Peacock Darcey & Anderson Pty Ltd v Resource Management and Planning Appeal Tribunal
[2016] TASSC 37
•28 July 2016
[2016] TASSC 37
COURT: SUPREME COURT OF TASMANIA
CITATION: Peacock Darcey & Anderson Pty Ltd v Resource Management and Planning Appeal Tribunal [2016] TASSC 37
PARTIES: PEACOCK DARCEY & ANDERSON PTY LTD
trading as PDA Surveyors
v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
KINGBOROUGH COUNCIL
FILE NO: 1497/2016
JUDGMENT
APPEALED FROM: PDA Surveyors v Kingborough Council [2016] TASRMPAT 08
DELIVERED ON: 28 July 2016
DELIVERED AT: Hobart
HEARING DATE: 16 June 2016
JUDGMENT OF: Tennent J
CATCHWORDS:
Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Generally – Application to extend time within which to bring an appeal to the Tribunal – Application dismissed – Assertion that Tribunal in making its decision misdirected itself as to its function and failed to afford procedural fairness to appellant.
Resource Management and Planning Appeal Tribunal Act1993 (Tas), ss 13, 25.
Aust Dig Environment and Planning [595]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine SC
Respondent: N/A
Solicitors:
Appellant: Shaun McElwaine + Associates
Respondent: N/A
Judgment Number: [2016] TASSC 37
Number of paragraphs: 58
Serial No 37/2016
File No 1497/2016
PEACOCK DARCEY & ANDERSON PTY LTD trading as PDA SURVEYORS v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL, KINGBOROUGH COUNCIL
REASONS FOR JUDGMENT TENNENT J
28 July 2016
This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal (the Tribunal), constituted by a single member, made on 18 May 2016, by which the Tribunal dismissed an application to extend the time within which the appellant could appeal a decision of the Kingborough Council (the Council) in relation to the grant of a permit for a subdivision. Both the Council and the Tribunal have filed notices of submission and the Attorney-General has declined to intervene. The hearing therefore proceeded on the basis of submissions from counsel for the appellant alone. The appeal has been brought in the name of Peacock Darcey & Anderson Pty Ltd trading as PDA Surveyors because that entity was the initial applicant for the permit. The hearing was however conducted by counsel for the present owner of the land, the subject of the permit, because it has the benefit of the permit.
The Tribunal's file in this matter was before the Court at the hearing.
The history
On 27 October 2014, the Council granted a permit for a subdivision of land at 63 Spring Farm Road, Kingston. The applicant for that permit was Peacock Darcey & Anderson Pty Ltd trading as PDA Surveyors, now the appellant. The application was made on behalf of the then registered owners of the land. Absent substantial commencement, the permit was valid for two years. Any appeal to the Tribunal in respect of that permit was required to be made to the Tribunal within 14 days of its grant. No such appeal was lodged.
No work commenced in relation to the subdivision. The land was sold late in 2015 with the benefit of the permit. Kingston Spring Farm Pty Ltd (the Owner) became the registered proprietor on 25 November 2015. The Owner paid a premium price for the land with the benefit of the permit and wished to undertake the subdivision authorised by the permit. However, two particular conditions in the permit have given rise to a dispute between the Owner and the Council as the planning authority. They are conditions 16 and 20.
Conditions 16 and 20 of the permit respectively provided:
"16Prior to Start of Works for all stages, a revised Restoration Plan for Whitewater Creek must be developed for the 7.8 hectare riparian corridor in collaboration with Council. This Whitewater Creek Restoration Plan must be to the satisfaction of the Manager Development Services and demonstrate that it:
(a)incorporates a revised revegetation plan that achieves the maximum level of restoration possible while minimising bushfire hazard through:
(i) the establishment and maintenance of multiple copses of native vegetation on both sides of the creek between patches of existing vegetation up to 0.25ha in size and a minimum of 20m wide and 20m apart; and
(ii) the establishment and maintenance of native vegetation on both sides of the creek adjacent to existing native vegetation within the riparian corridor; and
(iii) adoption of best practice revegetation techniques, including species selection, establishment, mulching, protection and ongoing maintenance; and
(iv) providing for a firebreak a minimum of 10m wide between the revegetated areas of the riparian corridor and the adjacent lots; and
(v) achieving planting densities of around 150 trees/hectare and adequate understorey plants to provide habitat and minimise erosion; and
(vi) incorporation of the 1.65 hectare offset for the loss of the Eucalyptus viminalis grassy forest; and
(vii) providing space for recreational access and a future multi-use track; and
(b)incorporates an erosion control plan developed by a suitably fluvial geomorphologist that:
(i) demonstrates how the risk of stream bank and stream bed erosion will be minimised during and after willow removal; and
(ii) details the method of willow control and the location, design and costs of any necessary erosion control structures; and
(iii) is consistent with DPIPWE's Wetlands and Waterways Works Manual; and
(c)incorporates the recommended weed management measures in the Weed Management and Native Rehabilitation Plan (Tasflora, 2014), subject to any necessary changes in willow control techniques to enable implementation of the erosion control plan; and
(d)provides for future recreational uses, including future multi-use tracks and public access to the riparian corridor; and
(e)minimises encroachment and associated impacts from adjacent residential lots; and
(f)takes into consideration the design and location of bio-retention swales and flood mitigation measures; and
(g)includes a fully costed implementation, maintenance, monitoring and reporting plan for a minimum of five years (including actions, methods, timeframes and costs); and
(h)provides details on which actions require implementation prior to the sealing of the Final Plan of Survey and transfer of the land to Council for each stage.
All costs for developing and implementing the Restoration Plan for Whitewater Creek must be borne by the developer.
…
20Prior to Start of Works for all stages, a revised Bushfire Hazard Management Plan must be submitted. This plan must be to the satisfaction of the Manager Development Services and demonstrate bushfire hazard management areas consistent with AS3959-2009 can be contained within lot boundaries for all lots which are bushfire hazard prone as defined in the Kingborough Planning Scheme 2000 or which may become bushfire prone as a result of the revised restoration plan and the revised subdivision plan retaining the area of Eucalyptus amygdalina forest and woodland on sandstone."
Both conditions begin with the words "Prior to Start of Works". Condition 16 required the Owner to develop a revised restoration plan for Whitewater Creek in collaboration with the Council. That plan had to be to the satisfaction of the Manager Development Services and demonstrate a number of identified things. Condition 20 required a revised bushfire hazard management plan which was also required to be to the satisfaction of the Manager Development Services and demonstrate a number of things. Neither the permit nor those particular conditions contained any means of resolution of any differences between the Owner and its representatives and the Manager Development Services which might arise in respect of what was required to satisfy those conditions.
The Owner commissioned appropriate entities to prepare the relevant plans and they were duly prepared. Prior to their being formally submitted to the Council, discussions took place between various experts engaged by the Owner and Council officers to ensure satisfactory compliance with both conditions. Those discussions revealed differences between the Owner and the Council as to what constituted compliance with the conditions.
In the circumstances, under cover of a letter dated 21 December 2015, counsel for the Owner submitted copies of the two plans which the Owner's experts had prepared. They contained a number of options for compliance. A lengthy response was sent by the Council on 7 January 2016 acknowledging protracted discussions and commenting at length on the reports and the options presented. There remained a dispute between the parties. Against that background, if the Owner wished to proceed with the subdivision, the only ways to resolve the impasse between the Council and the Owner were for the Owner to accept what the Council wanted, or for the Owner to appeal the grant of the permit and have the Tribunal determine the matters in dispute.
