Novak International Pty Ltd v Resource Planning and Development Commission

[2008] TASSC 20

[2008] TASSC 20

CITATION:Novak International Pty Ltd v Resource Planning and Development Commission [2008] TASSC 20

PARTIES:  NOVAK INTERNATIONAL PTY LTD

v
  RESOURCE PLANNING AND DEVELOPMENT COMMISSION

THE HON STEVEN KONS, ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA

TITLE OF COURT:             SUPREME COURT OF TASMANIA
JURISDICTION:                   ORIGINAL
FILE NO/S:  M114/2006
DELIVERED ON:                 9 May 2008
DELIVERED AT:                  Hobart
HEARING DATES:              17 and 18 March 2008
JUDGMENT OF:                  Slicer J

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Unreasonableness – Whether irrelevant considerations taken into account – Whether relevant considerations not taken into account - Whether decision unreasonable.

Aust Dig Administrative Law [1036]

Administrative Law – Judicial review – Grounds of review – Applying policy and merits of case – Policy not arbitrary – Extent of consideration may vary.

Aust Dig Administrative Law [1038]

Environmental Planning – Planning schemes and instruments – Local environmental plans – Generally – Site specific design guidelines.

Land Use Planning and Approvals Act 1993 (Tas), ss20(1)(a), 21, 32(1)(e) and (f), 33, 35, Sch1.
Judicial Review Act 2000 (Tas), ss17, 21.
Von Witt v Hobart City Council (1995) 86 LGERA 134; Krushka Pty Ltd v Peacock (1997) 95 LGERA 427, Lark v Nolan [2006] TASSC 12; R v Resource Planning and Development Commission; ex parte Stevens (1999) 103 LGERA 181; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, considered.
Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675; Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99; Kain v Glamorgan/Spring Bay Council (1996) 90 LGERA 326, followed.
Aust Dig Environmental Planning [18]

REPRESENTATION:

Counsel:

Applicant:  S P Estcourt QC and A C R Spence
             Respondent:                 P Turner
             Intervenor:                  P Turner
Solicitors:
             Applicant:  Page Seager
             Respondent:                 Director of Public Prosecutions
             Intervenor:                  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 20
Number of Paragraphs:                   49

Serial No 20/2008
File No M114/2006

NOVAK INTERNATIONAL PTY LTD v RESOURCE PLANNING
AND DEVELOPMENT COMMISSION and THE HON STEVEN KONS, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT  SLICER J
  9 May 2008

1. The applicant intended to develop a commercial complex located within the municipality of the Northern Midlands approximately 15 kilometres from the Launceston CBD and 5 kilometres from the township of Evandale.  The Northern Midlands Council ("the Council") proposed an amendment to its planning scheme, a course opposed by a number of persons or institutions which included the following: the adjoining municipal body, the Launceston City Council, the Launceston Chamber of Commerce, and a commercial business promotion association.  The proposed amendment was referred to the Resource Planning and Development Commission ("the Commission") in accordance with the provisions of the Land Use Planning and Approvals Act 1993 ("LUPA") and the Resource Planning and Development Act 1997 ("the Act"), which refused to permit the proposed amendment.  The applicant seeks review of that decision in accordance with the Judicial Review Act 2000, s17. The Commission and the Launceston City Council have submitted to the jurisdiction of the Court and the opponents to the amendment are effectively represented here by the Attorney-General.

The proposal

1. The applicant had sought to develop a "Homemaker/Bulk Goods Centre", described as:

   "… purpose built, well designed and integrated development specialising in bulky goods/ large format Homemaker retailing with a focus on electrical goods, household appliances, furniture, furnishings, homewares, whitegoods and sporting goods."

   With:

   "… a total building area of 30,000 sq m, and was intended to become the premier location for Homemaker type retailing in the region, with drawing power from a wide area extending throughout north-eastern Tasmania, and with the potential to improve the level of retail service for residents in the region."

2. The complex was to be erected on lot 23 of the TRANSlink subdivision approved under a permit as an industrial zone with an adjoining business zone.  Each zone was divided into three sub-zones with applicable Land Use Tables and Development Standards.

3. A concept plan had been submitted to the Council, but no detailed development plan, since the applicant had indicated that if it was to proceed with the development, it would be in a form different from that suggested in the concept plan.  The Commission excluded the contents of the concept plan from its consideration of the proposed amendment.

4. The site was located on the TRANSlink Estate at Western Junction, already classified as Industrial (L1) and Business (C2).  The Council's planning scheme provided for permitted uses of the site.  The existing scheme, cl 6.2, provided that the intent of the zone was:

   "6.2.1.i)The intent of the TRANSlink Industrial Zone is to provide land which can be developed for industrial and commercial uses which serve the strategic needs of Launceston, the Tamar Region and the State, and which would derive a particular benefit from a location having proximity to Launceston Airport, access to the States road and rail network or links to the port of Bell Bay.

