McDermott v the Commissioner for Town and Country Planning
[1988] TASSC 40
•22 August 1988
Serial No 30/1988
List “A”
CITATION:McDermott v The Commissioner for Town and Country Planning [1988] TASSC 40; A30/1988
PARTIES: McDERMOTT
v
COMMISSIONER FOR TOWN
AND COUNTRY PLANNING
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M81/1988
DELIVERED ON: 22 August 1988
JUDGMENT OF: Neasey J
Judgment Number: A30/1988
Number of paragraphs: 30
Serial No 30/1988
List "A"
File No M81/1988
McDERMOTT v THE COMMISSIONER
FOR TOWN AND COUNTRY PLANNING
REASONS FOR JUDGMENT NEASEY J
22 August 1988
This is the return of an Order Nisi directed to the Commissioner for Town and Country Planning to show cause why a general order in the nature of mandamus should not issue requiring the Commissioner to grant a Certificate of Consent, pursuant to s757(7) of the Local Government Act 1962, in respect of a proposal plan for a subdivision at Iron Creek near Sorell. This plan was lodged on behalf of the applicant Anthony McDermott with the Corporation of the Municipality of Sorell ("the Corporation") in or about June 1987.
The relevant facts are, that on a date uncertain before 1986, the Corporation resolved pursuant to s724 of the Local Government Act 1962 ("the Act") to prepare a planning scheme relating to land on the outskirts of Sorell, which included the applicant's land. In September 1986 the Corporation, pursuant to s734 of the Act, issued Interim Order No 1, which by its terms applied to lands delineated in a document issued in conjunction with the Interim Order and referred to therein, called Planning Document No 1, 1986.
The applicant owns 83.5 hectares of land south of Sorell, fronting on the western side of the Arthur Highway. Wishing to subdivide an area of about 27 hectares of this land into ten allotments, in sizes ranging between 2 and 3.8 hectares, the applicant prepared a plan for subdivision. This plan, by reason of the fact that the proposed subdivision required an internal road, came under the description of "building estate" in s462(1) of the Act. Under Interim Order No 1 issued by the Corporation, the applicant's property had been zoned as rural land, to which a minimum allotment size of 40 hectares applied under the Order. Accordingly, the applicant's plan for a building estate was not in accordance with the zoning of his land under the Interim Order. The applicant applied to the Corporation for a "dispensation" from that order, in accordance with s733B of the Act. By letter dated 4 June 1987, the Corporation granted him a dispensation. Thereupon, the applicant lodged with the Corporation pursuant to s464 of the Act an application for approval of his subdivision plan.
As it is required to do by s757(1) of the Act, the Corporation in due course referred to the Commissioner for Town and Country Planning for his consideration the applicant's application for approval of his proposed building estate. They recommended its approval. The application for approval of the proposal for a building estate came within the description, "proposal plan", for the purpose of s757. Section 757(7) and (8) of the Act provide:—
"(7) Where a proposal plan is referred to the commissioner under this section, he may—
(a)consent to the corporation's giving its approval to the plan, either without amendment or on its being amended in such a manner as he specifies; or
(b)refuse to give that consent,
and he shall return to the corporation one copy of the plan with his decision written on it or annexed to it.
(8) Without prejudice to the operation of subsection (9), the Commissioner shall exercise his powers under subsection (7) in such manner as he considers the principles of town planning require, but, without prejudice to the generality of the foregoing provisions of this subsection, the amendments to a proposal plan that he specifies under that subsection may be, or include, amendments that the corporation might require."
The Town and Country Planning Commissioner in due course declined to consent to the Corporation approving the applicant's plan. In his letter to the Corporation certifying his refusal, dated 21 January 1987, the Commissioner stated the following reasons:—
"The land at the time of the original advice on subdivision potential came under the provisions of the Rural Subdivision guidelines and the proposed subdivision does not comply with those guidelines.
It also does not comply with the planning document made effective by the Sorell Interim Order No 1 adopted by Council.
The provisions of an Interim Order in the course of preparation have no status and should not be used as the basis for the preparation of subdivision proposals.
The land subject to this subdivision proposal is of critical importance in the enjoyment of the major tourist route, the Arthur Highway, offering excellent water views to Seven Mile Beach across Pitt Water which would be seriously affected by the development of the area.
