PARTIES: JACKSON, Athol Charles JACKSON, Maureen Faye v PURTON, Mark PURTON, Judith WARATAH-WYNYARD COUNCIL
FILE NO/S: 164/2010 and 732/2010 JUDGMENTS
APPEALED FROM: MA and JM Purton v A and M Jackson [2010] TASRMPAT 20
M and J Purton v Waratah-Wynyard Council and A and M Jackson [2009] TASRMPAT 33
DELIVERED ON: 10 June 2011 DELIVERED AT: Launceston HEARING DATE: 28 September 2010 JUDGMENT OF: Wood J
CATCHWORDS:
Administrative Law – Appeals from administrative tribunals - Statutory appeals from administrative authorities to courts - Meaning of "decision" of tribunal – Whether determination as to jurisdiction an appealable decision - Whether undesirable to fragment proceedings.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s25(1).
Environment and Planning – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Power of tribunal to reconsider its decision involving jurisdictional error – Whether tribunal functus officio - Whether power to reconsider can be inferred from the statutory scheme.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss16, 23 and 25.
Environment and Planning – Courts and tribunals with environment jurisdiction - Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Whether enforcement orders valid – Whether orders wider than necessary to address contravention.
Counsel: First and Second Appellants: B R McTaggart First and Second Respondents: K J Stanton Third Respondent: S B McElwaine Solicitors: First and Second Appellants: S G Wright First and Second Respondents: Crisp, Hudson & Mann Third Respondent: Shaun McElwaine & Associates
Judgment Number: [2011] TASSC 28 Number of paragraphs: 157
Serial No 28/2011 File Nos 164/2010, 732/2010
ATHOL CHARLES JACKSON, MAUREEN FAYE JACKSON v MARK PURTON, JUDITH PURTON and WARATAH-WYNYARD COUNCIL
REASONS FOR JUDGMENT WOOD J
10 June 2011
There are two appeals to this Court from determinations made by the Resource Management Planning Appeal Tribunal ("the Tribunal"). Both appeals are instituted by Mr and Mrs Jackson and concern their land at 301 Pages Road, Moorleah. On the land Mr and Mrs Jackson have a farm shed and a caravan. The terms of the planning permit for the shed mean that they cannot use it for residential purposes. Their neighbours, Mr and Mrs Purton, operate a…
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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AGLC
Jackson v Purton [2011] TASSC 28
Case
[2011] TASSC 28
Decision Date
CaseChat Overview and Summary
In the matter of Jackson v Purton, the plaintiff sought an appeal against a decision made by the Tribunal, which was a body with jurisdiction to hear appeals concerning certain statutory provisions. The nature of the dispute involved the interpretation of the legal framework governing administrative appeals and the scope of the Tribunal's authority in relation to jurisdictional determinations and restraining orders. The case was heard in the Supreme Court.
The court was required to decide several key legal issues. Primarily, it needed to determine whether a determination by the Tribunal regarding its own jurisdiction constituted a "decision" for the purposes of an appeal under the applicable legislation. Additionally, the court had to consider whether it would be undesirable to fragment the proceedings by allowing such appeals. Another point of contention was the extent of the Tribunal's authority in making restraining orders under the relevant statute.
In its reasoning, the court held that a jurisdictional determination by the Tribunal indeed constituted a "decision" that could be the subject of an appeal. The court found that fragmenting the proceedings by allowing appeals on such jurisdictional matters was not undesirable, as it could ensure proper adherence to legal principles and statutory requirements. Regarding the restraining orders, the court concluded that the Tribunal had exceeded its authority under the relevant statute and thus, the orders were set aside. The court was meticulous in its analysis, ensuring that the legal principles were applied correctly and the statutory provisions were interpreted in a manner consistent with legislative intent.
The court's final orders included setting aside the Tribunal's decision made on 23 August 2010 and dismissing certain grounds of appeal. Additionally, the court upheld a new ground of appeal concerning the ambit of the restraining orders and set those orders aside. The court directed that further submissions be made regarding the terms of the substituted orders to be issued.
Orders
Orders of the court
Appeal 732: The appeal is upheld. The Tribunal's decision made on 23 August 2010 is set aside.
Appeal 164: I dismiss the abandoned grounds of appeal, 1 and 3. Ground 2 is dismissed for the reasons I have set out above.The new ground of appeal (set out at par[113]) regarding the ambit of the restraining orders made by the Tribunal pursuant to the LUPA Act, s64, is upheld. The orders are set aside. As indicated, I will hear from counsel as to the terms of the substituted orders to be made.