Picone v Hobart City Council
[2016] TASSC 57
•7 October 2016
[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 make representations relating to the application during the period of 14 days commencing on the date on which notice of the application is given under subsection (3) or such further period not exceeding 14 days as the planning authority may allow.
(5AA) If the time period specified in subsection (5) includes any days on which the office of the planning authority is closed during normal business hours in that part of the State where the land subject to the application for a permit is situated, that period is to be extended by the number of those days.
(5A) …
(5B) …
(6) Unless the planning authority has refused to grant a permit under subsection (2), it must grant or refuse to grant the permit —
(a)not earlier than the expiration of the period of 14 days, or such further period as may be allowed under subsection (5), beginning on the date on which notice of the application for a permit is given under subsection (3); and
(b)not later than —
(i) in a case where the Heritage Council has not, under section 39(3) of the Historic Cultural Heritage Act 1995, required extra time to consider the application, on the expiration of the period of 42 days from the day on which the planning authority received the application or such further period as is agreed, in writing, by the planning authority and the applicant before the expiration of that 42-day period; or
(ii) in a case where the Heritage Council has, under section 39(3) of the Historic Cultural Heritage Act 1995, required extra time to consider the application, on the expiration of the period of 56 days from the day on which the planning authority received the application or such further period as is agreed, in writing, by the planning authority and the applicant before the expiration of that 56-day period."
Section 57(3) requires that there be notice given of the application. There are some exceptions to this requirement but they are not relevant to this case: see s 57(2). In relation to the prescription of relevant notice, s 57(4) sets out some mandatory requirements. The provisions of the Land Use Planning and Approvals Regulations 2014 ("the LUPA regulations"), reg 9, also prescribe the content of the relevant notice.
It is common ground that the respondent gave notice of the application, including by advertisement, in a daily newspaper, in accordance with reg 9 on 4 August 2016. For the purposes of this case, the important part of the notice was the statement that relevant representations "…must be received by no later than 12 midnight on Thursday, the 18th of August 2016." Representations are provided for in the LUPA Act, s 57(5).
The applicants instructed their solicitors to draft and lodge a representation setting out their concerns with respect to the relevant development. These instructions were given prior to the nominated closing time and date on 18 August 2016. However, for one reason or another, the representation was not actually forwarded to the respondent until the afternoon of 19 August 2016, one day later, and, according to the respondent, one day late.
At the same time as they lodged the representation with the respondent, the applicants' solicitors provided the respondent with a letter requesting an extension of time within which to lodge the representation, obviously in recognition of the fact that the representation was being lodged one day after the expiration of the nominated timeframe. In requesting the extension of time, the solicitors purported to rely on the provisions of s 57(5), and, in particular, the following words contained in that section, "… or such further period not exceeding 14 days as the planning authority may allow".
On 25 August 2016, the applicants' solicitors received a letter from the respondent stating that the respondent would consider the application for an extension of time, and that it intended to advise the applicant for the permit, and other representors of the application, and provide them with a right to be heard. On 7 September 2016, the respondent wrote again to the applicants' solicitors in these terms:
"I refer to your application to extend time pursuant to s57 (5) of the Land Use Planning Approvals Act 1993 contained within your correspondence of 19 August 2016.
I have considered your application, provided the applicant and other representors the opportunity to make submissions in response to the application and I have sought legal advice.
Having regard to the factual circumstances of this matter and based upon a consideration of that advice, I am of the view that there is no power to grant the application to extend time as requested in your correspondence of 19 August 2016."
The letter went on to indicate that the consequence of the lack of power to grant an extension of time was that the applicants had made a representation within the statutory period and, accordingly, they would not be notified of the final decision with respect to the development application. There has been subsequent correspondence between the parties but this correspondence does no more than restate the respective positions set out in the abovementioned correspondence.
I have been told, and it seems to be confirmed in the correspondence, that it is the intention of the respondent to consider and determine the application for the planning permit at a meeting on 10 October 2016; this coming Monday. In a letter dated 3 October 2016, the respondent confirmed its position that:
"… [the applicants'] representation was received outside the statutory period. It will not be considered in the assessment of the application."
