Luencris Pty Ltd v Resource Planning and Development Commission
[2007] TASSC 46
•21 June 2007
[2007] TASSC 46
CITATION:Luencris Pty Ltd v Resource Planning and Development Commission [2007] TASSC 46
PARTIES: LUENCRIS PTY LTD
v
RESOURCE PLANNING AND DEVELOPMENT
COMMISSION
THE HONOURABLE STEVEN KONS
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M244/2006
DELIVERED ON: 21 June 2007
DELIVERED AT: Hobart
HEARING DATE: 23 April 2007
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Unreasonableness – Whether irrelevant considerations taken into account – Whether relevant considerations not taken into account.
Judicial Review Act2000 (Tas), s17(2).
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied.
Aust Dig Administrative Law [1034-1035]
Environment and Planning – Environmental planning – Development control – Control of particular matters – Foreshore and coastal development – Tasmanian State Coastal Policy 1996 - "Ribbon development".
Attorney-General (Tas) v Cameron [2007] TASSC 22, applied.
St Helen's Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15, referred to.
Aust Dig Environment and Planning [150]
REPRESENTATION:
Counsel:
Applicant: C R Hanson
Attorney-General: P Turner
Solicitors:
Applicant: C R Hanson
Attorney-General: Director of Public Prosecutions
Judgment Number: [2007] TASSC 46
Number of paragraphs: 24
Serial No 46/2007
File No M244/2006
LUENCRIS PTY LTD v RESOURCE PLANNING AND DEVELOPMENT COMMISSION and THE HONOURABLE STEVEN KONS
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD CJ
21 June 2007
Introduction
This application for judicial review concerns a narrow strip of land next to Turners Beach at Saltwater River on the Tasman Peninsula. It is owned by the applicant. The land has an area of approximately two hectares and a 500 metre frontage onto Coal Mine Road. The opposite side adjoins a 30 metre Crown reservation along the shore of Norfolk Bay. The average width of the land is about 40 metres. It is in the Coastal Protection Zone of the Tasman Planning Scheme 1999 ("the scheme"). Subdivision is permitted, but only into lots with a minimum area of 40 acres.
The applicant wants to subdivide part of its land and in order to do so, requested the Tasman Council ("the council") to initiate an amendment to the scheme to rezone the land "Coastal Village Zone". In this zone, subdivision into allotments with a minimum area of 800 square metres is permitted.
In accordance with the Land Use Planning and Approvals Act 1993 ("LUPA"), ss33 and 43A, the applicant requested the council to make the amendment and to grant a permit for the subdivision of the northern end of its land into four lots, each of 1,000 square metres, leaving a balance of 1.64 hectares. The council agreed to both requests, but the respondent took a contrary view and the applicant now seeks a review of the respondent's decision.
The process
The applicant's request for an amendment and permit has had a chequered history. On 1 July 2005, the applications were made to the council. On 15 August 2005, the council agreed to initiate an amendment to the scheme and conditionally approved the permit. There followed certification of the amendment, public exhibition, receipt of representations, and the council's report to the respondent, all in accordance with LUPA, ss35 to 40. The respondent held the prescribed public hearing on 27 February 2006, but it was then discovered that there was a substantial variance between what council had resolved to do on 15 August 2005 and the draft amendment that was certified. The process had to be restarted with certification, public exhibition, and so on. The public hearing by the respondent did not resume until 9 June 2006. Mr Hanson, counsel for the applicant on this proceeding, appeared with his wife for the applicant in the Commission. Four representors also appeared, as did the council's planning officer. On 29 June 2006, the respondent rejected the draft amendment to the scheme and refused the applicant's permit.
The application for a review
The first ground upon which a review is sought alleges that the respondent erred by taking into account four irrelevant considerations, and by failing to take into account a relevant consideration. This ground also alleged error by failing to take into account two other relevant matters and by "giving undue weight" to a matter, but these allegations were abandoned at the hearing. The second ground for review asserts that error of law attended the respondent's interpretation of "ribbon development" as set out in the State Coastal Policy 1996 ("the policy").
Ground 1
As mentioned earlier, a permit was sought to subdivide the northern tip of the applicant's land into four lots, each of 1,000 square metres. The land adjoining the northern end of this proposed subdivision is zoned "Village Infill". In 1975, this land was subdivided into seven linear lots, all fronting onto Coal Mine Road. Accordingly, if the scheme is amended as the applicant requested, and the permit granted, the seven linear allotments on Coal Mine Road would increase to eleven linear allotments on Coal Mine Road. On the northern side of the seven linear allotments zoned Village Infill is the settlement of some 66 lots on Turners Point on land zoned "Closed Residential".
The policy is binding on the council and a relevant consideration for the respondent. Counsel did not contend to the contrary. See St Helen's Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15. The applicant's land is in the Coastal Zone as defined by the policy. The policy, cls 2.4.2 and 2.4.3, provides:
"2.4.2.Urban and residential development in the coastal zone will be based on existing towns and townships. Compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast.