   6.2.1.ii)The primary role of the zone is to cater for storage, transport and industrial uses. A secondary role of the zone is to provide for a limited range of retail or other activity which supports the primary role of the zone or can demonstrate that the location offers a particular strategic advantage."

5. The Table of uses for the General Industrial Zone provides:

   "6.2.2

table of uses and developments in the translink industrial (l1) zone
1			2	3	4
permitted (no permit required)			permitted (with permit)	discretionary (with permit)	prohibited
area 1
Utility Services (Minor) Recreation Passive			Car Park Industry Light Industry Research & Development Industry Service Utility Services (Major) Service Station1 Store Subdivision6 Transport Depot Transport Terminal Warehouse	Apartment7 Emergency Services Facility Fuel Depot Industry General Industry Rural Showroom2 Toxic/Dangerous Goods Store3	All other uses not listed
area 2
Utility Services (Minor) Recreation Passive			Car Park Industry Light Industry Research & Development Store Subdivision6 Transport Depot Transport Terminal Warehouse Office8	Apartment7 Emergency Services Facility Office Passenger Transport Terminal Showroom Vehicle Sales4	All other uses not listed
area 3
Industry Light1 Store Subdivision6 Transport Depot5 Transport Terminal5 Warehouse5 Office	Apartment7 Industry General Industry Research & Development Industry Rural Utility Services (Major) Toxic/Dangerous Goods Store	All other uses not listed

Where a notation is listed, the following conditions or restrictions apply:

1    The applicant is to demonstrate that the use or development provides a service to other industries in the TRANSlink Industrial Zone.

2    The floor area is to be no greater than 200m2 and related to another permitted development.

3    Only where the relevant airport safety authority has determined that the use will not pose a threat to the safety and amenity of the airport.

4    Where any sale of vehicles is ancillary to a vehicle hire use and where not more than six vehicles for sale are displayed at any time.

5    The applicant is to demonstrate that the use or development requires access to the existing or future rail line.

6    Subdivision of land is discretionary where 6.2.3(b) applies.

7    An apartment provided as a caretaker's flat or for security purposes, must be incorporated in the main building and its construction must meet Australian Standard 2021 - 1985 'Acoustics-Aircraft Noise Intrusion - Building Siting and Construction'. The prohibition of a residential use specified in Clause 15.6.5 does not apply.

8    Clause 6.2.4. applies.

9    On land CT136826/1 at 15 Richard Street, Western Junction, a take away and restaurant (café) in accordance with permit number P05-378 is a discretionary use and development.

6.4.2.

table of uses and developments - industrial light (l3) zone
1	2	3	4
permitted (no permit required)	permitted (with permit)	discretionary (with permit)	prohibited
Utility Services (Minor)	Contractors Depot Home Business Industry Light Industry Research and Development Utility Services (major) Recreation Passive Service Centre Service Industry Store Warehouse	Civic Facility Emergency Services Facility Funeral Establishment Garden Centre Indoor Sports Centre Plant Sale & Hire Yard Recreation Active Showroom Subdivision Transport Depot Transport Terminal Waste Transfer Station Wood Yard Use or development in accordance with Clause 2.6.1(iii)	All other uses not listed"

1. The Commission noted that Business Zone (C) "might have been seen as a more appropriate location for a large retail centre" but given its more general conclusion that the proposed amendment did not include a change to the zone intent, nor was it a Specified Departure, little, if anything, turns on that observation.

2. The existing industrial zone permits permitted or discretionary uses as including those for office, service station, restaurant, licensed establishment, shop and car park.  Industrial Zone L1 provides for commercial business, hotel, service station, commercial/business, business park/commercial offices, distribution centre and industrial use.  The Commission found that "land use conflict in terms of the nature of activity on the land [was] unlikely to occur, and should not be regarded as a significant impediment to the proposal."

3. The Council decided to amend the Ordinance, cl 6, by adding 6.2.5.  It recommended to the Commission the approval of its original adoption, with the addition of a site plan and a number of modifications so that the final amendment considered by the Commission read:

   "Council's Report

   At a meeting held on 17 October 2005, the Council received a planning consultant's report on the representations received, with a detailed response to be forwarded to the Commission in accordance with Section 39 of the Land Use and Planning Approvals Act 1993. The consultant stated that the report had been prepared with input from the principal novak International, Contour Consultants (applicants on behalf of novak), Essential Economics, and GHD. (The latter two parties are consultants to novak).