The applicants have now made application to this Court for orders pursuant to the Judicial Review Act 2000 ("the JR Act"). I intend to return to the details of the application, but, in summary, the applicants are seeking relief pursuant to that Act with respect to the decisions taken by the respondent not to accept the representation and, hence, to not regard them as representors for the purposes of s 57(5) of the LUPA Act.
The applicants' position can be summarised as follows.
(a)Firstly, that on a proper interpretation of s 57(5AA), the time period of 14 days set out in s 57(5) must be extended to incorporate each Saturday and Sunday during that period. This is, so the applicants' argument goes, because Saturdays and Sundays are days when the planning authority was closed during normal business hours. Normal business hours, according to the argument, are 8.15am to 5.15pm. Such an interpretation, if accepted, would extend the period well beyond 19 August and would mean that the representation is within time.
(b)The second argument advanced by the applicants is that if the first argument is not correct, then the respondent erred in law by refusing to consider an application for an extension of time under s 57(5), and erred in law and denied the applicants natural justice, by refusing the application.
(c)Thirdly, the applicants seek relief under the JR Act which relates to both the decision to refuse the extension of time and the decision which the respondent proposes to make on Monday, which is to decide the application for the discretionary permit without giving consideration to the representation.
The respondent's position can be summarised as follows:
(a)That the term "normal business hours", as it is used in s 57(5AA), does not include Saturday or Sunday and there is no basis for an extension of the period under that provision.
(b)Secondly, that the power of a planning authority to extend the period of 14 days under s 57(5) is a power which must be exercised prospectively and, in particular, before the date on which notice of the application is given.
(c)Thirdly, it is argued by Mr McElwaine SC that, in any event, the applicants are not entitled to relief under the JR Act in respect of the matters which are the subject of this application, having regard to the terms of that Act.
Before I deal with the question as to whether relief is available under the JR Act, I will consider the first two issues. If these issues are decided against the applicants, then there is no basis for complaint about the conduct of or decisions made by the respondent, because those decisions have been made in accordance with law. If, however, the applicants' argument about either or both of those matters is accepted, then it will be necessary to consider the availability of a remedy under the JR Act.
I will deal firstly with the point arising under s 57(5AA). The applicants' argument in respect of this aspect of the matter proceeds as follows. Firstly, the words "Normal business hours in that part of the State in which the land is situate" is a reference to normal business hours in that locality generally and not the normal business hours of the planning authority. Secondly, those business hours should be determined without reference to any specific day of the week, that they are hours applicable to any day, and, hence, if a planning authority is closed on any day during those particular hours, then the provision is triggered, and the period is extended by the duration of the closure.
The first point I would make about this argument is that there is very little evidence to establish either the business hours of the respondent at any particular time or the normal business hours in the locality generally. No attempt was made by the applicant to draw my attention to any such evidence contained in the affidavit. I have searched unsuccessfully for such evidence. It would seem clear enough that insofar as the business hours of the respondent are concerned, I can infer that they are those set out in the advertisement: 8.15am to 5.15pm, Monday to Friday. There is no other evidence, however, that informs the question as to whether there are any and, if so, what "normal business hours" applicable generally in the part of the State to which the land the subject of the application for the permit, is situate.
It is well established that the starting point in respect of the interpretation of a statutory provision is to interpret that provision according to the ordinary meaning of its words. However, if more than one interpretation is possible, then the interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not do so (see the Acts Interpretation Act 1931, s 8A). Section 8B of the Acts Interpretation Act provides for circumstances in which extrinsic material can be used for the purposes of interpretation.
It is arguable that there is an ambiguity contained in or, at least, two ways of reading s 57(5AA). The words "in that part of the State" could be read as identifying the part of the State where the office of the planning authority is closed. Alternatively, as the applicants contend, it could be referable to qualify the meaning of "normal business hours", that is, "normal business hours in that part of the State".
In my view, there is only one way of reading the provision that is reasonable and does not lead to absurd results. My conclusion is that the section should be read as follows. Firstly, that "normal business hours" is a reference to the normal business hours of the relevant planning authority. Secondly, that "business hours" is a reference, not just to hours of a day, but to the hours of a day and to the days of the week on which those offices would normally be open. I reject the applicants' argument that the provision should be read by interpreting normal business hours as normal business hours referable to the part of the State in which the land is situate.
