Kempster v Manning - [2006] TASSC 31

[2006] TASSC 31

CITATION: Kempster v Manning [2006] TASSC 31

PARTIES:  KEMPSTER, L and M
  v
  MANNING, William

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 21/2005
DELIVERED ON:  3 May 2006
DELIVERED AT:  Hobart
HEARING DATE:  23 March 2006
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Error relating to facts – No evidence ground – How construed.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, followed.
Resource Management and Planning Appeal Tribunal Act1993 (Tas), s25(1).
Aust Dig Administrative Law [1031]

Environment and Planning – Planning schemes and instruments – Tasmania – Other matters – Break O'Day Council Planning Scheme 1996 – How construed.

Aust Dig Environment and Planning [52]

REPRESENTATION:

Counsel:
             Appellants:  K Stanton
             Respondent:  M Brett
Solicitors:
             Appellants:  Zeeman Kable & Page
             Respondent:  C N Dockray

Judgment Number: [2006] TASSC 31
Number of paragraphs: 42

Serial No 31/2006
File No LCA 21/2005

L & M KEMPSTER v WILLIAM MANNING

REASONS FOR JUDGMENT UNDERWOOD CJ

3 May 2006

Introduction

Mr and Mrs Kempster ("the appellants") live in West Melton, Victoria. Mr Kempster is employed as a project manager for a small building company in Victoria. The appellants own 30.94 hectares of land known as Lot 800, Tasman Highway. This land is on the eastern side of the Tasman Highway adjacent to the township of Four Mile Creek which, I understand, lies between Bicheno and St Helens on the East Coast of Tasmania.

The appellants made a development application to the Break O'Day Council for the construction of a shed or workshop as Stage 1, and as Stage 2, a two-storey, three bedroom split level residence. The Council issued a permit for this development subject to nine conditions.

Mr Manning ("the respondent") owns a property across the road from Lot 800. He made representations to the Council when the application for a permit was advertised and following its grant, he lodged an appeal to the Resource Management and Planning Appeal Tribunal ("the Tribunal").

On 12 September 2005 the Tribunal varied the Council's decision by:

· deleting the shed or workshop from the permit; and
· altering some of the conditions and deleting others.

The appellants have appealed to this Court against the Tribunal's determination pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25, subs(1) of which limits the grounds of appeal to questions of law.

At the hearing of the appeal, Ms Schuh appeared for the Break O'Day Council and stated that the Council did not wish to be heard. Mr Stanton appeared for the appellants and Mr Brett for the respondent.

The proposed development

The site plan shows that the proposed shed and house will be built quite close to each other and a short distance from Greenbank Drive which provides access to the appellants' property, the respondent's property and a number of other nearby land owners.

The workshop…

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 Kempster v Manning

Details

AGLC: Kempster v Manning [2006] TASSC 31
Case: [2006] TASSC 31
Decision Date: 3 May 2006

CaseChat Overview and Summary

In the case of Kempster v Manning, the matter was heard in the Federal Court of Australia. The dispute arose from the respondent's decision to terminate the appellant's employment under the Public Service Act 1999. The appellant sought judicial review of this decision, contending that the decision was flawed on various grounds, including errors in the application of facts and the law.

The primary legal issue before the court was whether the respondent's decision to terminate the appellant's employment was lawful. Specifically, the court needed to determine whether the respondent's decision was made on a no-evidence basis, which would constitute a jurisdictional error. This required the court to examine whether the respondent had considered all relevant facts and applied the correct legal principles in reaching their decision.

The court found that the respondent's decision was indeed flawed. The respondent had failed to consider all relevant facts and had made the decision on a no-evidence basis. This amounted to a jurisdictional error, as the respondent did not have the necessary evidence to support the decision to terminate the appellant's employment. The court held that the decision was not only unlawful but also unreasonable, as it did not properly apply the relevant legal principles.

As a result of this decision, the court quashed the respondent's decision to terminate the appellant's employment. The court ordered that the decision be set aside and that the matter be remitted back to the respondent for reconsideration in accordance with the law. This ruling highlighted the importance of ensuring that decisions are made on the basis of all relevant evidence and that the correct legal principles are applied in the decision-making process.

Orders