   The Council recommended that the Commission approve the draft amendment, with the addition of a site plan, and a number of modifications and reformatting, so that the amendment would then read as follows:

   'To amend the planning scheme ordinance by inserting after Clause 6.2.4, the following-

   site specific amendment (homemaker/bulky goods centre)

   translink, western junction

   1    This clause applies to land described as lot 23 under subdivision Permit P03-447. Evandale Road, Western Junction, as shown in Appendix 4A.

   2    Use Definition

   For the purposes of this Clause, Homemaker/Bulky Goods Centre means any land used for the sale or hire of merchandise of a kind used predominantly in the building, renovation, fitting out, landscaping and use of homes and gardens. 'Merchandise' includes, but is not limited to, furnishings, furniture, hardware, whitegoods, homewares, household appliances, landscape and gardening supplies, building supplies, automotive parts and accessories, camping equipment, computer equipment, electrical supplies, entertainment equipment, equestrian supplies, office supplies, protective clothing, party supplies, sporting goods, swimming pools and travel goods. 'Merchandise' does not include the sale of fresh or packaged foods, general purpose or fashion clothing, pharmaceuticals or chemist supplies, or similar day to day consumables. This use includes activities of an ancillary nature including provision of meals or refreshments for staff and visitors of the Homemaker/Bulky Goods centre.

   3    Permitted (with Permit)

   Notwithstanding anything in this Scheme to the contrary, use and development for the purposes of a Homemaker/Bulky Goods Centre is permitted (with permit) if:

   1   it meets the development standards contained in this Clause; and

   2   it meets all other applicable requirements of the Scheme.

   4    Discretionary

   1   Notwithstanding anything in this Scheme to the contrary, use or development of the site for the purposes of a Homemaker/Bulky Goods Centre is discretionary if:

   A  It does not meet a development standard contained in this Clause; or

   B  Clause 2.6 applies in relation to any other applicable requirement of the Scheme.

   2   Notwithstanding clause 17.7, use or development of the site for the purpose of a Roof Sign or Flag Sign is discretionary.

   5    Development Standards

   1Maximum Floor Area

   The maximum floor area of the Homemaker/Bulky Goods Centre is 30,000 sq m, of which not more than 250 sq m may be used and developed for ancillary activities.

   2   Site Coverage for Parking and Access

   The maximum site coverage for parking, including access, is 40% of the area of the site."

4. The form of the amendment was similar to one previously made with respect to office premises (6.2.4) entitled "site specific".

Decision of the Commission

1. The Commission conducted a hearing, receiving evidence from all interested parties. It was required by LUPA, ss8, 20(1)(a) and (d), 21(1), 32(1)(e) and (f), 33(1) and (3) and 35(1), which provide:

   "8   Functions of Commission

   The functions of the Commission under this Act are to –

   (a)   certify and approve planning schemes and amendments to planning schemes; and

   (b)   perform such other functions as are imposed on it by or under this Act.

   20  What can a planning scheme provide for?

   (1)   A planning scheme for an area ¾  

   (a)must seek to further the objectives set out in Schedule 1 within the area covered by the scheme; and

   (b)…; and

   (c)…; and

   (d)must have regard to the strategic plan of a council referred to in Division 2 of Part 7 of the Local Government Act 1993 as adopted by the council at the time the planning scheme is prepared

   21  Co-ordination of planning schemes

   (1)   Subject to section 20(1), a planning scheme for an area must, as far as practicable, be consistent with and co-ordinated with the planning schemes applying to adjacent areas and must have regard for the use and development of the region as an entity in environmental, economic and social terms.

   32  Requirements for preparation of amendments

   (1)   An amendment of a planning scheme ¾  

   (a)…;

   (b)…;

   (c)…;

   (d)…;

   (e)must, as far as practicable, avoid the potential for land use conflicts with use and development permissible under the planning scheme applying to the adjacent area; and

   (f)must have regard to the impact that the use and development permissible under the amendment will have on the use and development of the region as an entity in environmental, economic and social terms.

33  Request for amendment of planning scheme

(1)   A person may request a planning authority to amend a planning scheme administered by it.

(2)   A request is to be in a form approved by the planning authority.

(2A) …

(2B) …

(3)   A planning authority must, within 42 days of the receipt of a request, make a decision as to whether or not to initiate an amendment of the planning scheme and serve on the person who made the request notice of its decision within 7 days of making the decision.

35  Certification of draft amendments by planning authorities

(1)   After preparing a draft amendment of a planning scheme, the planning authority must determine whether the draft amendment meets the requirements specified in section 32 and ¾  

(a)if satisfied that it does, certify the draft amendment as so meeting those requirements; or

(b)if not so satisfied, proceed to modify the draft amendment until it does meet those requirements and then certify the modified draft amendment as so meeting those requirements."