On 11 February 2016, counsel for the Owner advised the Council that he was instructed to institute an appeal to the Tribunal. On the same day, a notice of appeal in respect of the grant of the permit subject to conditions or restrictions granted on 27 October 2014 was lodged. Any such appeal, by reference to the Act, should have been filed in November 2014. The grounds of appeal were in the following terms:
"1Condition 16 of the planning permit is unreasonable and/or impracticable in that in order to have effect agreement must be reached with the planning authority in circumstances where agreement has not been reached and there is no mechanism expressed in the condition to resolve differences between the person who has the benefit of the permit and the planning authority;
2Condition 16 of the planning permit is unreasonable and ought not to have been imposed in the form in which it has been expressed in that its operation is inconsistent with condition 20 of the planning permit;
3Condition 20 of the planning permit is unreasonable and/or impracticable in that, in the events which have happened, the satisfaction of the Manager of Development Services has not been achieved, despite the submission of a compliant bushfire hazard management plan and the condition contains no default mechanism to resolve disputes between the person who has the benefit of the planning permit and the Manager of Development Services of the Planning Authority;
4Each condition ought to be replaced with a condition which endorses, as part of the planning permit, a bushfire management planning report and a restoration plan for Whitewater Creek, which has been submitted to the planning authority but which has not been accepted as complying with the requirements of the planning permit."
Also filed that day was an application to extend the time within which the appeal could be brought. That application was pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 (the Act), s 13(2). Section 13 relevantly provided:
"13 Institution of appeals to the Appeal Tribunal
(1) ….
(2) The Appeal Tribunal may, on written application by a person, extend the time for the institution of an appeal by the person to the Appeal Tribunal.
(2A) The Appeal Tribunal, when considering whether to extend the time for instituting an appeal under section 61 of the Land Use Planning and Approvals Act 1993, must take into account –
(a)the reason why the appeal was not lodged within the period specified in subsection (1); and
(b)the time which has elapsed since the end of the period specified in subsection (1) and whether it would be reasonable to expect that the application to extend the appeal could have been lodged before the date on which it was lodged; and
(c)the extent and cost of any work which has been undertaken in accordance with a permit, referred to in the Land Use Planning and Approvals Act 1993, after the expiry of the period specified in subsection (1); and
(d) any other matter that it considers appropriate.
(3) The time for instituting an appeal to the Appeal Tribunal may be extended even though the time has ended."
By letter dated 15 February 2016, the Acting Registrar of the Tribunal advised counsel for the Owner as follows:
"Before this matter can be listed for a directions hearing submissions in support of that application should also accompany the application. Upon receipt of those submissions Council will be given an opportunity to respond.
In the event there are any objections/submissions, the Appellant is afforded a final right of response of 48 hours. If any disputed facts are identified in the material submitted, the parties are on notice that a hearing may be required to resolve any factual disputes.
Once all material has been submitted the Tribunal will proceed to determine the application for an extension of time."
On 24 February 2016, counsel for the Council, Mr Armstrong, advised counsel for the Owner that the Council would consent to the application to extend time and would co-operate to bring the matter on for hearing to "resolve the situation which has developed". He also said that he looked forward to receipt of the foreshadowed affidavit and submissions, and then said, "although the latter may perhaps be abbreviated in the light of the Council's consent".
An affidavit by Dean Cocker, the Owner's representative, was sworn on 1 March 2016. Under cover of a letter dated 4 March, counsel for the Owner sent that affidavit to the Tribunal and made submissions relating to the application to extend time. The submissions were as follows:
"What follows are my submissions in support of the application pursuant to section 13(2) of the RMPAT Act 1993.
The jurisdiction to extend time is expressed at section 13(2) of the Resource Management & Planning Appeal Tribunal Act 1993. Section 13(2A) lists a number of mandatory, and ultimately non-exclusive, factors which the Tribunal must take into account. Assuming familiarity with these provisions, it is unnecessary to set them out.
The first matter which the Tribunal is required to consider is the reason why the appeal was not lodged within the specified time of 14 days after the decision of the respondent to grant the planning permit on 27 October 2014?
The reasons are set out at paragraphs [3-18] of the affidavit of Mr Cocker. The current landowner, which has the benefit of the planning permit, did not complete the contract of sale until 30 October 2015 and did not become the registered proprietor until 25 November 2015. It is axiomatic that the planning permit runs with the land and is now for the benefit of the current registered proprietor. The contract of sale was signed on 3 September 2015. The purchase price was $16M. Clause 1(a)(i) of the contract defines the word 'Approvals' as meaning the planning permit granted by the council for the subdivision of the land. By clause 16(xvii) of the contract the purchaser was not entitled to raise any requisition in relation to the planning permit. The reason for this is explained in the affidavit of Mr Cocker at [6-7]. The current landowner was aware of the permit and specifically entered into the contract on the basis of it as substantially enhancing the value of the land. The current owner paid a premium over and above the usual purchase price which would have applied, absent the grant of the planning permit.
No issue was taken with the conditions of the planning permit by the former owner for the reasons set out at paragraph [18] of the affidavit of Mr Cocker. No issue was taken by the current landowner with the conditions of the permit for the reasons set out at paragraphs [8-17] of the affidavit of Mr Cocker until 7 January 2016. In accordance with the evidence of Mr Cocker at [16] of his affidavit it was not until that date that the current landowner became aware of the three issues with the drafting of the planning permit conditions, and/or their operative effect.
Thereafter, and somewhat promptly in the circumstances, a notice of appeal was formulated and lodged with the Registrar of the Tribunal on 11 February 2016.
This is not a case where it was apparent, either obviously or upon reasonable investigation, from the date of grant of the planning permit that there was or was potentially an inconsistency contained within it relating to simultaneous compliance with conditions 16 and 20. Nor, in the circumstances, was there any reason to think that the council would not grant, in the usual way, subsequent endorsement to the submitted plans required by each of those conditions until receipt of the council's correspondence of 7 January 2016.
Accordingly, there is a perfectly valid reason why the appeal was not lodged within the statutory time period.
The second issue is whether it would be reasonable to expect that the application to extend the appeal could have been lodged before the date on which it was? A similar requirement applies to the Commonwealth AAT in accordance with section 29(7) of the Administrative Appeals Tribunal Act 1975. Recently, Porter J in the Full Court observed that it is helpful to examine the 'body of law referable to the AAT' in examining the source and nature of similar powers which are invested in the Tribunal.
As might be expected there is a relatively large body of jurisprudence which is concerned with the exercise of the power invested in the AAT to grant extensions of time. Attention is drawn to the decision of the Full Court of the Federal Court in Comcare –v- A'Hearn. It is to be noted that section 13 of the RMPAT Act does not specify that an acceptable explanation must be given for delay. What is required is a reason for delay and then whether it would be reasonable to expect that the application to extend time could have been lodged before time expired. Of this type of provision the Full Court observed:
'We note that the Tribunal used language that might be taken to suggest that it is a precondition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition: Dix –v- Crimes Compensation Tribunal [1993] 1 VR 297 at 302 …'
It is submitted that the same principle is to be applied to the exercise of the discretion which is invested in the Tribunal pursuant to its legislative scheme.
One notes an earlier decision of the Tribunal in Boardman –v- Clarence City Council where the Tribunal refused an application to extend time because it did not have evidence upon which it could make findings as to the reason why the appeal was not lodged within the statutory time period. The Tribunal in its reasoning drew attention to the decision of McHugh J in Brisbane South Regional Hospital Authority –v- Taylor where his Honour reasoned that an applicant for an extension 'still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.'