The Sorell Interim Order provides for numerous rural residential development opportunities in areas which do not impinge on the scenic value of the municipality. This approach is a responsible one which accommodates both the development needs and environmental value of the community.
I therefore consider that the refusal of this subdivision proposal is consistent with both the legal requirements of the consideration of subdivision and the long term interests of the community."
Later, the applicant submitted an amended proposal plan for subdivision of the land in question, but in due course the Commissioner again refused to approve. The present proceedings call in question the legality of the Commissioner's exercise of his powers under s757(7) and (8), on the following grounds:—
(1)He failed to take into account relevant matters.
(2)His determination was in all the circumstances unreasonable.
(3)It was not open to the Commissioner to reject the applicant's proposal as the applicant had obtained planning approval for the development of the subdivision from the Corporation of the Municipality of Sorell under Part XVIII of the Act.
It is convenient to deal first with the questions of law involved in the third ground. Basic to this ground are the two following submissions, namely that—
(i)s467(1)(f) and (g) do not apply "where subdivision is regulated by a sealed planning scheme or interim order"; and
(ii)the Commissioner's power under s757 is restricted where subdivision is regulated by a sealed planning scheme or interim order. The exercise of his power is subject to any planning decision made by the Corporation or the Planning Appeal Board under Part XVIII of the Act.
Despite the capable argument submitted on behalf of the applicant by Mr Holt, I am unable to accept these submissions.
Section 467(1) (f) and (g) are part of Division 2 of Part XVII of the Act. This Division deals with "Building estates and subdivisions". It contains, inter alia, an elaborate set of provisions requiring the owner of a building estate to make application to the relevant municipality for approval of the scheme of a building estate (under s464), on the one hand, and on the other for a person who wishes to subdivide land to make application to the municipality for approval of his plan of subdivision (s.469). I have already explained that a "building estate" under the Act (s.462) differs from other subdivision plans by reason of the fact that it requires in the course of its development an internal road to be opened.
Section 467 (1), in relation to building estates, provides, inter alia, subject to Part XVIII and to s465, that the Municipality shall approve the scheme of a building estate unless it is of opinion that any one of a list of specified situations exists. As an example, the first of these is, "(a) that the roads therein will not suit the public convenience either then or later, or will not give satisfactory inter–communication to the inhabitants both of the building estate and of the municipality in which it is;". Among these specified situations to which the municipality is required by s467(1) to have regard before it approves the scheme of a building estate are sub–paragraphs (f) and (g), referred to in the submissions set out above, which provide:—
"Subject to Part XVIII and to section 465, the Corporation shall approve the scheme of a building estate unless it is of opinion—
.............................
(f)that, where a planning scheme has been finally approved as provided by Part XVIII, the scheme of the building estate is not in conformity with the tenor of the planning scheme as approved or lawfully modified;
(g)that, where the corporation is pursuant to Part XVIII under an obligation to prepare a planning scheme or not being under that obligation has resolved, pursuant to section 724 to prepare a planning scheme, the scheme of the building estate would not be in conformity with the tenor of the scheme if it had been completed and approved or would be in contravention of town planning principles;"
Part XVIII is that part of the Act which deals by Division 1 thereof with "Powers and duties of Commissioner for Town and Country Planning", and by Division 2 with "Town and country planning schemes". Division 2, dealing with town and country planning schemes, is the division which contains the sections upon which the applicant relies for his submissions that s467 (1) (f) and (g), and the Commissioner's power under s757(7) and (8), are inapplicable or ineffective where "subdivision is regulated by a sealed planning scheme or interim order". I turn then to the provisions of Part XVIII.
Division 1 of Part XVIII, dealing with "Powers and duties of Commissioner for Town and Country Planning", provides by s 718 for the appointment of a Commissioner for Town and Country Planning, "who shall be a person of special ability and experience in town and country planning". There follow detailed provisions for the appointment of the Commissioner, a Deputy Commissioner and Special Commissioners for Town and Country Planning, and for the functions of the Commissioner. Division 1 comprises ss718 to 721 inclusive.