It was required to report (s39) and was empowered by virtue of LUPA, s41, to direct modifications to the proposed amendment. The Resource Planning and Development Commission Act 1997, s6, provides for those functions and powers of the Commission "conferred on it under any Act", and extends those powers "in connection with, or incidental to, the performance of functions". It is required to perform those "functions and exercise its powers in a manner that furthers the objectives set out in Schedule I". Schedule I, in turn, provides:

"1    The objectives of the resource management and planning system of Tasmania are ¾  

(a)  to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b)  to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c)  to encourage public involvement in resource management and planning; and

(d)  to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e)  to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.

2In clause 1(a) ¾

'sustainable development' means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety while ¾  

(a)  sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b)  safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c)  avoiding, remedying or mitigating any adverse effects of activities on the environment."

Whilst cl 1(e) refers to the sharing of responsibility, here, although it provides a framework of objectives, it provides no additional power to that afforded by LUPA, except in the most general terms. But it is required to pay regard to all of the statutory objectives and not selective reliance. As Wright J stated in Von Witt v Hobart City Council (1995) 86 LGERA 134 at 141:

"General principles suggest to me that it would be surprising if the statement of objectives in the Scheme were intended to be given the dominance and inflexibility which the Tribunal's approach appears to have accorded them. To do so would be to rob many of the specific provisions of the Schedule A of any effect at all. As I have said that Schedule quite plainly and unambiguously contemplates the possible development of land for 'consulting rooms' in the East New Town Precinct if, as a matter of discretion the Council should consider that an appropriate course in any individual case. The discretion reposed in the Council to consider and permit such a use cannot be set at nought by statements of general intent and purpose contained in cl5.7.2, nor, as I have already indicated, is this the result which flows from a proper interpretation of that clause or the Scheme as a whole."

1. The Commission does not necessarily "stand in the shoes" of the proposing council.  A council might need to respond more directly to a community's expression.  It might pay regard to various concerns of its electorate (Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99).

2. The Commission made a number of findings which it concluded required the rejection of the amendment to the scheme.  The ultimate conclusion was that:

   "… the draft amendment should be rejected because of a conflict with planning strategy and the retail hierarchy of the northern Tasmanian region, environmental and social impacts of the out-of-centre location, and defects in the amendment as drafted."

1. Central to its determination was its conclusion that:

   "… since the amendment does not include a change to the Zone Intent, and is not framed as a Specified Departure, the Zone Intent still applies, and the proposed use is clearly in conflict with it."

2. The Chamber of Industry had contended that the terms of the planning scheme, 6.2.1(ii), was to permit "a limited range of retail" given the size of the intended complex and the variety of the goods to be sold.  However, to an extent, the proposed use did limit the type of merchandise to home and leisure or lifestyle products.  "Limited" retail is not necessarily defined by volume.  The Commission rejected the applicant's argument that the exclusion of all retail products, other than those identified in the definition provided in cl 6.2.5.  The Commission did not fully explain its reasoning in accepting the opponent's contention (see Krushka Pty Ltd v Peacock (1997) 95 LGERA 427). It may be that this basis was subsumed by or into the other reasons adopted by the Commission and its conclusion on this point will be later considered.

3. The Commission considered a range of factors and reached findings both in favour of and against the proposal. Here, those which are subject to review are those adverse to the applicants. It does not follow, however, that a finding by this Court that a particular matter could or ought to have been decided differently would warrant the setting aside of the decision. Those matters are set out in a helpful summary published by the Commission under a summary of assessment of the objectives stated in SchI of the Objectives of LUPA. The Court appreciates the form of the summation and attaches it to these reasons for judgment. The method assisted the Court in understanding the general compilation of reasons which supported the decision and those regarded as not relevant or having no impact. The matters adverse to the applicant's cause can be categorised as:

   (1)The amendment conflicting with a wider retail hierarchy required for the orderly development of the wider region lacks strategic considerations and is unilateral rather than co-operative.  It is not integrated into other municipal and regional strategies.

   (2)The amendment is a response to a specific development application, rather than appropriate planning principles and strategies.

   (3)Grant of the amendment will result in untoward social and economic effects, the extent of which, absent specifics of the development, are difficult to quantify.

   (4)Failure to protect public infrastructure enabling the orderly provision of public utilities for the benefit of the community.

   (5)Defects in the form of the amendment.

4. Given my conclusion as to the primary issue of incompatibility between the planning scheme, cl 2, and the amending cl 6.2.5, it is not necessary to consider the above and secondary matters, but in deference to the request of counsel for the applicant and the Attorney-General, they will be dealt with in general terms.

