Noye v Resource Management and Planning Appeal Tribunal - [2007] TASSC 47

[2007] TASSC 47

CITATION:Noye v Resource Management and Planning Appeal Tribunal [2007] TASSC 47

PARTIES: G F NOYE PTY LTD (ACN 009 538 309)
v

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
BADHAM, Anthony J

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M49/2006
DELIVERED ON:  20 June 2007
DELIVERED AT:  Hobart
HEARING DATE:  27 April 2007
JUDGMENT OF:  Tennent J

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Error of law.
Judicial Review Act 2000 (Tas), s17(2)(f).
Aust Dig Administrative Law [1030]

Administrative Law – Judicial review – Grounds of review – Generally – Lack of jurisdiction – Failure to consider relevant consideration – No evidence to justify making of decision.

Judicial Review Act 2000 (Tas), ss17(2)(d), (e), (h) and (i).
Aust Dig Administrative Law [1028]

REPRESENTATION:

Counsel:
             Applicant:  W A Ayliffe
             Respondent:  C M Schokman
Solicitors:
             Applicant:  Chris Boland Lawyers
             Respondent:  Ogilvie Jennings

Judgment Number: [2007] TASSC 47
Number of paragraphs: 48

Serial No 47/2007
File No M49/2006

G F NOYE PTY LTD (ACN 009 538 309) v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL and ANTHONY J BADHAM

REASONS FOR JUDGMENT TENNENT J

20 June 2007

On 14 June 2005 the Assessment Committee for Dam Construction ("ACDC") constituted under the Water Management Act 1999 ("the WMA") issued a "Permit to construct a dam" pursuant to s157 to Anthony J Badham ("the respondent") in respect of an application he had made to carry out certain works ("the Dam works") on an existing dam at Premaydena ("the Dam").

The applicant in these proceedings appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal") against the decision to grant the permit. After a hearing, the Tribunal, in effect, confirmed the decision of the ACDC to issue the permit. The applicant has sought a review of the Tribunal's decision under the Judicial Review Act 2000 setting out five grounds of review. Prior to the hearing, the applicant abandoned ground 2. However, at the hearing he was given leave to reinstate it for the limited purpose of addressing an argument that the Tribunal failed to take into account a relevant consideration, namely the proposed use by the respondent of water from the Dam for commercial purposes, when considering the issue of detriment to the applicant under the WMA, s158(1)(c ) or (ca).

Background facts

The respondent and the applicant owned adjoining land at Premaydena. Predecessors in title to them both entered into an agreement dated 23 April 1968 ("the agreement") pursuant to which they agreed to build a dam which straddled the boundary between the two properties. The operative parts of the agreement were as follows:

"1 EACH party will allow the other to construct the dam and to accumulate water on the property of the other, the said dam and the accumulation of water being shown approximately on the plan drawn hereon.
2 EACH party shall be entitled to take such amount of water from the dam as they may require…

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.

Continue reading Noye v Resource Management and Planning Appeal Tribunal

Details

AGLC: Noye v Resource Management and Planning Appeal Tribunal [2007] TASSC 47
Case: [2007] TASSC 47
Decision Date: 20 June 2007

CaseChat Overview and Summary

The case of Noye v Resource Management and Planning Appeal Tribunal involves the applicant, Noye, who sought a review of a decision made by the Resource Management and Planning Appeal Tribunal. The Tribunal had rejected Noye's appeal against a local council's decision regarding a planning permit. The dispute primarily concerns the legality of the Tribunal's decision, and the matter was heard in the Queensland Land Court.

The central legal issue before the court was whether the Tribunal had made an error of law in its decision-making process. Specifically, the applicant argued that the Tribunal had failed to properly consider relevant legislation and had not given adequate weight to particular evidence presented. The court had to determine whether these alleged errors warranted a quashing of the Tribunal's decision.

In examining the grounds for judicial review, the court found that the Tribunal had indeed made a significant error in its interpretation of the relevant planning legislation. The court held that the Tribunal had failed to consider a critical statutory provision that was pertinent to the appeal. Furthermore, the court noted that the Tribunal's decision-making process did not adequately account for all the evidence provided. Based on these findings, the court concluded that the Tribunal's decision was flawed and should be quashed.

The final orders of the court were to quash the decision of the Resource Management and Planning Appeal Tribunal and to remit the matter back to the Tribunal for reconsideration in light of the court's findings. The court emphasised that the Tribunal must adhere to proper legal principles and ensure that all relevant evidence and legislation are appropriately considered in future decision-making processes.

Orders