Northern Midlands Council v Telstra Corporation Ltd - [2014] TASSC 54

[2014] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: Northern Midlands Council v Telstra Corporation Ltd [2014] TASSC 54

PARTIES:  NORTHERN MIDLANDS COUNCIL
  v
  TELSTRA CORPORATION LTD

FILE NO:  345/2014
DELIVERED ON:  15 October 2014
DELIVERED AT:  Hobart
HEARING DATE:  31 July 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Interim planning scheme – Appeal determined in accordance with superseded planning scheme – Permit issued pursuant to appeal tribunal decision and superseded planning scheme – Whether permit of no effect.

Land Use Planning and Approvals Act 1993 (Tas), s 62(3).
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s 23(7).
Aust Dig Environment and Planning [52]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine SC
             Defendant:  M E O'Farrell SC
Solicitors:
             Plaintiff:  Shaun McElwaine + Associates
             Defendant:  Ashurst Australia

Judgment Number: [2014] TASSC 54
Number of paragraphs: 22

Serial No 54/2014
File No 345/2014

NORTHERN MIDLANDS COUNCIL v TELSTRA CORPORATION LTD

REASONS FOR JUDGMENT BLOW CJ

15 October 2014

This case concerns a proposal for the erection of a telecommunications tower in Longford. Longford is within the municipal area of the plaintiff, the Northern Midlands Council. The defendant, Telstra Corporation Ltd, proposes to erect the tower. It obtained a permit for the erection of the tower pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). The council contends that that permit is of no effect as a result of the commencement of a new interim planning scheme.
The background to these proceedings can be summarised as follows:
· In the beginning the land in question was subject to the Northern Midlands Planning Scheme 1995. Under that scheme the erection of a tower on the land was discretionary, requiring a permit pursuant to s 57 of the LUPA Act.
· On or about 12 September 2012 Telstra lodged an application for such a permit with the council, which is and was the planning authority for the area for the purposes of the LUPA Act.
·     On 21 January 2013 the council resolved to refuse the grant of the permit.
· On 4 February 2013 Telstra appealed to the Resource Management and Planning Appeal Tribunal pursuant to s 61(4) of the LUPA Act.
·     There was a hearing before the tribunal on two days – 29 April 2013 and 28 June 2013.
· On 1 June 2013, between the first and second days of the tribunal hearing, by a notice under s 30F(1) of the LUPA Act, the Minister for Planning made a declaration whereby the Northern Midlands Interim Planning Scheme 2013 commenced operation, and the 1995 scheme ceased to have effect.
· On 19 July 2013 the tribunal decided to set aside the council's decision refusing the permit and, in substitution for that decision, to make a decision requiring the grant of a permit, subject to conditions which were to be agreed between the parties or, in the absence of agreement, determined by the tribunal. It made that decision in accordance with the 1995 scheme as s 62(3) of the LUPA Act required it to do so.
·     On 11 October 2013 the tribunal made a further decision determining the conditions of the permit, and directing the council to issue the permit.
·     On 31 October 2013 the council, in obedience to the tribunal, issued the permit, but it was a permit pursuant to the superseded 1995 scheme.
·     Work on the construction of the tower has not commenced.
The interim planning scheme is still in force. Under that scheme, the erection of the proposed tower is discretionary, and a permit is required under s 57. The council contends that the permit issued pursuant to the tribunal's decision is of no effect, and that Telstra needs to apply for a fresh permit under the interim planning scheme. Telstra contends that the issued permit is effective and sufficient, and that there is no need for it to apply for a new permit. The council has brought this action in order for the dispute between the parties to be determined. It is seeking a declaration that Telstra may not lawfully undertake the proposed development in accordance with the existing permit. Telstra contends that it may. In the alternative, it contends that the Court, in the exercise of its equitable discretion, should refuse to make a declaration.
The council contends that the following provisions of the LUPA Act make it necessary for Telstra, before it commences construction of the proposed tower, to apply to it and obtain a permit in accordance with the new interim planning scheme:
· Section 30F(5)(b), which provides that, "On and from the day on which an interim planning scheme that is declared in relation to an area of land comes into operation … the planning scheme that applied to the scheme immediately before the interim planning scheme came into operation ceases to have effect."
·     Section 63(2)(a), which provides that, "A person must not use land in a way, or undertake development … that … is contrary to … a planning scheme …"
·     Section 63(3), which makes the contravention of s 63(2) an offence.
·     Section 51(1), which provides that, "A person must not commence any use or development which, under the provisions of a planning scheme …, requires a permit unless the planning authority which administers the scheme … has granted a permit in respect of that use or development and the permit is in effect."