Division 2 of Part XVIII, originally passed in 1963, was extensively amended by the Local Government Amendment (Development and Building) Act 1985; Act No 91 of 1985. Passage of that accumulation of complex amendments appears to have produced an intractable jungle through which even the most adventurous would–be developer would find it virtually impossible to tread without the skilled assistance of a lawyer and a town planner. Section 724 provides that any municipality may prepare a planning scheme in respect of a specified area, and that the Commissioner may vary the area so specified and may state the time within which the scheme shall be approved in accordance with s 726. Section 726 requires that every planning scheme prepared by a municipality shall be prepared as prescribed, and having been provisionally approved by resolution of the Council, shall not later than 12 months after the passing of that resolution be submitted for approval to the Commissioner. Section 727 then requires, inter alia, that every planning scheme submitted to the Commissioner by a municipality may be provisionally approved by him, and that before provisionally approving any such scheme the Commissioner may require the municipality to alter or amend it in such manner as he may direct. After provisional approval by the Commissioner, the section requires that the municipality in a prescribed manner shall publicly notify the scheme, and deposit in the municipal office for public inspection copies of all maps, plans and the like. Subs (4) of s727 provides that every owner and occupier of rateable property within the area affected by the scheme has a right of objection to the scheme, and provides how he may give notice of that objection.
Section 728 provides for the municipality, after receiving objections under s727, to forward them within specified times to the Commissioner, together with a statement of its opinions and views as to the merits of the objections. In some specified cases, the municipality may itself object. Section 729 provides for the Commissioner to consider the objections, hear the objectors, and in the end uphold or dismiss the objection. Section 729A provides for rejection or modification of the scheme, and in the case of rejection of a scheme, for the preparation of another scheme, and the like. Section 730 provides for final approval and sealing of the scheme by the Commissioner, the recording of it, and its coming into operation. Section 731 provides that when a scheme has been sealed under s730, it becomes the duty of the municipality within the ambit of its powers to give effect to and observe and enforce the observance of the requirements of the scheme in respect of all new works undertaken within the area affected, whether by the municipality or by any other person public or private. It further provides that the municipality shall not after the sealing of the scheme undertake or permit any alteration or modification of any existing such works, without the consent in writing of the Commissioner, if that alteration or modification would tend to prevent or delay their being brought into conformity with the tenor of the sealed scheme. Sections 732–733 provide for modification or suspension of a sealed scheme, or review thereof, all under the ultimate control of the Commissioner.
Then begins a series of sections which are very important to the disposition of the present application.
Section 733B relates to applications for planning approvals. A "planning approval" is defined by s733A as meaning "any permit, approval, or consent required by a planning scheme or interim order to be issued or given by a corporation in respect of the development of any land subject to the scheme". In s733B, there are detailed provisions concerning many matters relating to planning approvals. The municipality is required to determine an application for a planning approval within specified times, and s733B(5) provides that in determining an application for a planning approval to which the section relates, the corporation shall have regard to any representations relating to the application that were made during a period of 14 days beginning on the relevant date. The "relevant date" is defined in s733B(6). Under subs (8) of s733B, the corporation upon granting or refusing a planning approval is required to serve notice of its decision on the applicant, and where representations have been made in relation to the application in accordance with subs (5) of s733B, to publish notice of its decision in a daily newspaper published in Tasmania and circulating generally in the locality in which the land to which the application relates is situated.
Section 733C then provides that where the municipality refuses to grant a planning approval, or grants it subject to conditions or restrictions, the applicant may in accordance with s733D appeal to the Appeal Board against its decision. It also provides that where the municipality has granted a planning approval, any person who has made representations under subs (5) may appeal under s733B against the grant of the approval. Section 733C also provides that the Appeal Board may allow or dismiss the appeal, or exercise other specified powers, so that the effect of its decision is that which it is of opinion should have been the decision of the corporation on the application to which the appeal relates. The Appeal Board's determination of an appeal is under the same section required to be given effect to by the corporation.
Section 733D proceeds to provide for the manner of instituting an appeal to the Appeal Board, and the procedure on such appeals, including provision for the holding of a compulsory conference in certain circumstances to try to resolve the dispute, or to reduce the number of issues to go before the Appeal Board.
Section 733G sets up a Planning Appeal Board referred to in the definition section, 733A, as the "Interim Planning Appeal Board", which is to consist of a Chairman, two Deputy Chairmen, and not less than six other members. The Chairman and Deputy Chairmen are to be legal practitioners or barristers, and not less than two thirds of the other members are to be persons who are qualified and experienced in town and country planning. The section also provides for the constitution of a particular Appeal Board for the hearing of each appeal.
