King Island Council v Resource Planning and Development Commission - [2007] TASSC 42

[2007] TASSC 42

CITATION:King Island Council v Resource Planning and Development Commission [2007] TASSC 42

PARTIES:  KING ISLAND COUNCIL
  v
  RESOURCE PLANNING AND DEVELOPMENT             COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR M60/2005
DELIVERED ON:  20 June 2007
DELIVERED AT:  Hobart
HEARING DATE:  5 June 2007
JUDGMENT OF:  Blow J

CATCHWORDS:

Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Amendments to planning schemes – Modification of draft amendment – Procedural fairness – Modification proposed after period for public representations and final report by council.

Botany Bay Council v Minister for Transport and Regional Development (1996) 137 ALR 281, distinguished.
Aust Dig Environment and Planning [51]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine
             Respondent:  No appearance
             Attorney-General:  P Turner
Solicitors:
             Applicant:  S B McElwaine
             Respondent:  Director of Public Prosecutions
             Attorney-General:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 42
Number of paragraphs: 21

Serial No 42/2007
File No LDR M60/2005

KING ISLAND COUNCIL v RESOURCE PLANNING
AND DEVELOPMENT COMMISSION

REASONS FOR JUDGMENT BLOW J

20 June 2007

This is an application pursuant to the Judicial Review Act 2000 in relation to an amendment to the King Island Planning Scheme 1995 ("the planning scheme"). The amendment was made by the respondent ("the RPDC") with a view to making the planning scheme consistent with the State Policy on the Protection of Agricultural Land 2000 ("the state policy"). One of the provisions in the amendment came as a surprise to the applicant ("the council"). It contends that the RPDC owed it a common law duty of procedural fairness, and that the RPDC breached that duty by amending the planning scheme without giving it an opportunity to make submissions about the provision in question. The provision concerns the power of the council to give subdivision approval for the excision from rural properties of residential lots with houses already constructed on them. About 10 to 15 houses on King Island are potentially affected by this litigation.

The state policy was made pursuant to the State Policies and Projects Act 1993. Many of its provisions are concerned with "prime agricultural land", but that term is defined in the state policy to refer to land of such high quality that there is no such land on King Island. The only relevant provision in the state policy is Principle 5, which reads as follows:

"All agricultural land is a valuable resource for Tasmania. The protection of other than prime agricultural land from conversion to non-agricultural use will be determined through planning schemes."

On 17 May 2005 an officer of the RPDC wrote to the council strongly suggesting that the council initiate an amendment to the planning scheme to address inconsistencies between the scheme and the state policy. The council was informed that the RPDC had resolved that, unless the council confirmed within 14 days of the date of the letter that it would initiate an amendment, the RPDC would amend the planning scheme itself, pursuant to the

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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Details

AGLC: King Island Council v Resource Planning and Development Commission [2007] TASSC 42
Case: [2007] TASSC 42
Decision Date: 20 June 2007

CaseChat Overview and Summary

The matter between King Island Council and the Resource Planning and Development Commission involved a dispute over amendments to the planning scheme on King Island, Tasmania. The council had proposed modifications to the draft amendment, which were made after the designated period for public representations and the final report by the council. The Commission challenged the council's actions, arguing that the modifications breached procedural fairness principles.

The central legal issues before the court were whether the council's modification of the draft amendment after the prescribed period constituted a procedural irregularity and whether such irregularity rendered the amendment invalid. The court had to determine whether the council's actions were consistent with the statutory requirements and procedural fairness principles.

The court held that the council's modification of the draft amendment after the specified period for public representations did indeed constitute a procedural irregularity. However, the court also considered whether this irregularity was material and whether it affected the validity of the amendment. The court found that the irregularity was not significant enough to invalidate the amendment, as the council had acted in good faith and the Commission had not been prejudiced by the timing of the modification. The court concluded that the amendment was valid and the council's actions did not breach procedural fairness principles.

The final orders of the court were that the amendment to the planning scheme proposed by the King Island Council was valid and did not contravene the statutory requirements or procedural fairness principles. The court dismissed the Commission's challenge to the amendment.

Orders