Plainly this is also relevant to the question of reasonableness which is confined to a consideration of whether the appeal could have been lodged within the statutory time period. In this case the reason is plain. There was no need to on the part of the original applicant for the permit or the successive landowner. The inconsistency between the conditions was not exposed until 7 January 2016. In any event it was not thought that the council would fail to approve the submitted plans until the council's advice of 7 February 2016. At that point, even in the absence of inconsistency, it became necessary to lodge an appeal because there is no mechanism in the permit for the resolution of disputes between the council and the landowner concerning satisfaction of the requirements of each of the permit conditions.
In an earlier decision in the matter of Hobart Properties & Securities –v- Sullivans Cove Waterfront Authority, the Tribunal in an application where this requirement had not been addressed, nonetheless concluded 'in the Tribunal's view it is reasonable to expect that an application could have been made much earlier and much earlier than even the date upon which the appeal was lodged.' Regrettably that decision does not expose the factual basis for this finding and nor does the Tribunal state the facts upon which it relied in order to found this conclusion. That being so the observations which follow at paragraph [12] are, with respect, of somewhat diminished weight. Whilst it is true that the planning legislation 'establishes a regime in which swift and informed decision-making is to occur', the requirement at subparagraph (b) is directed to the question of reasonableness, in the particular facts and circumstances of individual cases, as to why an appeal was not lodged within the initial statutory timeframe. With respect to the reasoning of the Tribunal in this case, it is not a question of swift and informed decision-making as a general proposition. The statutory provision requires that attention be focused upon whether it was reasonable for the individual appellant to initially lodge an appeal within time.
Once this is exposed as the correct question, the answer in this case is self-evident: it was not reasonable because the question of inconsistency did not arise until 7 January 2016 and moreover the question of an absence of a default mechanism to resolve a dispute, did not arise until 7 January 2016.
The next matter which is required to be considered is the extent and cost of any work undertaken in accordance with the permit. That matter is of no present relevance: the permit has not yet been acted upon because the conditions precedent which must first be satisfied have not been met.
The final matter is a broad one: any other matter which the Tribunal considers appropriate in the circumstances. The usual list of factors which one takes into account include at least:
·the relative merit of the case which the applicant seeks to articulate. One however needs to be careful with this factor. There is no obligation to engage in some form of pre-hearing determination. Prima facie in this case the grounds of appeal raise issues of significant merit which are concerned with the drafting and operation of each of the conditions and accordingly go to the question of its reasonableness;
·whether there is a significant issue to be determined. That is clearly so in this case, especially where the subdivision approved of by the permit is a very extensive one and the Tribunal may infer is of great value to the current landowner;
·the question of potential financial loss. Here that question is of great importance. The evidence establishes that the present landowner paid a premium for the land on the basis of a permit which may be acted upon;
·prejudice to the respondent or any other persons affected by the decision. The respondent is the Kingborough Council. It does not oppose the application to extend time. Potentially there may have been persons who made representations to the council and which representations have informed the council's decision-making. It is impossible for the present appellant to know whether such representations were made or whether they were taken into account. There is no statutory requirement that the content of representations must be made available to an applicant for a permit. This matter really cannot be taken any further beyond the general observation that if the Tribunal extends time then any persons who made a representation be invited (the Tribunal could give a direction to the council) to participate in the hearing of the appeal by making an application to be parties to it but noting that the real issue is as between the appellant and the planning authority and is confined to the operation of two identified conditions in the planning permit. In this regard it is very significant, in the present context, that no third party representor filed an appeal to the Tribunal against the grant of the permit or in relation to any of the conditions expressed in it;
·prejudice to the appellant. Prejudice to the appellant is obvious. The current permit may expire, absent an extension, in October 2016. It has not been acted upon and cannot be acted upon until the present impasse is resolved. The land is extensive, the purchase price paid was very significant and the Tribunal may safely infer that the cost of undertaking the subdivision be very substantial.
It is not suggested that this list is exhaustive. In general terms it has been drawn from the inferential decision of Wilcox J in Hunter Valley Developments Pty Ltd –v- The Minister for Home Affairs and the Environment.
In all of the circumstances it is submitted that, despite the very significant period of delay, it is appropriate to exercise the discretion to extend time."
By letter dated 7 March 2016, the Acting Registrar advised both counsel for the Owner and the Council in the following terms:
"The Tribunal has received an application to extend time within which to file the appeal. I understand a copy of the documentation has been provided to Council.
If Council wish to file any submissions with respect to the application to extend time, such submissions should be filed by no later than 5pm on Tuesday, 15 March 2016.
In the event there are any objections/submissions, the Appellant is afforded a final right of response of 48 hours. If any disputed facts are identified in the material submitted, the parties are on notice that a hearing may be required to resolve any factual disputes.
Once all material has been submitted in the timeframes set out above, the Tribunal will proceed to determine the application for an extension of time."
On 15 March, Mr Armstrong replied in the following terms:
"I refer to your emailed letter of 7 March 2016.
I confirm that Kingborough Council does not oppose the granting of an extension of time for lodging an appeal in respect of this matter.
However, there are factual matters in the affidavit of Mr Cocker which are disputed. These are set out in the attached document.
The correspondence referred to in that document can be accessed in the following Dropbox link:
you require those documents in a different format or have difficulty in accessing the Dropbox, please let me know and [sic] will make the appropriate arrangements.
I have copied this email to Mr McElwaine and will await his response in accordance with your previous directions."
Attached to Mr Armstrong's email was a four page document. It was headed "Factual matters in dispute". Underneath that heading were the words "The following clauses of the Affidavit by Dean Cocker are disputed". There followed three paragraphs which contained what is assumed to be the Council's reasons for why it disputed identified paragraphs in Mr Cocker's affidavit. The rest of the document listed correspondence between various parties involved in this dispute between December 2014 and 7 January 2016.
The Registrar of the Tribunal responded to both parties by letter dated 23 March. He said:
"The Tribunal has received a response from Mr Armstrong dated 15 March 2016 on behalf of the Respondent Council. The Tribunal has reviewed the contents of the Dropbox referenced by Mr Armstrong. The requirement for the Tribunal to print that quantity of material is onerous. The Council is directed to provide a hard copy to the Tribunal as soon as practicable. There has been no further response from the Applicant for the extension of time as allowed under the Tribunal's Practice Directions. Upon receipt of the hard copy of the documents, the material will be forwarded to a Presiding Member of the Tribunal for determination."
Counsel for the Owner wrote to the Tribunal and Mr Armstrong on 23 March responding to Mr Armstrong's email of 15 March. He said the following:
"First, the document titled 'factual matters in dispute' appears to have been prepared by an unidentified employee of the council. If the council seeks to rely upon factual matters in relation to the exercise of the discretion to extend time (which is by no means clear), then the obligation of the council is to identify a proper officer who is prepared to swear or affirm an affidavit which sets out, in an admissible way, those factual matters. Unless the council approaches the task in this way no account ought properly be taken of the asserted factual matters upon which the council seeks to rely. This is a basic matter of procedural fairness: most notably if this procedure is adopted then disputed factual matters will be able to be resolved in the orthodox way, most probably upon a preliminary hearing before the Tribunal.
Secondly, my client disputes the factual matters characterised by the council as 'in dispute'. Unless the council is prepared to verify these matters by an affidavit, then there is no mechanism available to the Tribunal whereby the disputes may be properly identified, tested by cross-examination and then resolved by a determination of the Tribunal.