There follows s734, which is significant in the context of this case. Subs (1) provides that a municipality which is under an obligation under Part XVIII to prepare a planning scheme, or which is not under such an obligation but has resolved pursuant to s724 to prepare a scheme, may at any time before the scheme has been sealed by the Commissioner exercise the powers set forth in subs (2). Subsection (2) provides that the municipality may, subject to subs(2A), make "interim orders", providing for the regulation, in relation to matters specified in Schedule 7, of the development of any land in the area to be subject to the scheme, including in particular the control, management, restriction, and prohibition of any aspect of the development of that land which relates to any of the matters specified in Schedule 7. It may also issue dispensations, absolute or conditional, from its interim orders in such cases as it thinks proper. It was under this section that Interim Order No 1, referred to earlier, was made by the Sorell Municipality in this matter, and under this section also that the Municipality made the dispensation order from its Interim Order No 1, which the present applicant was able to obtain.
Subsection (2A) of s734 provides that an interim order shall not be effective unless it is approved in writing by the Commissioner and published by public notice. Subsection (4) of the section provides that after the expiration of six months from the commencement of the subsection a municipality shall not in the exercise of any of its powers under Part XVIII refuse or grant conditionally its consent to, or prohibit, the undertaking of any development in its municipal district otherwise than in pursuance of a planning scheme in force under s730, or of an interim order in force under s734. Other provisions concerning interim orders are also made in that section.
The provisions which I have outlined above are those which are relevant to the applicant's submissions in the present case. It was submitted that once the applicant's land had been "regulated by interim order", the Commissioner's powers under s757 became limited so as to preclude him from making any planning determination, and his refusal to consent to this application for planning approval of the building estate was ultra vires. The applicant acknowledges that the interim order itself states in Schedule 4 of the attached Planning Document No 1 that any person wishing to undertake any subdivision of land within the planning area shall make application to Council for the approval of such subdivision in accordance with the provisions of ss464, 469 and 757 of the Act and Statutory Regulation 203 of 1978", but the applicant claims that this Schedule 4 of the Interim Order is unlawful. In my opinion, these submissions are without substance. This part of Schedule 4 of the Interim Order is valid. The Commissioner's power under s757(7) and (8) is quite plainly independent and overriding. He is to exercise his powers under subs(7) "in such manner as he considers the principles of town planning require". The Corporation's approval of this application for approval of the applicant's subdivision plan, which came within the description of "building estate", was subject to the Commissioner's consent, which he within the ambit of his powers declined to give.
There is no substance in the contention that when an interim order has been made "regulating subdivision", ss467 and 757 no longer apply to subdivisions concerning land to which the interim order so "regulating subdivision" relates, as the applicant submits here. In association with that submission, it is contended that the Commissioner's function under s757 is to do no more than oversee the proper exercise by the corporation of its powers and duties under Division 2 of Part XVI of the Act. Those submissions are equally untenable. (In the present case, of course, the Interim Order No 1 itself made the applicant's application for approval of subdivision impossible originally, because of his land being zoned as rural under that order, and he was only enabled to make his application by reason of the Corporation's granting him a dispensation from the Interim Order). Proper weight must be given to the word "interim". It is an interim order, and the Appeal Board is an Interim Planning Appeal Board. The general object manifested by the legislation of interim orders made under s734 is to control development in areas of land which are to be the subject of a planning scheme whilst such scheme is in the course of preparation, and at the same time not to impede such development more than necessary as long as it does so conform. But the final arbiter concerning the application of town planning principles in relation to such applications for planning approval remains always the Commissioner. The fact that under Schedule 7, town and country planning schemes and interim orders may deal with the sizes and dimension of lots and other blocks into which land may be subdivided, together with many other matters specified therein, in no way affects the provisions which require applications for planning approval to be, after all earlier proceedings have been completed, approved or rejected by the Commissioner.
The provisions for appeal to the Interim Planning Appeal Board fall logically enough within this overall scheme. A developer may be aggrieved by refusal of his application, and at the same time his application may have been opposed for various reasons by persons who claim they would be injuriously affected by it if it proceeded. Provision is made for resolution of these conflicts in a manner which is conformable with usual methods of resolving such disputes inter partes.