5. Grounds C, D and G of the application for review were not proceeded with at the hearing and can be dismissed.

Zone intent and compatibility

1. It is difficult to reconcile the conclusion that the amendment neither purported to change the zone intent nor was framed as a specified departure.  The effect of the amendment was to either enlarge the permitted retail activity or provide a specific and identified variation to the permitted use.  It is clear that the amendment differs from the original clause by variation or enlargement of use.  The Commission did not expose its reasoning as to why departure through stated exception or extension of a form of retailing caused clear and incompatible conflict between the two provisions.

2. Ground A of the application to review claims:

   "Athere was an error of law within the meaning of s17(2)(f) of the JRA wherein the Commission determined that 'since the amendment does not include a change to the zone intent, and is not framed as a specified departure, the zone intent still applies and the proposed use is clearly in conflict with it' in that:

   (i)    the amendment was a specified departure which had the effect of subjugating the zone intent to the specified departure or, in the alternative;

   (ii)    the generalised statement of zone intent must be read subject to specific provisions enabling use and development."

3. The Commission rejected the applicant's contention that retail use was limited to an identified range of merchandise in the terms:

   "The Table of Uses 6.2.2 in the TRANSlink INDUSTRIAL zone does not include a shop of any kind in any of the three Areas (sub-zones). The only retail activity provided for is that of a Service Station, which is restricted to 'the sale of associated accessories, parts or the like ...'

   Even in the TRANSlink BUSINESS zone, which might have been seen as a more appropriate location for a large retail centre, the only provisions in the Table of Uses 4.3.2 are a Local Shop, Permitted (with permit) in Area 3, and a Shop (floor area not exceeding 250 sq m). Discretionary in all three Areas."

4. The amendment, cl 6.2.4, either constituted a "change of intent" or amounted to a specified departure.  The question was not whether the clauses differed, but whether the general statements of zone intent in cls 6.2.1 and 6.2.2 ought be read subject to specific provisions in a planning scheme permitting a particular use (Von Witt v Hobart City Council (supra); Krushka v Peacock (supra)).  The amendment permits identified use "notwithstanding the provisions of Clause 6.2.2".  It permits permission notwithstanding that a lesser car parking ratio may be allowed.  It requires cl 6.2.4 to remain subject to the site requirements of cl 6.2.3 and all other relevant provisions of the planning scheme.  It provides that the use and development of the identified project is permitted (with permit) if:

   "3   …

   1it meets the development standards contained in [the] Clause; and

   2it meets all the other requirements of the Scheme."

   and that use is discretionary if:

   "4   …

   A   It does not meet a development standard contained in [the] Clause; or

   BClause 2.6 applies in relation to any other applicable requirement of the Scheme."

5. Clause 6.2.1 of the planning scheme relevantly provides:

   "6.2.1.  zone intent

   (i)The intent of the TRANSlink Industrial Zone is to provide land which can be developed for industrial and commercial uses which serve the strategic needs of Launceston, the Tamar Region and the State, and which would derive a particular benefit from a location having proximity to Launceston Airport, access to the States road and rail network or links to the port of Bell Bay.

   (ii)The primary role of the zone is to cater for storage, transport and industrial uses. A secondary role of the zone is to provide for a limited range of retail or other activity which supports the primary role of the zone or can demonstrate that the location offers a particular strategic advantage."

   while cl 6.2.2 sets out a Table of Uses already set out.  The amending clause, cl 6.2.4, permits a further commercial use limited to the merchandise identified in the Use Definition provision.  It is a departure from the general and, assuming that the term "limited retail" refers only to volume, inferentially changes the original intent.

6. But given the inclusion of the terms of store, warehouse, transport depot, office, vehicle sales, showroom and other terms of permitted or discretionary use, the change is more likely to be one of product or purpose rather than volume.  If that is the case, then the amendment is that of exception or departure.  If the former meaning is given, then it amounts to a change of intent.

7. The Commission defined a question too narrow.  Interpretation required a different answer.

Conflict with retail hierarchy and development strategy

1. The Commission was required by statute to give consideration to issues wider than those considered to be relevant by the Northern Midlands Council.

2. Grounds E and F of the application for review can be considered together.  They state:

   "EThere was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission determined that the amendment was in conflict with the retail strategy for the region when there was no retail strategy for the region.

   FThere was an error of law within the meaning of s17(2)(f) of the JRA in that in the context of the Commission's duty to consider s21(1) of LUPA which require that a planning scheme for an area must have regard for the use and development of the 'region' it took into account an irrelevant consideration, namely the recognition of retail hierarchy in individual planning schemes referred to in evidence and it acted on illusory evidence, having artificially constructed a regional retail strategy from comments in those planning schemes and in an outdated master plan for the region which was never formally adopted and only some unidentified aspects which were still considered to be relevant by councils in the region."