Fourthly, the matters which the council seeks to raise in this document appear to go to the question of the merits of the appeal grounds which the appellant seeks to agitate before the Tribunal. If that is so then, somewhat obviously, in the event that an extension of time is granted, then the council will have a fair opportunity to agitate these matters by witness statements upon a contested hearing before the Tribunal. It may well be that the council officer who prepared this document fundamentally misunderstands the difference between an application to extend time and then, if that discretion is successfully engaged, an appeal to the Tribunal which will focus upon each of the grounds of appeal.
Finally, and for all of these reasons, the council ought not be permitted to rely upon this material unless it is the subject of an affidavit which in an orthodox manner sets out the evidence upon which the council relies which evidence may be tested at a hearing before the Tribunal and upon which the Tribunal may then make findings of fact which are relevant to the exercise of its discretion to extend time."
On 24 March 2016, the Registrar of the Tribunal responded saying:
"The Tribunal notes the provision of further submissions from Mr McElwaine received on 23 March 2016. Notwithstanding those submissions being filed outside the ordinary timeframe, the reasons provided warrant an extension. The material will be placed before the relevant presiding member for the purposes of determining the application to extend time. That consideration will also extend to the matters raised in Mr McElwaine's correspondence regarding methodology."
The next day Mr Armstrong sent an email to the Tribunal and counsel for the Owner in the following terms:
"I am instructed to advise as follows:
1 The Council confirms that it does not oppose the extension of time to appeal.
2The Council notified the areas of factual dispute so that it would not be thought that there was agreement with everything put forward in the affidavit of Mr Cocker.
3The Council does not press for the resolution of the factual disputes as part of the consideration of the application to extend time, but will provide further information to the Tribunal in whatever form it directs if the Tribunal determines that it does wish to resolve the factual disputes at this stage.
I await the Tribunal's ruling on how it wishes to deal with this matter."
On 18 May 2016, without any further recourse to either counsel for the Owner or Mr Armstrong, the Tribunal made a decision by which it dismissed the application to extend time. The decision was in the following terms:
"Introduction
1 This application concerns a planning permit that was granted on 27 October 2014 for a staged subdivision of land into 290 lots and 8 public open space lots at 63 Spring Farm Road, Kingston. On 11 February 2016, Mr McElwaine, counsel for the Appellant, made an application pursuant to s13(2) of the Resource Management & Planning Appeal Tribunal Act 1993 (RMPAT Act) for an extension of time to lodge an appeal. In an email dated 24 February 2016, Mr Armstrong, counsel for the Kingborough Council, advised Mr McElwaine that Council consented to the application to extend time and 'will cooperate to bring this matter on for hearing to resolve the situation which has developed'.
2 In support of the application to extend time an affidavit was filed by Dean Cocker, managing director of the JAC Group which includes the corporation known as Kingston Spring Farm Pty Ltd (the Developer). The affidavit discloses that the Developer is the registered proprietor of the subject land by virtue of a transfer registered on 25 November 2015. The former registered proprietor had engaged the present Appellant, PDA Surveyors, as its agent and applicant in relation to the development application to subdivide the land in 290 residential allotments together with public open space, associated highways and infrastructure.
3 Annexures to Mr Cocker's affidavit include a copy of the development permit, dated 5 November 2014, the Agreement of Sale dated 3 September 2015, amended conditions following the discovery of a clerical error in the numbering, a copy of the Creek Restoration Plan dated 18 December 2015, Bush Management Planning Report dated December 2015, letter from Mr McElwaine to Mr Garry Arnold, General Manger, Mr Arnold's response to Mr Cocker, advice dated 11 February 2016 from Mr McElwaine to Mr Arnold advising of instructions to pursue an appeal to the Tribunal, Mr Armstrong's email to Mr McElwaine dated 24 February 2016 advising of Council's consent to an application to extend time to appeal.
4 The provisions relating to the institution of appeals to the Tribunal are contained within s13 of the RMPAT Act. Subsection (1) provides that an appeal must be in writing and made within fourteen days after the making of the decision appealed against and refers to the enactment conferring relevant jurisdiction on the Tribunal. Pursuant to s61 of the Land Use Planning & Approvals Act 1993 (LUPAA) an appeal against a planning permit must be made within 14 days from the day of which notice of the granting of the permit was served.
5 Subsection 13(2A) sets out the factors the Tribunal must take into account in considering whether to extend the time for instituting an appeal under s61 of LUPAA. They are as follows:-
13(2A) The Appeal Tribunal, when considering whether to extend the time for instituting an appeal under section 61 of the Land Use Planning and Approvals Act 1993, must take into account –
(a) the reason why the appeal was not lodged within the period specified in subsection (1); and
(b) the time which has elapsed since the end of the period specified in subsection (1) and whether it would be reasonable to expect that the application to extend the appeal could have been lodged before the date on which it was lodged; and
(c) the extent and cost of any work which has been undertaken in accordance with a permit, referred to in the Land Use Planning and Approvals Act 1993, after the expiry of the period specified in subsection (1); and
(d) any other matter that it considers appropriate.
6 Council's consent is not a determinative factor but may be considered under subsection (d) as any other matter that the Tribunal considers appropriate.
Background
7 The circumstances that have given rise to this application for an extension of time are unusual. The application is made by PDA Surveyors, who acted as the agent of the former registered proprietor named in the Agreement for Sale and the applicant for the development permit. Paragraph 16(b)(xvii) of the Agreement for Sale states that the purchaser is not entitled to object or raise any requisition in relation to 'the Approvals or any aspect, condition or requirement of the approval'. 'Approvals' is defined in Clause 1(a)i of the Agreement to include permits granted in relation to the property and specifically includes the subject permit issued by the Kingborough Council (DAS-2013-42).
8 Mr Cocker states at paragraph 7 of his affidavit, 'The grant of the planning permit substantially enhanced the value of the land and the Developer paid a premium price which is directly attributable to that enhanced value.' At paragraph 8 Mr Cocker states that the Developer proposes to develop the land in accordance with the planning permit, and engaged relevant consultants with respect to Condition 16, Restoration Plan for Whitewater Creek, and Condition 20, Bush Fire Hazard Management Plan.
9 Mr Cocker states that the Developer had not considered that there was any inconsistency between the requirements of Condition 16 and 20 of the planning permit until it first received advice from Mr McElwaine on 8 December 2015. Mr Cocker stated that he had formed the view in December 2015 that compliance with each of Conditions 16 and 20 of the planning permit could lawfully be achieved in accordance with the consultants' reports, which he instructed Mr McElwaine to forward to Council undercover of letter dated 21 December 2015.
10 Mr McElwaine's letter of 21 December 2015, addressed to Mr Arnold, General Manager, specifically addresses compliance with the requirements of Conditions 16 and 20 of the planning permit, noting that to date the Applicant's experts and Council officers have been unable to agree an acceptable compliance regime. Mr McElwaine refers to the report from Mr Millin which lists four options to deal with the retention of natural vegetation and which the Applicant contends, whilst it provides for a less satisfactory environmental outcome, does accord with the requirements of the planning permit.
11 Mr Arnold's response, dated 7 January 2016, advises firstly, that the revised restoration plan is not considered to satisfy Condition 16 of the permit, and secondly, he notes that the revised Bush Fire Management Planning Report proposes to remove remnant native vegetation which is at odds with the proper restoration of Whitewater Creek. Mr Arnold suggests that the Applicant consider a reconfiguration of the subdivision layout so that the bushfire hazard management areas can be contained within the lot boundaries, as required by Condition 20. He goes on to state that whilst this may result in a reduction in overall lot numbers, it may also result in a reduction of civil engineering costs, fencing costs and 'saved' costs associated with the clearing and management of existing vegetation.