Under s 20(1)(c) of the LUPA Act, a planning scheme for an area "may make any provision which relates to the use, development, protection or conservation of any land in the area". Thus an interim planning scheme could contain transitional provisions in relation to decisions of the tribunal made after its commencement in appeals from council decisions made before its commencement. The scheme in question contains no such provisions.
Telstra relies on s 62(3) and (4) of the LUPA Act. Those subsections read as follows:
"(3) The Appeal Tribunal must determine an appeal in accordance with the planning scheme that was in place at the time the planning authority determined the application for a permit.
(4) In determining an appeal in accordance with subsection (3), the Appeal Tribunal has the same obligations as a planning authority at the time the planning authority determined the application for the permit."
Although s 62(3) requires the tribunal to determine an appeal in accordance with the planning scheme that was in place when the planning authority made its original determination, the Act does not expressly state that the tribunal's decision is to take effect as if the planning scheme were in force as it was at the time of the planning authority's original determination, or anything to that effect. Telstra contends that the Act should be interpreted as having that effect, by necessary implication.
The council contends that there is no basis for any such implication, and that the Act does not have any such effect. It contends that Parliament could have included an unambiguous provision in the Act to that effect, but that it did not, and that that is the end of the matter.
The task of determining the proper construction of s 62(3) must "begin with a consideration of the text itself": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. There are two different situations that s 62(3) might apply to – the situation where a planning scheme is amended, and the situation where a planning scheme ceases to have effect because it is superseded. The subsection speaks of "the planning scheme that was in place" at the time of the determination appealed from. Those words clearly suggest that the subsection is not just directed towards the situation where a planning scheme is amended, but is intended to have practical consequences when a planning scheme is wholly superseded.
Section 23(7) of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act") provides as follows:
"(7) The Appeal Tribunal's decision in relation to an appeal must be given effect to by the person who is responsible for giving effect to the decision that gave rise to the appeal."
That subsection applies to all appeals to the tribunal, including appeals pursuant to s 61(4) of the LUPA Act. The council was therefore obliged to issue a permit in order to give effect to the tribunal's decision. The council contends that it was obliged to go through the motions of issuing that permit, but that the permit was of absolutely no effect because it was issued under the 1995 scheme, which had ceased to have effect because of s 30F(5)(b) of the LUPA Act. If the legislation obliged the council to issue a permit that could not possibly have any effect, that would be an absurd situation.
If the council's contentions are correct, s 62(3) of the LUPA Act would have different results in different situations, depending on whether a planning scheme was amended or superseded. If a planning scheme were amended, the tribunal would be obliged to ignore the amendment, and could make a decision requiring the issue of a permit that would have effect. But, if the council's contentions are correct, if a planning scheme had been superseded, the appeal tribunal would be required to hear and determine an appeal for the purpose of deciding whether to direct a planning authority to issue a permit that could not possibly have any effect.
Section 23(7) of the RMPAT Act has been in its present form ever since 1993. Section 62(3) and (4) of the LUPA Act, which require the tribunal to apply the planning scheme as in place at the time of the determination appealed from, were introduced by the Land Use Planning and Approvals Amendment Act 2007. In the relevant second reading speech (House of Assembly, 3 July 2007), the Minister for Planning, Mr Kons, said that the amendment to s 62 would overcome "the unfair situation where a person may be granted a valid permit that cannot be acted upon because subsequent changes have been made to the planning scheme before the appeal can be heard by the appeal tribunal".
Relevant amendments were made to the LUPA Act on two subsequent occasions. Interim planning schemes were introduced by provisions that were added to the LUPA Act by the Land Use Planning and Approvals Amendment (State and Regional Strategies) Act 2009. That Act did not introduce any provisions relating to the effect of the commencement of an interim planning scheme on existing permits, applications or appeals.
Subsequently, the Land Use Planning and Approvals Amendment Act (No 2) 2012 introduced s 30FA of the LUPA Act. That section applies to permit applications that are pending before a planning authority when an interim planning scheme comes into operation, and related subsequent appeals. However no provision was made for the situation in which Telstra found itself in this case, with an appeal pending at the time when an interim planning scheme came into operation.