2.4.3.Any urban and residential development in the coastal zone, future and existing, will be identified through designation of areas in planning schemes consistent with the objectives, principles and outcomes of this Policy."
In essence, the case in the Commission was all about whether the proposed amendment offended these clauses in the policy. Of course, it is not for this Court to inquire into that question. This Court's task is confined to determining whether the Commission erred within the meaning of the Judicial Review Act 2000, s17(2).
Pursuant to ground 1 of the application to review, it was firstly submitted that the respondent took into account the application for a permit when considering the draft amendment and in so doing, took into account an irrelevant consideration. The submission was that LUPA, s43C(3), impliedly prohibited the respondent from taking into account a contemporaneous application for a permit when considering a draft amendment to the scheme. There is no substance in this submission. The subsection provides:
"(3) The decision of a planning authority on an application referred to in section 43A or subsection (2) is to be made by reference to the provisions of the planning scheme or special planning order as in force at the date of its decision, as if the planning scheme or special planning order had been amended in accordance with the draft amendment which has been initiated by the planning authority in response to a request under section 43A."
LUPA, s43A(2), provides that a council may consider a contemporaneous application for a permit "concurrently with the preparation of the requested amendment to the planning scheme". Section 43C(3) requires a council to make the permit decision "as if" (not after) the planning scheme had been amended in accordance with the draft. LUPA, s43H(1), requires the respondent to make a decision about a contemporaneous permit application "at the same time as [it] makes its decision to reject or approve the draft amendment." Finally, common sense requires both a council and the respondent to see to what use a land owner who requests a council to initiate an amendment proposes to put to his or her land if the amendment is made.
Secondly it was submitted in support of ground 1 that the respondent took into account the following irrelevant considerations:
"ii)Speculative potential density of coastal village zoning, without consideration of controls upon such density;
iii)Speculative amendment to the Planning Scheme for the lot to the South of the Property;"
These grounds rely upon two passages in the respondent's reasons for decision. The first appears at page 5 and refers to the policy, cl 2.4.2:
"Moving to clause 2.4.2 it is reasonable to assume that, for the purposes of the Policy, Turners Point is a compact and contained township. Therefore to avoid ribbon development is relevant to the draft amendment. In this assessment it is appropriate to determine whether development to the potential density or somewhere approaching the potential density expected of coastal village zoning would constitute ribbon development."
The second passage refers to the scheme, cl 8.2.2, which permits subdivision in the Coastal Village Zone with a minimum area of 800 square metres:
"The site is long and narrow and there is little alternative for subdivision to provide blocks other than in a ribbon along Coal Mine Road and effectively along the coast. In addition, were the site to be zoned coastal village, as a planning assessment it is appropriate to take account of the cumulative situation. The cumulative situation would comprise the ribbon development to the north of the site in the form of seven existing lots together with the precedent that coastal village zoning would create for the similar shaped block to the south. The assessment is that residential subdivision afforded by coastal village zoning for the site would constitute ribbon development that is avoidable."
The submission was that although subdivision into lots of a minimum size of 800 square metres was a permitted use, the scheme gave the council a discretionary power to impose a permit condition on a subdivision in the Coastal Village Zone requiring a minimum lot size of more than 800 square metres. It was submitted that the respondent assumed that future subdivision would be allowed on the basis of the minimum lot size and ignored, or overlooked, the power to increase that minimum size, thereby taking into account an irrelevant consideration. The submission was also that the respondent took into account the situation of the land to the south of the applicant's block, and this, too, was an irrelevant consideration. In summary it was put that in these two respects the respondent only considered the "worst case scenario" and in so doing took into account two irrelevant matters.
This submission overlooks the nature of judicial review. As I have already observed, judicial review is not a merits review. There is nothing in LUPA, the policy or the scheme which forbids the respondent considering the matters to which objection is taken, even if they can properly be described as "a worst case scenario". The law with respect to this proposition is made clear by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 40:
"What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act."
Thirdly, in support of ground 1, it was contended that the respondent erred by taking into account the irrelevant consideration:
"The existing lots to the North of the Property, when characterised as 'ribbon development'."
However, although the contention was advanced, counsel for the applicant conceded that this part of ground 1 was better expressed in ground 2 of the application, and did not present argument to support it as part of ground 1.
Finally, ground 1 asserted error in that the respondent did not take into account:
"Goals 2 and 3 of the Tasman Planning Scheme 1979, in circumstances where consideration was given to the Objectives of Goal 1 to the Scheme."
The scheme, Schedule 1, sets out a number of goals. Underneath each is a list of objectives to achieve each goal. Goal 1 provides:
"To protect and enhance areas of historic and scenic importance, in order to maintain and improve the quality and character of the natural and built environment of the Peninsula."
There follows a list of objectives, all expressed in general terms. Goal 2 provides:
"To develop the economic potential of the Tasman Peninsula to the extent that this development is consistent with other generally accepted goals"
Goal 3 provides:
"To improve the standard of services and facilities for the use of residents and visitors."
