Picone v Hobart City Council - [2016] TASSC 57

[2016] TASSC 57

COURT: SUPREME COURT OF TASMANIA

CITATION: Picone v Hobart City Council [2016] TASSC 57

PARTIES:  PICONE, Ian John
  PICONE, Lynette
  v
  HOBART CITY COUNCIL

FILE NO:  2980/2016
DELIVERED ON:  7 October 2016
DELIVERED AT:  Hobart
HEARING DATE:  6 October 2016
JUDGMENT OF:  Brett J

Edited reasons for judgment delivered orally

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Applications – Notice and advertising – Advertisement – Sufficiency of particulars.

Aust Dig Environment and Planning [91]

Environment and Planning – Environmental planning – Development control – Applications – Objections.

Scurr v The Brisbane City Council (1973) 133 CLR 242; Dorset Council v The Resource Management and Planning Appeal Tribunal [2014] TASSC 34, 23 Tas R 85; Helbig v Resource Management and Planning Appeal Tribunal [2008] TASSC 28, referred to.
Land Use Planning and Approvals Act1993 (Tas), s57.
Aust Dig Environment and Planning [94]

Administrative Law – Judicial review – Reviewable decisions and conduct – Failure to make decision.
Australian Broadcasting Tribunal vBond (1990) 170 CLR 321, discussed.
Aust Dig Administrative Law[1023]

REPRESENTATION:

Counsel:
             Applicants:  D Deller
             Respondent:  S B McElwaine SC
Solicitors:
             Applicants:  Dobson Mitchell & Allport
             Respondent:  Shaun McElwaine + Associates

Judgment Number: [2016] TASSC 57
Number of paragraphs: 51

Serial No 57/2016
File No 2980/2016

IAN JOHN PICONE and LYNETTE PICONE
v HOBART CITY COUNCIL

REASONS FOR JUDGMENT BRETT J

(DELIVERED ORALLY) 7 October 2016

I am delivering my reasons ex tempore because of the urgency of the matter and in order to enable the parties to understand my orders.
This case concerns a proposed development relating to a property within an area in respect of which the respondent is the relevant planning authority. The applicants are the owners of a property which is adjacent to or very close to the land on which the development is to take place. It is common ground that the development cannot proceed, having regard to the relevant planning scheme, unless the respondent grants a permit in the exercise of its discretion under that scheme.
The powers of the respondent and the process to be followed in relation to the determination of an application for a discretionary permit are prescribed by the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s 57. The provisions in that section of particular relevance to this case are as follows:
"(3)   Unless the planning authority requires the applicant to give notice, the authority must give notice, as prescribed, of an application for a permit.
(4)     A notice referred to in subsection (3) is, in addition to any other matters required to be contained in it, to name a place where a copy of the application, and of all plans and other documents submitted with the application, will be open to inspection by the public at all reasonable hours during the period for which representations may be made.
(4A)   …
(5)     Any person may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] TASSC 57
Decision Date: 7 October 2016

CaseChat Overview and Summary

Picone v Hobart City Council involved the plaintiff, Picone, contesting a decision by the Hobart City Council regarding a development application. The plaintiff alleged that the council failed to provide adequate notice of the application and did not sufficiently advertise it, thus depriving him of an opportunity to object. The matter was heard in the Supreme Court of Tasmania.

The court was required to determine whether the council's failure to properly notify and advertise the development application constituted a reviewable error under the Administrative Appeals Tribunal Act and the Judicial Review Act. Furthermore, the court needed to decide if this failure deprived Picone of procedural fairness, as guaranteed by the common law.

The Supreme Court of Tasmania found that the council's actions in not adequately notifying and advertising the development application did indeed constitute a reviewable error. The court emphasised that the duty to provide notice and advertising was crucial to ensuring procedural fairness. Given this error, the court ruled that Picone's right to be heard was compromised, leading to a decision that the council's failure to make a decision was itself reviewable. Consequently, the court quashed the council's decision and directed it to reconsider the application with proper notice and advertising.

As a result of the court's decision, the council was ordered to provide Picone with the opportunity to object to the development application, ensuring that all necessary procedures were followed before any decision was made. This included providing Picone with adequate notice and advertising the application in accordance with the relevant statutory requirements.

Orders