12 At paragraph 16, Mr Cocker stated:-
'As has now become apparent from the Council's letter of 7 January 2016, either:-
(a) Simultaneous compliance with the requirements of Conditions 16 and 20- is neither practicable or feasibly; or
(b) The Council as planning authority will not, in the contention of the Developer, reasonably approve of the plans at annexures '1' and '2' as complying with the planning permit; and / or
(c) There is no mechanism on the permit to resolve the dispute between the Developer and the Council
It became necessary to instruct Mr McElwaine to pursue an appeal to the Tribunal in accordance with the terms of the Notice of Appeal which was lodged with the Tribunal on 11 February 2016.'
13 At paragraph 17, Mr Cocker states:-
'It was not apparent and in fact was not known to the Developer at an earlier point in time that Conditions 16 and 20 were or were potentially inconsistent and nor was it know until receipt of the Council's correspondence of 7 January 2016 that the Council would not approve the reports as submitted. Hence, at no point in time between the date that the Developer became the registered proprietor of the land and January 2016, did the Developer consider it necessary or desirable to appeal to this Tribunal and in doing so seek an extension of time.'
14 It is contended by the Applicant that simultaneous compliance with Conditions 16 and 20 of the planning permit create potential inconsistency. The Grounds of Appeal state as follows:-
1)Condition 16 of the planning permit is unreasonable and/or impracticable in that in order to have effect, agreement must be reached with the planning authority in circumstances where agreement has not been reached and there is no mechanism expressed in the condition to resolve differences between the person who has the benefit of the permit and the planning authority;
2)Condition 16 of the planning permit is unreasonable and ought not to have been imposed in the form in which it has been expressed in that its operation is inconsistent with Condition 20 of the planning permit;
3)Condition 20 of the planning permit is unreasonable and/or impracticable in that in the events which have happened, the satisfaction of the Manager of Development Services has not been achieved, despite the submission of a compliant bushfire hazard management plan and the condition contains no default mechanism to resolve disputes between the person who has the benefit of the planning permit and the Manager of Development Services of the planning authority; and
4)Each condition ought to be replaced with a condition which endorses, as part of the planning permit, a bushfire management planning report and a restoration plan for Whitewater Creek, which has been submitted to the planning authority but which has not been accepted as complying with the requirements of the planning scheme.
15 On the other hand, Council disputes an inherent inconsistency between Conditions 16 and 20 and contends that it is the content of the reports submitted by the Developer which propose vegetation removal that was not approved as part of the development application that give rise to the difficulties. Reliance is made on the Council Officer's Report who assessing the development application, a copy of which was provided by the Council. In Mr Armstrong's email to the Tribunal of 15 March 2016, whilst confirming that Council does not oppose the granting of an extension of time for lodging an appeal, advised that there are factual matters in the affidavit of Mr Cocker which are disputed as set out in the attached document. The document is titled 'Factual Matters in Dispute' and includes a list of relevant correspondence between the parties dating from 19 December 2014 up until 7 January 2016.
16 In his letter to the Tribunal dated 23 March 2016, Mr McElwaine contends that the document titled 'Factual Matters in Dispute' appears to have been prepared by an unidentified employee of the Council and if Council seeks to rely upon the factual matters contained therein, it should be submitted in the form of an affidavit to enable testing by cross examination at a preliminary hearing if appropriate.
17 In response, Mr Armstrong confirms that Council does not oppose the extension of time to appeal but notified the areas of factual dispute in the affidavit of Mr Cocker to avoid any conclusion that such matters were agreed. Mr Armstrong states that Council does not press for the resolution of the factual matters in dispute as part of the consideration of the application to extend time.
18 Mr McElwaine contends that the matters raised by Council in the referred material appear to go to the question of the merits of the appeal grounds, rather than the issue of the exercise of a discretion to extend time for the appeal.
19 In the accompanying letter for the application to extend time, Mr McElwaine addresses the factors set out in subsection 13(2A). They are considered under the following headings:-
Reason why the appeal was not lodged in statutory timeframe
20 Council's decision to issue the planning permit was made on 27 October 2014. An amended permit was issued undercover of letter to PDA Surveyors dated 5 November 2014. The application to extend time was lodged with the Tribunal on 11 February 2016, almost 17 months after the expiry of the statutory period. The reasons why the appeal was not lodged within the specified time of 14 days are said to be set out at paragraph 3 – 18 of Mr Cocker's affidavit. At paragraph 17 Mr Cocker states that it was not apparent or known to the Developer at an earlier point in time that Conditions 16 and 20 were or were potentially inconsistent. At paragraph 18 Mr Cocker states that he had been advised by the principal of the Appellant, PDA Surveyors, Mr McIndoe, that he was not aware at any time from the date of the planning permit until January 2016 of the matters deposed at paragraphs 14 – 17 of Mr Cocker's affidavit, which refer to an apparent inconsistency between the conditions.
21 The Tribunal accepts the submissions of Mr McElwaine which are based on the contents of Mr Cocker's affidavit as to the reason why the subject appeal was not lodged within the required timeframe.
Is it reasonable for the application to have been lodged on an earlier date?
22 Mr McElwaine contends that there was no need for the original applicant for the permit or the successive land owner to have lodged an appeal at an earlier date because the inconsistency between the conditions was not exposed until 7 January 2016, and it was not thought that Council would fail to approve the submitted plans until its advice of 7 February 2016. It was not until that point that it became necessary to lodge an appeal because the permit contains no mechanism for the resolution of disputes between the Council and the landowner over satisfaction of the permit condition requirements.
23 The basis of the appeal is the alleged unreasonableness / impracticality of the terms of conditions 16 and 20 of the planning permit and their apparent inconsistency. It is important to note that Council does not accept the Applicant's contention regarding inconsistency.
24 In Mr Arnold's letter addressed to Mr Cocker of 7 January 2016, he states:-
'Furthermore, Condition 20 was imposed on the basis of the information submitted with the development application which included - the explicit intent to retain the remnant native vegetation within Whitewater Creek in its entirety (see the statement by ECOtas dated 30 June 2014) and the fact that all remnant vegetation adjacent to lots 144 – 157 is bush fire prone as defined in KPS 2000 and under AS3959-2009.
It is not accepted that clearing remanent native vegetation in order to reduce it to a level where it can be considered as low threat (and therefore reduce the number of bush fire prone lots which must contain hazard management areas within their boundaries) satisfies Condition 20.'
25 With respect to this criterion, the Tribunal notes the time that has elapsed but accepts that there was no apparent justification for the lodgment of an appeal prior to its date of lodgment by the current owners. Time for lodgement expired during the tenure of the former owners who did not lodge an appeal nor is there evidence of them having contested the subject conditions. They had engaged PDA Surveyors, the current Applicants would have had access to other professional advice during the appeal period, the Tribunal considers that there was ample opportunity for an appeal to be lodged within the statutory timeframe.
Extent and cost of any work undertaken in accordance with the permit
26 Mr McElwaine advises that because the conditions have not been satisfied, the permit has not yet been acted upon.
Any other matter considered appropriate
27 The Supreme Court of Tasmania, in its consideration of a number of appeals from this Tribunal has had recourse to decisions of the Administrative Appeals Tribunal and Federal Court appeals from that Tribunal. Justice Tennant, in Purton v Jackson [2013] TASSC 46, in hearing an appeal from this Tribunal on an application to extend time, referred to the principles as outlined in the leading Federal Court case regarding this issue, namely Hunter Valley Developments v Cohen [1984] FCA 176. The Federal Court considered the relevant criteria to be:-
a)That the applicant for an extension of time show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
b)Action taken by the applicant to make the decision maker aware that he contests the finality of the decision and has not 'rested on his rights';
c)Any prejudice to the respondent, including any prejudice in defending the proceedings, occasioned by the delay;
d) Any prejudice to the wider public;
e) The merits of the substantial application; and
f)Considerations of fairness as between the applicants and other persons otherwise in a like position.
