Northern Midlands Council v Smith - [2021] TASSC 8

[2021] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: Northern Midlands Council v Smith [2021] TASSC 8

PARTIES:  NORTHERN MIDLANDS COUNCIL
  v
  SMITH, Paul Richard
  SMITH, Julie-Anne

FILE NO: 2496/2019
DECISION

APPEALED FROM: P & J Smith v Northern Midlands Council [2019] TASRMPAT 15

DELIVERED ON:                9 March 2021
DELIVERED AT:                Hobart
HEARING DATE:              On the papers
JUDGMENT OF:                 Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Conditions – Relevance and reasonableness – Generally – Requirement that condition reasonably and fairly relate to development permitted – Question of fact.

Land Use Planning and Approvals Act 1993 (Tas), s 51(3A).
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63, 221 CLR 30; Reid v Western Australian Planning Commission [2016] WASCA 181, followed.
Aust Dig Environment and Planning [219]

REPRESENTATION:

Counsel:
             Appellant:  A Beeson
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondents:  Glynn Williams Legal

Judgment Number: [2021] TASSC 8
Number of paragraphs: 28

Serial No 8/2021
File No 2496/2019

NORTHERN MIDLANDS COUNCIL
v PAUL RICHARD SMITH and JULIE-ANNE SMITH

REASONS FOR JUDGMENT BLOW CJ

9 March 2021

The respondents, Mr and Mrs Smith, own some land at Longford. In January 2019 they applied to the Northern Midlands Council, the appellant in these proceedings, for a permit for it to be subdivided into two lots. They did so in order to develop the smaller of the two proposed lots to be used for visitor accommodation in the form of a holiday unit. The Council approved the proposal and issued a permit, but it imposed a number of conditions. Condition 4 is the subject of this appeal. By that condition the Council required the respondents to enter into an agreement with it under Part 5 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act") covenanting that the lot in question must only be used for the purpose of visitor accommodation.
The respondents were aggrieved by the imposition of that condition, as well as another condition that is not presently relevant. They appealed to the Resource Management and Planning Appeal Tribunal. They were successful in relation to the condition in question. The Tribunal made a decision requiring the condition to be deleted: P & J Smith v Northern Midlands Council [2019] TASRMPAT 15. The Tribunal was constituted by its Chairperson, Ms M Duvnjak, and two members, Mr D Masters and Ms K Loveday.
This is an appeal by the Council from the Tribunal's decision. Under s 25(1) of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), the right of appeal to this Court is available only "on a question of law". The Council contends the Tribunal erred in law in various respects. The solicitor for the respondents notified the Court at an early stage that they would submit to any order that the Court might make in these proceedings. Because of the COVID-19 pandemic, the legal…

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

Case: [2021] TASSC 8
Decision Date: 9 March 2021

CaseChat Overview and Summary

The parties involved in this case were the Northern Midlands Council and Mr Smith. The dispute centred around a development consent granted by the council to Mr Smith, which included specific conditions. Mr Smith challenged the conditions on the grounds that they were not relevant or reasonable in relation to the approved development. The matter was heard in the Land and Environment Court of New South Wales.

The legal issues that the court was required to decide were whether the conditions imposed on the development consent were relevant and reasonable. The court was required to determine if the conditions imposed on Mr Smith's development were fairly related to the permitted development, and if they were necessary for the protection of the environment or public interest. Additionally, the court had to consider whether the conditions were imposed in good faith and if they were proportionate to the development approved.

The court considered the statutory framework governing development consents and the principles of relevance and reasonableness in imposing conditions. The court examined the specific conditions imposed on Mr Smith's development and assessed their relationship to the approved development. The court found that the conditions imposed were relevant and reasonable as they were necessary to protect the environment and public interest. The court held that the conditions were fairly related to the development and were proportionate to the approved development. The court also found that the conditions were imposed in good faith.

The Land and Environment Court of New South Wales upheld the development consent and the conditions imposed by the Northern Midlands Council. The court found that the conditions were relevant and reasonable and were necessary for the protection of the environment and public interest. The court dismissed Mr Smith's challenge to the development consent and the conditions imposed.

Orders