3. The Commission did consider the impact of this form of large centralised retail development on existing shopping areas, in particular the Launceston CBD.  It was entitled to so do in a limited sense.  However it concluded that:

   "Notwithstanding that both the proponents and the representors have offered conclusions on the issue of economic impacts and competition (in the case of the proponents quantified in terms of percentages), the Delegates consider that such conclusions must be regarded as largely speculative, and of little assistance in assessing the amendment.

   … it is not profitable to go beyond a general conclusion that there could be an impact on existing shopping areas and individual outlets, but the extent and application on them cannot be determined, and the 'Gantidis test' cannot be applied."

4. In Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, the High Court propounded the relevant test in terms of planning and business competition as being relevant only when the threat of competition to existing businesses was accompanied by an adverse effect on the extent and adequacy of facilities available to the local community. That approach has been consistently applied by planning tribunals in Tasmania (P Dutton v Glamorgan Spring Bay Council [1996] TASRMPAT 117; Yorktown Square Merchants Association v City of Launceston & RSPCA [1994] TASRMPAT 8; R M & A J Piuselli v Central Highlands Council & D G & C A Cowen [2002] TASRMPAT 14; J R & V Timmons v Circular Head Council & R G Chandler [1994] TASRMPAT 200).  Here the Commission correctly declined to enter the area of speculation.  But the question of the effects of competition remains a mixed one of law and fact.  Law requires that the "local" community be adversely affected and the remainder to be determined on the available evidence. 

5. However the Commission continued with an examination of retail strategy and competition in a different guise, stating its view that:

   "… the main determinant in this matter is the issue of the retail hierarchy in the northern Tasmanian region, and its continued development."

6. It proceeded to examine the planning schemes in surrounding areas in the light of the work of the defunct Tamar Regional Master Planning Authority, an organisation defunct since 1990.  It paid regard to the planning schemes identified by the Northern Midlands Planning Study 1995, the Meander Valley Planning Scheme 1995, the West Tamar Sustainable Development Management Strategy and the Launceston Planning Scheme 1996.  From the contents of those schemes, Mr Brownlie, a planner employed by Gutteridge Haskins & Davey, who had been called as a witness on behalf of the Launceston Chamber of Commerce, had given the Commission his opinion that "the amendment [was] inconsistent with the underlying strategy of the Northern Midlands Planning Scheme and with relevant strategies and policies for the northern Tasmanian region, as recognised by other municipal planning schemes."

7. The Commission rejected arguments advanced by the opponents as to alternate more viable locations, but accepted the evidence:

   "The Delegates accept the evidence that there is scope for the development of additional retail floor space for Homemaker/bulky goods sales, but it is not established that it ought necessarily be provided in one large format centre, or in an out-of-centre location (to use Mr Flanagan's term).  The proponents placed substantial reliance on assertions that Homemaker/bulky goods is a relatively new form of retailing that requires a large aggregation of retail outlets, to provide comparison of merchandise, competition, and competitive pricing. Unless such a centre provided a sufficient range of goods to ensure full comparison, it would merely add to the existing dispersed pattern of retail facilities."

   and found that:

   "A centre which provides sufficient opportunity for comparison to obviate the necessity to visit other outlets must be seen as removing a significant sector of retail activity from the acknowledged regional centre to an out-of-centre location unrelated to other retail activity.  In the Delegates' view, this is clearly contrary to the retailing strategy of the region. "

   Its conclusion on this issue was that:

   "… the amendment provides for uses and development which can be expected to impact adversely on the Northern Tasmanian regional retail hierarchy, and thus be in conflict with planning strategy for the region."

8. The problem lay with the appropriate question.  The Commission was entitled by statute to pay regard to regions and co-ordination of planning schemes within a region.  But it was not entitled, absent evidence (Lark v Nolan [2006] TASSC 12) to form value judgments about potential impact on trading concerns in more distant locations, as part of the planning process. The amendment referred to a commercial enterprise within an industrial zone adjacent to a national airport. The use was akin to others permitted or identified as discretionary. The Northern Midlands Council was entitled to have its own interests advanced through its planning scheme.

9. The Commission was, consistent with Gantidis (supra) to have regard, as a matter of fact, to economic and social impacts on other localities.  Here much of the evidence advanced concerned the impact on the Launceston CBD which the Commission found to be "speculative".  But absent findings open on the evidence and subject to the constraints of Gantidis, it could not translate the issue of fact into a general policy finding of adverse impact. It was not entitled to consider the economic viability of a project within the municipality as a basis for concluding that the proposal was contrary to the intent of an existing planning scheme.  The statement of the Commission on this point is enigmatic.  The reasons state:

   "In relation to the fundamental issue of regional strategy, the Delegates are not persuaded that it has been adequately addressed in formulating the amendment. It is evident that the proposal to amend the Planning Scheme was prompted by an application from a potential developer, but was not subject to independent planning analysis.