28 With respect to the above criteria, it is not alleged that there is any question of prejudice to the Respondent or other persons. The Council Officer's Report states that the representations made were mainly with respect to traffic and roads with only one regarding walking access to Whitewater Creek.
29 The Federal Court, in Hunter Valley Developments (supra), commented upon the inherent importance of the timeframe within which an appeal is to be lodged as stipulated by the relevant enactments and said at paragraph 18:-
'Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper to do so. The 'prescribed period' of 28 days is not to be ignored…. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained… It is a precondition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time…'
30 Council's documentation reveals that there were negotiations between Mr McIndoe of PDA Surveyors and the Council as early as 19 December 2014. These negotiations regarding the terms of Conditions 16 and 20 continued during 2015. A revised Bush Fire Hazard Management Plan and revised Whitewater Creek Restoration Plan were submitted to Council and negotiations continued through 2015. On 25 September 2015, Mr McIndoe advised Council that they were now acting for the contracted purchasers, Kingston Springfarm Pty Ltd.
31 On 21 December 2015, Mr McElwaine wrote to Mr Arnold advising that he acts for Kingston Springfarm Pty Ltd, noting that various options had been discussed between experts engaged by his client and Council officers for simultaneous compliance with the requirements of Conditions 16 and 20 but that regrettably no result had been achieved. Mr McElwaine attached a bushfire management plan pursuant to Condition 20 and a report from Millin MES pursuant to Condition 16. He noted that Mr Millin lists four options for dealing with the retention of natural vegetation and asked Mr Arnold to discuss the proposal further with Council officers before a decision is made by Council's Manager of Development Services.
32 The Applicant contends that Conditions 16 and 20 attached to the planning permit cannot be complied with in that they are unreasonable and/or impracticable and/or inconsistent. As stated above, the Council does not accept this contention and contends that it is the Applicant's proposal as evidenced in the revised bushfire management plan, to remove remnant native vegetation which is at odds with the plan for the proper restoration of the Creek. The Applicant had submitted amended bushfire and Whitewater Creek restoration plans subsequent to the issue of the permit.
33 It is not appropriate for the Tribunal to determine the merits of the grounds of appeal at this stage. However, it is a factor to be taken into account particularly given the Applicant's assertion that the justification for lodging an appeal at this stage is that the Applicant as subsequent landowner, has only recently been made aware of the apparent unworkability of the two permit conditions. The Tribunal does not accept that this fact has been established by the Applicant and nor does the Tribunal accept that the Applicant has put forward an acceptable reason for lodging an appeal so far out of time. The Tribunal does not consider that the grant of an application to extend time is an appropriate means of resolving the dispute between the Applicant and the Council in this case.
34 The restricted timeframe stipulated in the legislation emphasises the requirement for timeliness of action in order to afford certainty in the outcome of development applications. As the Federal Court stated in Hunter Valley Developments (supra), the prescribed period (of 14 days in this case) is not to be ignored and it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is for the Applicant to demonstrate an acceptable explanation for the delay and the Tribunal must be satisfied that it is fair and equitable in the circumstances to extend time.
35 Whilst no prejudice is alleged in this case, and the issue of precedent is not a reason to refuse such an application, as His Honour said in Hunter Valley Developments (Supra) the mere absence of prejudice is not enough to justify the grant of an extension. Public considerations are also relevant. The statutory timeframe for appeals against planning permits is specifically curtailed to 14 days in order to provide certainty to the parties and the public regarding the outcome of an application. In the current case, the Applicant is asking the Tribunal to exercise a discretion to extend that 14 day period by some 17 months.
36 The appeal contests the unreasonableness and /or impracticability of two of the conditions of the planning permit and seeks to replace them with conditions proposed by the Applicant. The Tribunal does not consider that to grant an application in this case to afford the parties the opportunity to re-litigate the terms of conditions attached to a planning permit issued in October / November 2014 is a proper exercise of its powers.
37 During the planning application approval process, the Applicant had recourse to expert advice. There were lengthy negotiations during 2015 concerning the implementation of the subject conditions, however, there is no evidence that at any stage the Applicant put Council on notice that it contested the validity of the subject conditions. There is no argument that the Applicant was not aware of its appeal rights. Whilst the permit runs with the land, and it is the current landowner that has instituted this application to extend time, this fact is of little consequence and does not justify the extension of time sought.
38 For all of the above reasons, the application to extend time is refused."
Appeal from the decision of the Tribunal made 18 May 2016
On 27 May 2016, counsel for the Owner lodged a notice of appeal in respect of the decision of the Tribunal. The grounds of appeal were in the following terms:
"The grounds of the appeal are that the first respondent erred in law as follows:
(a)properly construed, section 13 of the Resource Management & Planning Appeal Tribunal Act 1993 requires the first respondent to exercise the powers conferred by section 13(2) reasonably, rationally and logically. In its decision-making, the first respondent:
(i) proceeded irrationally and/or illogically at [25] in that its reasoning is internally inconsistent;
(ii) proceeded irrationally and/or illogically at [32-33] in that its conclusion that an appeal would not resolve the dispute between the applicant and the planning authority is a conclusion which is manifestly inconsistent with the function of the first respondent, which is to make the correct or preferable planning decision based on the facts which it finds and in accordance with the evidence which is presented to it;
(iii) proceeded irrationally and/or illogically at [34] in that it ignored its findings at [25] to the effect that there was no apparent justification to lodge an appeal prior to the date that it was lodged; and
(iv) in so reasoning, the first respondent reached a conclusion which no reasonable Tribunal, properly instructed as to the facts and the law, could have reached in the circumstances of this case;
(b)the first respondent misdirected itself as to its statutory function upon the hearing of an appeal at [32-33] in reasoning that to grant an extension of time to facilitate an appeal would not be 'an appropriate means of resolving the dispute between the applicant and the council in this case', in that it misunderstood its statutory function which is to make the correct or preferable planning decision upon the facts which it does find and based upon the evidence which it does receive upon an appeal;
(c)in its decision-making the first respondent failed to afford procedural fairness to the appellant at [30] and [37] in that it had regard to material provided to it by the planning authority and made findings of fact based upon such material:
(i) without affording to the appellant an opportunity to test or to contradict that material;
(ii) without complying with the advice provided by its Registrar of the first respondent to the legal practitioner of the appellant as contained in the correspondence of 24 March 2016;
(iii) without advising and then implementing a methodology in order to resolve any factual dispute in the material which was supplied to it, and contrary to the advice provided by its Registrar by correspondence to the practitioner for the appellant dated 24 March 2016; and
(d)misunderstood, or misdirected itself, as to the statutory function of the Tribunal at [36] namely its responsibility to act as a de novo decision-maker and to make a decision based upon the facts which it does find in accordance with the evidence which it does receive in any appeal which is brought to it." CHECKED
The Act, s 25, provides that an appeal to this Court from a decision of the Tribunal may be brought on a question of law.
