff, Jackson, sought judicial review of a decision by the Building Appeal Board (the Board) to refuse to grant a building permit. The nature of the dispute centres on the Board's interpretation of its jurisdiction and whether it erred in its assessment of the legality of the council's decision to grant the permit.

The primary legal issue the court needed to address was whether the Board failed to exercise its jurisdiction by not deciding for itself whether the planning permit was required and had been validly granted by the council. Additionally, the court had to determine if the Board erred in concluding that it was legally permissible for the council to grant the permit. These issues required the court to delve into the statutory framework governing the Board's powers and the extent of its discretion in reviewing council decisions.

In reaching its decision, the court examined the statutory provisions that outline the Board's role and the specific matters it must consider when deciding whether to grant a building permit. The court found that the Board had indeed failed to exercise its jurisdiction by deferring to the council's decision without independently assessing the specified matters. Furthermore, the court held that the Board erred in its finding that it was legally open for the council to grant the permit, as it did not properly consider the relevant statutory requirements.

The court's findings led to the conclusion that the Board's decision was reviewable and that it had erred in law. Consequently, the orders included quashing the Board's decision and directing the Board to reconsider the application in light of the court's findings.

Orders