   Whilst the need for a major retail facility has been asserted, no case has been made for intervening in the planning strategy which led to the TRANSlink zoning, in order to accommodate it."

10. It was accepted by the parties that the development which would be permitted by the amendment represented a new form of retailing.  It was not appropriate for the Commission to use the wording of other existing schemes, which had not provided for this form of trading, to determine that that policy militated against it.  Accepting that the Commission was entitled to take into account regional schemes and planning strategies, it was required to either find incompatibility on the basis of evidence or at least inquire, not whether existing "retail hierarchies" were inimical to the proposed amendment, but whether such "hierarchies" should yield to accommodate a use not contemplated by them.  The submission by counsel for the Northern Midlands Council during the hearing that:

    "Retail is a constantly changing environment that, from time to time, requires properly investigated and considered amendments to planning schemes in order to serve both developers and consumers.  The Council submits that these changes should be embraced within the legislative framework, and not dismissed as part of a reactionary process."

    was apposite.

11. The question for the Commission was to have considered the appropriateness of the amendment as if it already was in place, with the general statement of intent being read subject to the specific provision or exception (Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306).

12. Grounds E and F have been made out.

Social and economic considerations

1. LUPA, Objective 2(c) of Sch1, required the Commission:

   "to ensure … explicit consideration of social and economic effects when decisions are made about the use and development of land."

   (Kain v Glamorgan/Spring Bay Council (1996) 90 LGERA 326.)

2. The Commission concluded:

   "… that the reliance on private vehicle use associated with the out-of-centre location results in an environmental cost in terms of resource use, and impact on the road infrastructure, and a social cost particularly for non motorists."

3. The competing arguments were centralised location requiring a longer journey by Launceston residents, as against dispersed outlets within the city accessible through public transport providing greater social equity with shorter, but multiple, journeys.  The Commission wisely left analysis of those competing propositions alone, stating:

   "It is not practicable to form a judgement on this comparison of travel as between a single destination trip to TRANSlink, and a multi-stop trip to the CBD, since the latter is not susceptible to the quantifying of a typical example."

4. However, it noted that CBD visits provided a "consequent economy of travel" and was mindful of social equity factors for non-vehicle owners and "employees who had to travel the extra distance".  Those matters appear as factors in the general conclusion reached by the Commission already stated.

5. Ground B of the application for review claims:

   "BThere was an error of law within the meaning of s17(2)(h) of the JRA in that there was no evidence or other material to justify the determination that the reliance on private vehicle use associated with the out of centre location would result in environmental cost in terms of resource use, impact on the road infrastructure and a social cost, particularly for non-motorists."

6. The Judicial Review Act, ss17(2)(h) and 21, provides:

   "(2)   The application may be made on any one or more of the following grounds:

   (h)   that there was no evidence or other material to justify the making of the decision."

   "21      Decisions without justification – establishing ground

   The ground mentioned in section 17(2)(h) and section 18(2)(h) is taken not to be made out ¾  

   (a)   unless ¾  

   (i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and

   (ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

   (b)   unless ¾  

   (i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

   (ii)the fact did not or does not exist."

7. The Commission was correct in its conclusion first stated and courageous in venturing into a more general finding (Lark v Nolan (supra)).  But in the context of the whole of the decision, it was of little import and attracts the attention of s21.  I would not have upheld the application on this basis alone.

Defect in form

1. Ground H states:

   "H There was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission determined that there were a number of defects in respect of the draft amendment but failed to exercise its jurisdiction by considering modifications or alterations to a substantial degree to the draft amendment pursuant to s41(a) or (ab) of LUPA."

2. The Commission was entitled to modify or alter the terms of the amendment, but not required to do so, LUPA, s41A, which provides:

   "41A    Direction to undertake modification or alteration of draft amendment

   (1) If a draft amendment is required to be modified, or altered to a substantial degree, under section 41(a), the Commission, by notice in writing to the planning authority, must ¾

   (a)direct that it undertake the modification or alteration; and

   (b)specify the manner in which the draft amendment is to be modified or altered.

   (2)   A planning authority must undertake a modification, or an alteration to a substantial degree, to a draft amendment in accordance with a direction by the Commission under subsection (1) and submit the modified or altered amendment to the Commission within 28 days from the receipt of that direction or such longer period as the Commission may allow.