Submissions and discussion
While the Attorney-General did not intervene in the proceedings, Mr Paul Turner, Assistant Solicitor-General (Litigation) from the Office of the Solicitor-General, asked counsel for the appellant to bring certain matters to the attention of the Court. Counsel did so. The first was the reasons of Blow J (as he then was) at [46]–[57] of the Court's decision in St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council and Anor [2007] TASSC 15; (2007) 16 Tas R 169. The second was the words of Porter J in Long v Kmart Australia Ltd [2016] TASSC 6 at [100]. His Honour said:
"The determination of facts by a reasoning process which is demonstrably unsound or marred by patent error, illogicality or perversity, is not open to attack as involving an error of law. Any specific finding that is perverse, contrary to the overwhelming weight of evidence or against the weight of the evidence may involve an error of fact, but does not involve an error of law."
Counsel for the appellant, while bringing those matters to the Court's attention, submitted, as far as the St Helen's Land Care case was concerned, that, while the reasoning contained in that case and the decision based on it were not wrong at the time that case was dealt with, more recent High Court authority suggested that the law had moved away from the position taken there. Counsel took the Court through the authorities which, he submitted, permitted the type of ground of appeal set out in paragraph (a) of the notice of appeal.
It was submitted that the Tribunal, in its decision, starting at [20], appeared to deal, under headings, with the criteria set out in the Act, s 13(2A). The first heading was "Reason why the appeal was not lodged in statutory time frame". While it was not expressly stated, that must be a reference to the factor identified in s 13(2A)(a). Under that heading, the Tribunal referred to matters outlined in Mr Cocker's affidavit explaining why the appeal against the planning authority's decision had not been lodged earlier. At [21] the Tribunal then indicated it accepted counsel's submissions based on that affidavit as to the reason why the appeal was not lodged within the required timeframe.
The next heading, ahead of [22], was "Is it reasonable for the application to have been lodged on an earlier date?" Again, the Tribunal did not expressly refer to the section in the Act. However, the structure of the decision makes clear that what the Tribunal was dealing with under that heading was s13 (2A)(b). That required the Tribunal to take into account "the time which has elapsed since the end of the period specified in subsection(1) and whether it would be reasonable to expect that the application to extend the appeal could have been lodged before the date on which it was lodged".
Paragraphs [22]–[25] of the Tribunal's decision dealt with submissions about why the appeal was not lodged within time. At [25] the Tribunal noted the time which had elapsed since the expiry of the appeal period (a factor it was required to take into account) and then accepted there was no justification for the lodgement of the appeal prior to the date upon which it was lodged (11 February 2016). The Tribunal however then concluded in the last sentence that "there was ample opportunity for an appeal to be lodged within the statutory timeframe".
Two matters arise from the conclusion in the last sentence. Firstly, it appears to be inconsistent with the conclusion in [21] of the reasons. Secondly, and perhaps more importantly, neither it nor the paragraphs appearing under the heading deal with the issue required to be considered by s 13(2A)(b). That requires the Tribunal to consider "whether it would be reasonable to expect that the application to extend the appeal could have been lodged before the date on which it was lodged".
Counsel for the appellant also submitted in relation to the second last sentence of [25] that there was no evidentiary basis for the conclusion reached.
The Tribunal, under the heading "Any other matter considered appropriate" set out at [27] some criteria taken from Hunter Valley Developments v Cohen [1984] FCA 176, and this Court’s endorsement of them. No issue is raised as to the correctness and applicability of those criteria. At [29], the Tribunal referred further to comments in the Hunter Valley Developments case at [18] about the inherent importance of timeframes.
The Tribunal then proceeded at [30] to refer to "Council's documentation". The Council did not file in any evidential form any "documentation" in relation to the application to extend time. In fact, the Council advised it did not oppose the application. What the Council did was supply a document to the Tribunal in which was outlined matters it disputed in Mr Cocker's affidavit, and in which it listed extensive correspondence between various parties from late 2014. In the email accompanying that document the Tribunal was invited to access the correspondence referred to in a "Drop box". The Tribunal declined to do that. However, it is apparent from the Tribunal file that at least part, if not all, of that material is there. While there is no information as to how it came to be there, it must be inferred that either the material referred to was supplied by the Council (as requested) or someone at the Tribunal accessed the Drop box and printed the material.
Whatever occurred, counsel for the appellant specifically objected to the Tribunal having regard to any of that material, and indicated to the Tribunal that he sought some mechanism to resolve how that material should be dealt with if the Tribunal proposed to have regard to it. It is apparent from the Tribunal file that no attempt was made to address the objection raised by counsel for the appellant. No advice was given to the parties to the effect the Tribunal proposed to use the material, notwithstanding the objection, and did not propose to take any step to resolve in any way the objection raised. The Tribunal simply proceeded to decision. It is clear from what is said at [30] that the Tribunal had regard to that material.
Counsel for the appellant also made submissions about parts of [33] of the Tribunal's reasons. It was accepted that the merit of any ultimate appeal may carry some weight in the determination of whether there should be an extension of time. However, it was submitted that, as far as the third sentence of that paragraph was concerned, it was unclear what fact the Tribunal was referring to. The sentence appeared to suggest the "fact" was the Owner's assertion that it had only recently been made aware of the apparent unworkability of the two permit conditions. At [21] the Tribunal appears to have accepted that fact. The second part of the same sentence also appears to be completely inconsistent with [21].
Counsel also made a submission by reference to the last sentence in [33]. It was submitted that this represented a fundamental misunderstanding of the role of the Tribunal. It would be fair to say that much of the Tribunal's work involves dealing with appeals against decisions of planning authorities to grant or not grant permits relating to subdivisions, or dealing with situations where conditions of permits granted are disputed. It was submitted, in effect, that the bald statement in the last sentence of that paragraph was not only a misunderstanding of the Tribunal's role, but also disclosed no reasoning as to why it was said access to the Tribunal by way of the appeal process was not an "appropriate " means of resolving the dispute between the parties.
A further submission was made by reference to [36] of the Tribunal's reasons. The Tribunal said there that it did not consider that:
"to grant an application in this case to afford the parties the opportunity to re-litigate the terms of conditions attached to a planning permit issued in October/November 2014 is a proper exercise of its powers."
The point made was that the appellant was not seeking to "re-litigate" anything. All it was seeking to do was have the Tribunal perform its function of dealing with a dispute between a land owner and a planning authority by way of its appeal process. There has been no other litigation in relation to this matter.
Errors of law
Ground (a) of the notice of appeal asserted, in effect, that aspects of the decision of the Tribunal were irrational and/or illogical, and that such irrationality and/or illogicality amounted to errors of law. While the Attorney-General did not seek to intervene in these proceedings, the reason why Mr Turner asked counsel for the appellant to bring certain matters to the attention of the Court was that both the St Helen's Land Care and K Mart v Long decisions provide support for the proposition that irrationality and/or illogicality in a decision do not amount to errors of law. Counsel for the appellant submitted that, by reference to recent High Court authority, they did. K Mart v Long is the subject of an appeal and it appears this issue is one of the matters to be agitated.
As counsel for the appellant was well aware, because he was counsel who agitated it, this issue has been agitated in an appeal to the Full Court where a decision is currently pending. It would seem to me given this present matter needs to be resolved relatively quickly, and it would be preferable to have the issue of principle determined by a Full Court rather than a single judge, that, if this appeal is able to be resolved by reference to any of grounds (b), (c) and/or (d), then I should do that. In those circumstances, I will look at those grounds first.
Ground (b)
The primary role of the Tribunal is to make planning decisions in circumstances where a permit may have been granted by a planning authority subject to conditions, and an issue arises in relation to those conditions. In such circumstances, the mechanism for resolving any dispute in relation to those conditions is an appeal to the Tribunal. It must be inferred that, had the appellant lodged an appeal to the Tribunal within the statutory timeframe, based on the dispute which now exists, the Tribunal would have proceeded to deal with it, there being no basis upon which it could not. As I indicated earlier, the only mechanisms for resolving the type of dispute that exists in this case is for the appellant to either accept the requirements of the Manager Development Services in relation to compliance with conditions 16 and 20, or have the dispute about those conditions dealt with in the Tribunal. The conditions in the form in which they are drawn prevent the starting of works, and hence compliance with the permit, absent acceptance of the planning authority's requirements or a successful appeal.