A number of generally expressed objectives are also set out underneath Goals 2 and 3. The Commission expressly referred to, and discussed, five of the ten objectives set out under Goal 1. No reference was made to Goals 2 and 3 or the objectives set out under each. The Goals are described as "general statements of purpose from which a number of more precise objectives are developed." Counsel for the applicant submitted that the amendment to the scheme and the granting of the permit would develop the economic potential of the Tasman Peninsular as provided in Goal 2, and by the provision of land for buildings, improve the services and facilities for the use of residents and visitors as provided in Goal 3. It is true that an omission to refer to a matter may lead to an inference that a tribunal did not consider that matter to be relevant. See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. However, that is not always the case. It depends on all the circumstances. See Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685 at 691. Assuming, but not deciding, that the respondent's failure to refer to Goals 2 and 3 leads to an inference that it did not consider them to be relevant, this would not reflect legal error. The Schedule explains that the goals and the objectives reflect a consensus that was reached at public meetings, of the potential development of the area to be covered by the scheme in order to guide the work of the framers of the scheme. The Schedule states that the goals and objectives are not listed in any particular order of priority for the planning study and further states "[I]t is likely that various interest groups would govern different priority to these goals." A reading of the objectives set out under Goals 2 and 3 clearly show that neither goal was relevant to the issues before the respondent. For example, the objectives of Goal 2 refer to "improve rural incomes …", "to increase tourist expenditure …", and "to expand and diversify tourist activities …". Objectives of Goal 3 include "to achieve an adequate standard of medical and hospital services …", "to maintain an adequate standard of welfare services …" and to provide an adequate standard of emergency services …". Ground 1 is not made out.
Ground 2 alleges that the respondent erred in law in its construction of the expression "ribbon development" in the policy and the scheme. An objective of Goal 1 is to "discourage sporadic, scattered or ribbon development throughout the Peninsula." In its reasons the Commission referred to the expression "ribbon development" as it appears in the policy and as it appears in an objective of Goal 1. There is no definition of "ribbon development" in either the policy or the scheme. With respect to the law relevant to this ground, I set out the following passage at par71 in the judgment of Blow J in Attorney-General (Tas) v Cameron [2007] TASSC 22:
"The appellant contends that it was reasonably open to the delegates to find that the proposed development fell within the description 'urban and residential development' in cl 2.4.2. When a question arises as to whether a thing falls within the description of a word or a phrase in a statute, a question of law arises if, on the facts found, only one conclusion is open. If different conclusions are reasonably possible, the determination of the correct conclusion involves only a question of fact: The Australian Gas Light Co v The Valuer-General (1940) 40 SR(NSW) 126; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547; Hope v Bathurst City Council (1980)144 CLR 1; Vetter v Lake Macquarie City Council (2001)202 CLR 439; Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354. Whether or not cl 2.4.2 is a legislative provision, the delegates cannot have erred in law if two possible conclusions were reasonably open to them as to whether the proposed development fell within the description 'urban and residential development'."
Counsel for the applicant submitted that the definition of development in the policy meant that it was confined to work in the future. Thus it was submitted the seven linear allotments to the north of the applicant's land could not be described as ribbon development. The definition is not exhaustive and states that development includes the following:
"a)the construction, exterior alteration or exterior decoration of a building; and
b)the demolition or removal of a building or works; and
c)the construction or carrying out of works; and
d)the subdivision and consolidation of land, including buildings or airspace; and
e)the placing or relocation of a building or works on land; and
f)the construction or putting up for display of signs or hoardings."
I agree with the observation of Blow J in Attorney-General (Tas) v Cameron at par85 that there is no precise and universally accepted definition of ribbon development and his conclusion that, "[w]here different views are possible as to whether a particular development constitutes 'ribbon development' within the meaning of cl 2.4.2, no question of law arises." Obviously, the whole of the policy is concerned with future development, but that does not mean that the existing seven linear allotments to the north of the applicant's land cannot be described as a ribbon development in the sense that at the time that land was subdivided it was ribbon development. Clearly, the addition of four more allotments, next to the seven that are already there, as proposed by the applicant, could be regarded as ribbon development. The whole of the applicant's narrow strip of land fronts onto Coal Mine Road. If the requested amendment is made, a permitted conditional use of the whole of the land would be subdivision into allotments, each with a frontage onto that road, and each having a minimum size of 800 square metres. The respondent, quite rightly, looked at the seven allotments to the north of the applicant's land and the adjoining township of Turners Point to the north of them, and, in effect, said that if the proposed amendment is made, subdivision of the land into a number of allotments in a strip along Coal Mine Road will become a permitted use and this would constitute ribbon development, a state of affairs that the policy says should be avoided in a coastal zone, and which the scheme says should be discouraged throughout the Peninsular. This was a view that was reasonably open to the respondent and there was no error of law as alleged in ground 2 of the application for a review.
The application is dismissed.
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