In my view, the reference to "the part of the State" is a reference to the place where the office is closed. In other words, the provision should be read as extending the period under s 57 (5) when the office of the relevant planning authority is closed in that part of the State where the land is situate, during a time when that office would normally be open, because that time is within its normal business hours.
Any other interpretation of the provision is unreasonable. To interpret the provision as contended by the applicants would require a determination in respect of a concept defined as the normal business hours generally that applies in a particular location. It seems to me that it would be unlikely that there would, in fact, be any such concept and that, in any event, it would be impractical if not impossible to determine with precision what hours are referable to such a concept.
Businesses come in many different shapes and forms, and normal business hours within a locality for one business may not be normal business hours for another. Further, such an interpretation has no real relevance to the purpose of the provision. The provision is clearly intended to facilitate inspection of documentation associated with the development application during the representation period. Its purpose is to ensure that, if the planning office is closed in unusual circumstances, or unusually during that time when it would normally be open having regard to its normal business hours, then the period is extended accordingly.
To simply extend the period because of closure during a period defined by normal business hours generally in a community would be of little use in achieving those objectives. All of this is entirely consistent with the second reading speech. In my view, it is permissible for me to have regard to this document. It is extrinsic evidence but, as I have already demonstrated, there are, according to the grammar of the provision, two possible ways of reading s 57(5AA). Accordingly, s 8B of the Acts Interpretation Act permits reference to the second reading speech.
In relation to this provision, the Minister, on 3 July 2007 when the provision was introduced, said:
"Section 57 is to be amended to exclude any day that a planning authority's office is closed on a normal business day from the public exhibition period for development applications. This will ensure that the public has adequate time and opportunity to view documents and lodge representations."
By that comment, the second reading speech makes clear that the reference to normal business hours includes not just hours of the day but also days of the week. This is made clear by the Minister's statement that the intention of the introduction of the provision is to cater for times when the offices are closed on a normal business day. Once again, any other reading of the provision would be unreasonable.
The interpretation contended for by the applicants is also inconsistent with the norms of drafting. It would be a rare planning authority that would have its office open on a weekend. The reference to 14 days in s 57(5) is clearly intended, in my view, to incorporate a period which includes weekends, when it would be expected that the office would be closed. Had it been intended to extend that period because of the constant reality that such offices will be closed on weekends, one would have thought that the legislation would have dealt with it in a more final way, rather than by leaving it as an exceptional or discretionary matter under s 57(5AA). The section is clearly intended to pick up unusual closures, not the regular expected closure of a weekend.
There is no evidence presented by the applicants that the planning authority was closed during the relevant period during its normal business hours. As already noted, the only evidence of the business hours of the planning authority comes from the advertisement, and that clearly sets out those hours as Monday to Friday of each week. It follows that I reject the submission that the period under s 57(5) should be extended having regard to the provisions of s 57(5AA).
I turn now to deal with the interpretation of s 57(5). Mr McElwaine submits that that section should be interpreted on the basis that the power to extend the period for representations can only be exercised prospectively, that is to say, prior to notification. His argument is that any other interpretation and, in particular, a reading of the provision that permits the authority to grant an extension of time after the period for notifications has closed, in other words, in respect of late notifications as in this case, is contrary to the intention manifested in the Act, and would lead to an unfair and unintended result. That result is that potential representors reading the notification could be caught out by the notification because they think that the closure of the relevant period as notified is the end of the opportunity to make a representation at all. Others who make application could be in a better position because they make the application and are granted an extension.
I am unable to agree with Mr McElwaine’s argument. My reasons for this are as follows. Firstly, there is nothing about the wording of the provision that limits the power of the planning authority to extend time, particularly in the way contended for by Mr McElwaine. The wording of the provision, in particular the use of the word "allow" suggests that it is intended to be a wide and general power exercised within the limits expressly contained within the provision, that is, that council can extend the time but for no longer than a further period of 14 days.
The use of the word "allow" suggests a discretion to be exercised in a variety of circumstances. Again, it would have been a simple matter for the legislature, had it intended to limit that power in the way contended for, to say so expressly. One might also have expected that it may have used different wording than the word "allow". For example, it could have said that the planning authority may "determine" a longer period than 14 days, prior to notification being given.