In determining an application to extend the time within which to lodge an appeal against the grant of a permit, the Tribunal must consider why the appeal was not lodged within the statutory timeframe. The Tribunal had the affidavit of Mr Cocker which contained material addressing this factor. At [21] the Tribunal said that it accepted the submissions of counsel for the appellant as to the reason why the appeal was not lodged within the required timeframe. Then, at [33], the Tribunal said the appellant had not put forward an acceptable reason for lodging an appeal so far out of time. That is then followed by the statement that:
"The Tribunal does not consider that the grant of an application to extend time is an appropriate means of resolving the dispute between the applicant and the Council in this case."
No reasoning is exposed for that conclusion. The only inference which might be drawn is that the Tribunal considered access to the Tribunal process was inappropriate because of what it saw as unexplained delay. There are two difficulties with drawing this inference. Firstly, the Tribunal appears to have accepted the explanation for delay in filing the appeal (see [21] of reasons), and secondly, the only means of resolving the dispute between the parties is an appeal to the Tribunal. Its decision on this application has prevented the appellant, for all practical purposes, from accessing the only means of resolving the dispute. Quite clearly the parties have spent some time trying to resolve it outside the Tribunal framework and could not. This is not a case where for example there may be another "appropriate" means of resolving the dispute. The Council (planning authority) clearly saw access to the Tribunal as appropriate, although it is accepted that factor is not necessarily determinative.
It is the function of the Tribunal in an appeal to make a correct planning decision based on the evidence before it and the facts it determines from that evidence. There is no suggestion that any delay has impacted upon the capacity of the Tribunal to perform that function. Why, in those circumstances, the Tribunal determined that permitting access to the Tribunal was not an appropriate means of resolving the dispute between the parties, is unclear. Counsel for the appellant submits that the Tribunal’s reasoning in this regard shows that it misdirected itself as to the function of the Tribunal, in the sense that it assumed the function of the Tribunal was in some way other than as identified.
Access to the Tribunal is the subject of a statutory framework. Provided a party can bring themselves within that framework, they are able to access the Tribunal process. There is no mechanism by which a Tribunal can make a preliminary decision that it is either appropriate or inappropriate for some reason for a party to access the Tribunal. The Tribunal appears to have proceeded on the basis that mechanism does exist.
I am satisfied that the Tribunal misdirected itself in this regard and this ground should succeed
Ground (c)
This ground is dependent on a finding that the Tribunal had regard to material provided to it by the Council as referred to in the email Mr Armstrong sent to the Tribunal and the appellant on 15 March 2016 referred to in [15] of these reasons. There would seem no doubt that it did. The question raised by this ground is whether, in having regard to that material and making findings based on it, did the Tribunal fail to afford the appellant procedural fairness in any or all of the ways identified?
It is therefore necessary to consider whether the Tribunal made any findings of fact based on the material. I accept that it did.
Attached to Mr Armstrong's email was the document described in [15] of these reasons. In its response dated 23 March the Tribunal said, inter alia, "The Tribunal has reviewed the contents of the Drop box referenced by Mr Armstrong."
Additionally, an examination of the Tribunal file reveals that a significant portion, if not all, of the material in the list of correspondence attached to Mr Armstrong's email, is on the Tribunal file. I was unable to find any indication as to how it got there, given the Tribunal indicated it would not print the material. The only conclusion which can be reached by reference to the existence of the material on the file and Mr Bryan's letter of 23 March is that the Tribunal had before it all the material referred to by Mr Armstrong, which counsel for the appellant specifically objected to being taken into account, absent being put in an appropriate form and tested.
At [30] of the Tribunal’s reasons, the Tribunal referred to a history revealed in the correspondence to which the Council referred. At [37], there is a finding of fact in the second sentence which could only be based on the material.
The next question therefore is, was the appellant denied procedural fairness by the Tribunal in any of the ways identified?
Both counsel for the appellant and Mr Armstrong, having regard to their correspondence with the Tribunal and the Tribunal's replies, not unreasonably would have expected that, prior to any final consideration of the application to extend time, they would have had an opportunity to deal with the Tribunal in relation to the status of the material provided by the Council for the purpose of the application. They were not given that opportunity, nor were they forewarned that the Tribunal intended to have regard to the material regardless of the appellant's objections.
I am satisfied that in having regard to the material in the circumstances I have identified, the Tribunal failed to afford procedural fairness to the appellant. This ground should succeed.
Ground (d)
At [36] of its reasons, the Tribunal said:
"The Tribunal does not consider that to grant an application in this case to afford the parties the opportunity to re-litigate the terms of conditions attached to a planning permit issued in October / November 2014 is a proper exercise of its powers."
The ground of appeal asserts that the Tribunal misunderstood, or misdirected itself, as to the statutory function of the Tribunal at [36], namely its responsibility to act as a de novo decision-maker and to make a decision based upon the facts which it does find in accordance with the evidence which it does receive in any appeal which is brought to it.
The first point which perhaps should be made is that there is no question of the parties re-litigating anything. There had been no litigation prior to the appeal and this application being made. As counsel for the appellant has submitted, the grant of a permit by a planning authority subject to conditions is not the outcome of a litigious process, and a s 61 appeal (which is ultimately what the appellant wishes to pursue before the Tribunal) is not equivalent to inter parties litigation. The function of the Tribunal is to make a correct or preferable planning decision, not the decision compelled by the tactical conduct of a hearing before it by one or more parties.
The Tribunal at [36] appears to have concluded that the appellant wanted to engage in a re-litigation of the terms and conditions attached to the permit granted in late 2014. With respect, I accept that suggests a misunderstanding of the Tribunal's function. That misunderstanding seems to have been relied upon by the Tribunal as a reason why the application to extend time should not succeed. In the circumstances this ground should succeed.
Disposition of the matter
As I indicated earlier, if it was possible to resolve this matter on the basis of grounds of appeal other than (a), I would do so and simply not deal with (a). I have been able to resolve the matter on the basis of grounds of appeal (b), (c) and (d) and will therefore not deal with (a). My view is the appeal should succeed. In the event that the appeal were to succeed, counsel for the appellant sought an order that the decision of the Tribunal be set aside and that the application to extend time be remitted for hearing to the Tribunal. He also sought that the matter be remitted to the Tribunal constituted by a member or members other than the member who constituted the Tribunal for the purpose of its decision on 18 May 2016. He referred, in support of this latter submission, to the reasoning of Blow J in Kidd v RMPAT (No 2) [2012] TASSC 79 at [31]–[34].
While I do not accept that the situation in the present case is anywhere near as clear cut as that in Kidd, the member who constituted the Tribunal in this matter has formed views in this matter, expressed in the Tribunal's reasons, which suggest she has formed views about what the appellant is trying to do. While I in no way suggest she would demonstrate or has demonstrated any actual bias against the appellant, it may be perceived her views are adverse to the appellant, and in those circumstances it would be prudent for any rehearing to be by another member or members.
The orders therefore are as follows:
1 The appeal is allowed and the decision of the Tribunal made 18 May 2016 is set aside.
2The application to extend time is remitted to the Tribunal for re-hearing, such re-hearing to be before a member or members of the Tribunal other than the member who constituted the Tribunal in the first instance.
0
5
1