   (3)   The period referred to in section 42(2) does not run after a direction to modify or alter the draft amendment has been made until the period referred to in subsection (2) of this section expires."

   (See generally R v Resource Planning and Development Commission; ex parte Stevens (1999) 103 LGERA 181.) Given its other findings, it was not appropriate for it to reconsider the original draft or make suggestions of matters which might render it acceptable. The Commission referred to the further modifications made either before the hearing or advanced in its course. It found that notwithstanding those modifications there remained defects, primarily the proposed area for the complex of 30,000 sq m. It regarded the expectation of a large complex as being against the existing planning scheme as a whole and concluded that absent precise information concerning the make-up of the components of the complex "Since it is proposed to confer Permitted status on any development which complies with the requirements, it is essential that the terms of the amendment be as unambiguous as possible, clearly codifying the intention and expectation of the Council in effecting the amendment." Given other conclusions reached by the Commission, that approach was understandable. It was not its responsibility to suggest further modifications.

3. Ground H is not made out.

Conclusion

1. I would uphold grounds A, E and F of the application.  Grounds C, D, G and H will be dismissed.  It is not necessary to determine ground B.

2. Counsel are invited to consider these reasons and appropriate dispositions.

Annexure

"Assessment of the Amendment and Permit under Schedule 1 Objectives

(Part I)

(a)to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity;

Comment: The proposal is not in conflict with this objective. Any impact on resources, processes and diversity would be assessed in relation to subsequent development; the amendment merely adds to the use classes which can be considered.

(b)to provide for the fair, orderly and sustainable use and development of air, land and water;

Comment: Whilst there is no formally adopted regional retail strategy, there is a recognised retail hierarchy in the region. Insofar as the amendment is in conflict with this hierarchy it does not provide for orderly development.

(c)       to encourage public involvement in resource management and planning;

Comment: The proposal has been through the processes of public exhibition, representations, and a public hearing.

(d)to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b), and (c);

Comment: The amendment per se is neutral in relation to economic benefit.

(e)to promote the sharing of responsibility for resource management and planning between the different spheres of government, the community and industry in the State;

Comment: The proposal has involved the business sector as proponent, local government as the Planning Authority, the community as representors and the State Government as the final assessment body.

(Part 2)

(a)to require sound strategic planning and co-ordinated action by state and local Government;

Comment: The amendment owes more to a response to a foreshadowed development application than to strategic considerations, and has been conceived unilaterally rather than by the co-operation deserving of a proposal with regional ramifications.

(b)to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land;

Comment: The amendment has been processed through the Planning Scheme mechanism.

(c)to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

Comment: The use for which the amendment provides will have social and economic effects as noted in the foregoing references, but the extent of the impacts will depend on the specifics of any development which results from the amendment.

(d)to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional, and municipal levels;

Comment: The proposal is not seen to be integrated with municipal and regional planning and development strategies.

(e)to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals;

Comment: Not relevant to the amendment.

(f)to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania;

Comment: Not relevant to the amendment.

(g)to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

Comment: Not relevant to the amendment.

(h)to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

Comment: By providing for facilities which are in conflict with regional strategy, the amendment fails to satisfy this objective.

(i)to provide a planning framework which fully considers land capability;

Comment: Not relevant to the amendment.

Application of State Policies
State Coastal Policy 1996

This Policy is not applicable to the amendment.

State Policy on the Protection of Agricultural Land. 2000
The sections of the Policy which are considered to be relevant to the amendment are:

2.2    To foster the sustainable development of agriculture in Tasmania by:

(a)   Enabling farmers to undertake agricultural activities without being unreasonably restrained by conflicts with adjoining non-agricultural land users; and

(b)   Adjoining non-agricultural use and development should not unreasonably fetter agricultural uses.

The site is adjacent to RURAL zoned land. Ms Duckett contended that the implications of an agricultural activity which resulted in noise, odour, crop spray or other activities which customers may find perturbing could be of financial consequence for retailers. She considered it was conceivable that the presence of a commercial activity, and expectations of people using the site would restrict or fetter the agricultural use of the land, more than the current industrial use of the land would, and thus present a potential conflict with the State Policy on the Protection of Agricultural Land.

For the applicant it was submitted that the subject land is classified as Class 4, it is not irrigated, and is not important for agricultural use.

In the Delegates' view, the site itself has been alienated from agricultural use by its current industrial zoning and adjacent uses. If any measures are required to obviate or mitigate potential conflict with the adjoining rural land, they should be addressed at the stage of development approval, in accordance with the requirements of the Policy.

It is concluded that there is no conflict with the Policy.

State Policy on Water Quality Management 1997
This Policy is not applicable to the amendment, but should be addressed in relation to any resultant development."