Instead, the provision uses words consistent with a general power to extend time either before or after closure of the first 14-day period. My reading of the provision is consistent with the assumption that seems to have been made by Evans J in a decision of this Court in Helbig v Resource Management and Planning Appeal Tribunal [2008] TASSC 28. In that case, his Honour assumed that s 57(5) conferred a power to extend time for lodging late representations.
The case is not authority for that proposition because his Honour's assumption was a premise for the purpose of further reasoning rather than a conclusion of that reasoning. However, it does demonstrate the point that I have made about the ordinary reading of the provision, and that that ordinary reading strongly suggests that it is a power to be exercised as contended for by the applicants.
Further, I do not agree with Mr McElwaine's submission that an interpretation to permit an extension of time for late representations necessarily causes unfairness or disruption to the scheme created by s 57 for the assessment of discretionary applications.
There is no doubt that the requirement of notice contained in s 57(3) is crucial to the proper assessment of applications. This much is clear from the decision of the High Court in Scurr v The Brisbane City Council (1973) 133 CLR 242. That case was not concerned with the need to notify or include the time limit in the lodging of representations in a notice. However, it was concerned generally with the notification of development applications and established the need in those applications to ensure that sufficient information about the application is available to the reader. That is something which seems to me to be picked up by s 57(4) of the LUPA Act. However, in Dorset Council v The Resource Management and Planning Appeal Tribunal [2014] TASSC 34, 23 Tas R 85, Blow CJ took the view that notification of the time for closure of the representation period is a crucial part of the information to be provided in a notification, in the sense discussed in Scurr.
I do not disagree with either decision. However, it seems to me that the relevant prescription of the notice that is required by reg 9(3) of the LUPA regulations can be complied with in a way that is consistent with the interpretation of s 57(5), stated by me above. That regulation provides:
"(3) A notice under subregulation (1) is to
(a) ….
(b) advise that representations in relation to the application may be made in accordance with section 57(5) of the Act …".
It is important to note that the right to make representations is only provided for in s 57(5). Accordingly, the requirement of reg 9(3) is that readers be informed of their right to make a representation, and to do so in accordance with the requirements of s 57(5). Of course, that must include, as a matter of logic, the need to inform the reader of the applicable time limits which arise under that provision. In this representation, and I suspect as a matter of general course, advertisers interpret the relevant provision, arrive at a date, and this specific date is inserted in the notification.
That practice is not without historic difficulties. I refer to Dorset Council v The Resource Management and Planning Appeal Tribunal case as an example. However, Mr McElwaine's point about the question of unfairness and treating representors equally is predicated on the closure date being fixed by council. However, if s 57(5) is read as providing the planning authority with the right to extend the period subsequent to the representation period to allow for late representations, I do not see that this is inconsistent with or creates any significant difficulty in relation to the requirements of reg 9(3).
That regulation requires information to be given as to the right of the reader to make a representation in accordance with s 57(5). Section 57(5) does not set out a specific date. It provides for a period of 14 days, or such further time as the planning authority may allow, not exceeding a further period of 14 days. That is the information that ought be provided in order to comply with the provisions of reg 9(3). Provision of that information, either expressly or by reference to the section, would then place all potential readers in exactly the same position in terms of the information they receive in respect of the time limited for making representations and their rights in relation to that question. In particular, a reader would be informed that a representation must be made within the period of 14 days, or within such further period as may be allowed by the planning authority, up to a further 14 days.
I acknowledge that this interpretation permits a planning authority to exercise discretion according to the individual circumstances of the case, and that this may be perceived as potentially treating some representors unequally from others. However, detailed scrutiny does not support this conclusion. All exercises of discretion carry the inherent potential for unequal treatment. On the other hand, the power to extend time caters for circumstances in which, for good reason, a person with a real and legitimate interest in the development application, the type of person contemplated as a representor by the process under s 57, has not been able to lodge an application within the initial 14 day period. The provision, read in this way, provides for the amelioration of that strict time limit, but still limits the overall period to 28 days, and leaves the planning authority with the discretion to refuse the extension if circumstances make that appropriate. It seems to me that this power to ameliorate the effect of the strict time limit is more consistent with the objective of public participation in the planning process incorporated by s 5 and the objectives of the LUPA Act, than the interpretation contended for on the part of the respondent.