Accordingly, the ground which claims that the Commissioner's rejection of the application for planning approval was invalid because he had no power to reject it is not sustained.
The other two grounds may be considered together. They are, that the Commissioner in rejecting the application failed to take into account relevant matters, and that his determination was in all the circumstances unreasonable. In considering the contention that the Commissioner in refusing approval failed to take into account relevant considerations, I apply the rules set out by Mason J (as he was then), in Minister for Aboriginal Affairs and Anor v Peko–Wallsend Ltd & Ors (1985) 66 ALR 299, at pp308–314. Gibbs CJ and Dawson J agreed with the judgment of Mason J I also with respect accept and apply the judgment of Lord Greene MR in Associated Provincial Picture Houses Ld v Wednesbury Corporation [1948] 1 KB 223, a decision which has been accepted and applied many times since. In relation to the proposition that the discretion conferred upon the administrative authority must be exercised reasonably, his Lordship said, at p229:—
"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."
At pp 233–4, his Lordship said:—
"I do not wish to repeat myself but I will summarize once again the principle applicable. A court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."
One of the rules which Mason J laid down in Minister for Aboriginal Affairs & Anor v Peko–Wallsend Ltd & Ors (supra) was that:—
"The ground of failure to take into account a relevant consideration can only be made out if a decision–maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor General [1981] 1 NZLR 172 at 183, 196–7; Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232–3) The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228, that a decision–maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider'."
The matters which counsel for the applicant claims were not taken into account by the Commissioner in this case are:—
the suitability of the land for low density residential development;
the lack of viability of the property for rural purposes; and
the fact that a planning approval had been obtained under Part XVIII of the Act.
Assuming without deciding that all of these three matters, were such that the Commissioner was bound to take each one into account in considering his decision, the evidence shows that he did in fact consider them. The Commissioner's affidavit says, inter alia, that in his view the appropriate zoning of the subject land is rural, for reasons which include that the lack of economic viability of a farm enterprise is not an adequate reason for approving subdivision of land for residential purposes, and that further low density development would be contrary to public interest and add to community cost. A further reason was that the fragmentation of rural holdings of this nature, capable of being used for agriculture, is undesirable. The affidavit does not say specifically that the Commissioner took those matters into account when he made his decision, but the implication is that he did, and his oral evidence confirmed that he did. The Commissioner was cross–examined at the hearing, and in the course of that cross–examination said that in making his decision he attached no weight to the suitability of the land for low density residential development, and no weight to the fact that the land was not viable for rural purposes. Nor did he give any weight to "the fact that Mr McDermott had a planning approval", by which I take it the applicant means that the Corporation had granted him a dispensation from the Interim Order, and had expressed approval of his subdivision plan and had recommended it to the Commissioner.
The Commissioner's evidence to which I have referred, and his evidence overall, show quite plainly that he was aware of and considered the matters which the applicant claims he left out of account, although he accorded them no weight, which he was entitled to do. Therefore this ground, that the Commissioner failed to take into account matters which he was obliged to give consideration to, fails.
The applicant also claims, in substance, that the Commissioner's decision refusing consent to the application was so unreasonable that no reasonable official in the Commissioner's place and subject to his duties and obligations under the Act, could have come to such a decision. That proposition is founded mainly upon the evidence of three experts called by the applicant. They all gave evidence which expressed the opinion overall that the applicant's land was highly suitable for the purpose of rural residential development as he proposed to apply it, and saying that they were unable to identify any principle or principles, of town planning which would permit or require his subdivision proposal to be rejected. The applicant's experts were all well qualified, and with respect I have no reason to think that their views on the application of town planning principles to this particular application for planning approval are not reasonably arguable. It is not the function of the court to express an opinion as to the relative merits of their views and the Commissioner's as to the application of town planning principles here, but it appears to me on the evidence presented that the Commissioner's reasons for refusing to grant the application are at least as reasonably arguable as theirs. That is to say, there is no basis in the evidence for suggesting that the view formed by the Commissioner, on which he based his decision, was not reasonably open to him.
For the above reasons, the application made in these proceedings should be dismissed.
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