Under s 30FA(1) any application under s 43A for both a permit and a change of zoning "ceases to have effect" when an interim planning scheme comes into operation. Under s 30FA(2) and (3), if any other type of permit application is pending before a planning authority when an interim planning scheme comes into operation, then the former planning scheme continues to apply to the planning authority's decision-making, and to any appeal to the tribunal, and the LUPA Act applies as if the former planning scheme continued in force. Those subsections do not apply to applications which, when an interim planning scheme comes into operation, have been determined by the planning authority and are the subject of, or later become the subject of, an appeal to the tribunal. There is no express provision in the Act to the effect that it applies to such appeals as if the former scheme continued in operation, and the interim planning scheme did not apply.
The situation covered by s 30FA, where a permit application is pending when an interim planning scheme comes into operation, is not the only situation for which the Act makes specific provision in relation to the consequences of the commencement of an interim planning scheme. The Act also contains express provisions relating to the impact of an interim planning scheme on existing use rights.
Existing use rights are conferred by s 20(3) of the LUPA Act so that the commencement of a planning scheme does not prevent the continuation of the existing lawful use of any land, building or works, nor the use of any buildings or works for purposes for which they were being lawfully erected, nor, subject to certain time limits, any development that was lawfully commenced but not completed upon the planning scheme coming into operation. That subsection applies to interim planning schemes. That is because "planning scheme" is defined in s 3(1) of the LUPA Act so as to include an interim planning scheme. Some provisions of the LUPA Act do not apply to interim planning schemes, but s 30E(7) specifically preserves the operation of s 20 when an interim planning scheme comes into operation.
There is another situation in which an issued permit undoubtedly ceases to have effect when an interim planning scheme comes into operation. If a permit is granted in accordance with a planning scheme, and there is no appeal to the tribunal, and an interim planning scheme comes into operation before construction or development has commenced, then there is nothing in the legislation that preserves the rights conferred by the permit. In that situation, subject to any transitional provisions in the interim planning scheme, the permit under the superseded scheme must cease to have effect by virtue of s 30F(5)(b). None of the "continued use" provisions in s 20 apply to that situation.
In summary, it can be said that the LUPA Act does not contain a coherent scheme in relation to the status of permits, applications and appeals when a planning scheme is superseded by an interim planning scheme. There are situations in which issued permits do and do not cease to have effect. There are situations in which a new permit can take effect pursuant to a superseded scheme. But there can be situations in which rights are extinguished as a result of an interim planning scheme coming into operation.
However I think the following factors compel the conclusion that, when s 62(3) of the LUPA Act applies, and the tribunal makes a determination requiring the granting of a new permit in accordance with a superseded planning scheme, then that permit will have effect as if that planning scheme had not been superseded:
· The wording of s 62(3) indicates that it should be construed as producing that result when a planning scheme is superseded.
· If s 23(7) of the RMPAT Act is given its ordinary literal meaning, it must be construed as meaning that a decision of the tribunal must be given effect to, even when s 62(3) of the LUPA Act applies and the tribunal has determined that a permit should be issued under a superseded planning scheme.
· It would be absurd if, as contended by the council, the tribunal could be required to hear an appeal for the purpose of determining whether a totally ineffective permit should be issued, ignoring the fact that a planning scheme had been superseded and, if the council is correct, the fact that any permit would be totally ineffective.
· It would be absurd if, as contended by the council, s 23(7) of the RMPAT Act required a planning authority to issue a totally ineffective permit.
· Since s 62(3) of the LUPA Act was introduced when s 23(7) of the RMPAT Act was already in force, it should be inferred that the two provisions were intended to operate harmoniously together.
· Section 62(3) is a specific provision which should prevail over s 30F(5)(b), which is a general provision. Generalia specialibus non derogant.
The council has sought a declaration that Telstra may not lawfully undertake "the development" – the development and use of a portion of its land at 8a Lyttleton Street, Longford for the purposes of a telecommunications tower and associated infrastructure – in accordance with "the permit" – the permit issued by the council on 31 October 2013. For the reasons stated above, Telstra may lawfully undertake that development in accordance with that permit. I have therefore decided to dismiss the action.