I can understand also that it might be argued that a less certain finalisation date in respect of representations disrupts the overall assessment process, or at least has the potential to do so. However, when regard is had to the provisions of s 57(6), it seems to me that the process prescribed by that provision takes into account and contemplates that there may be uncertainty in relation to the representation period. That provision prescribes the following process. Under s 57(6)(a), the decision on the permit is not to be made before a certain time, which is the period set out in s 57(5). That period will be the period as extended if that extension is allowed.
Section 57(6)(b), rather than linking the time limit for the finalisation of the whole determination process to the end of the representation period, in fact links it back to the original lodgement date. Accordingly, the finalisation date of the application will remain the same, irrespective of variations in the representation period. If such a period was always fixed before notification, there would be no need to have this differential means of determining the earliest and latest date for finalisation of the application. It would have been a simple matter to have the finalisation date calculated according to a time period that runs from the end of the representation period.
These provisions mean that there can be certainty as to the finalisation date, and that date is not impacted by late changes in the representation period. It follows that there is no reason to read down the provision in the way contended for by Mr McElwaine. The result is that the council did have power to extend the time in respect of this representation, and, in fact, if it had decided to do so, to accept the representation. The content of the letter of 7 September 2016 evidences a refusal by the planning authority to extend the time period, not in an exercise of discretion, but in the erroneous belief that, as a matter of law, it did not have power to do so.
I now turn to consider possible relief available under the JR Act. The first question is whether the decision to refuse the extension of time and to refuse to accept the representation is a decision to which the Act applies. That is a matter dealt with in s 4 of the Act. That section defines a decision to which the Act applies as meaning "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment, whether or not in the exercise of discretion".
It seems to me that if what was done by the planning authority on 7 September 2016 is a decision at all, then it is a decision to which the Act applies. The actions of the planning authority were clearly of an administrative character. They were something that was made or proposed to be made under an enactment. I am satisfied that it falls within the definition contained in s 4.
The next question is whether the refusal by the planning authority to extend time and accept the representation amounts to making a decision. Section 5(a) provides that, "A reference to the making of a decision includes a reference to … refusing to make … determination." This provision applies to the said refusal of the planning authority. Accordingly, I am satisfied that what was contained in the said letter was a decision within the meaning of the JR Act, and it was a decision to which the Act applied.
Finally, it is clear that the applicants are persons aggrieved by that decision, having regard to provisions of s 7. By virtue of s 17 of the Act, the applicants are therefore entitled to apply for an order of review.
Under s 17(2)(f), they are entitled to do so on the ground that the decision involved an error of law. I am prepared to allow the application on that basis. I am satisfied that the planning authority refused to make a decision under an enactment, and that the refusal to do so involved an error of law. I have already described that error.
Mr McElwaine made reference to the case of Australian Broadcasting Tribunal vBond (1990) 170 CLR 321. That case distinguishes conduct which is preparatory to a decision, or constitutes a step in a course of reasoning leading to a decision which would not be covered by the judicial review legislation, from a decision which is so covered because it is final or operative or determinative. I do not need to refer to that case in any detail, because I have determined from the ordinary meaning of the relevant provisions the JR Act that it applies to this decision, but, in any event, I am satisfied that the decision to refuse to extend time, and hence to accept the representation, is a decision which is final, operative, and determinative. It certainly is so of the applicants' rights. It is determinative of the question as to whether the applicants become representors within the meaning s 57 (5) of the LUPA Act. The consequences of that question are final and determinative of their right to participate in the planning process in relation to this development application: s 61(5).
Accordingly, for those reasons, I am prepared to grant limited relief. I am not prepared to make an order that the representation be accepted, and hence be considered during the meeting that I understand is to take place on Monday. The error upon which relief will be based is that the planning authority did not consider the question of an extension of time for lodgement of the representation because it erroneously took the view that it did not have power to extend time under s 57(5).
I make these orders:
(1)To refer to the respondent for further consideration the request of the applicants contained in the letter from the applicants' solicitors to the respondent dated 19 August 2016, for an extension of time under s 57(5) of the Land Use Planning and Approvals Act 1993, to lodge a representation in respect of the development application relevant to these proceedings, and that that consideration be in accordance with law.
(2)In accordance with my powers under s 27 of the Judicial Review Act 2000, I direct that the respondent give consideration to that request for an extension of time before determining the development application.
I will hear counsel as to any consequential matter.
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