Pielage v Launceston City Council - [2019] TASSC 1

[2019] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Pielage v Launceston City Council [2019] TASSC 1

PARTIES:  PIELAGE, Paul
  v
  LAUNCESTON CITY COUNCIL

JUDGMENT

APPEALED FROM: P J Pielage v Launceston City Council [2018] TASRMPAT 9

FILE NO:  1580/2018
DELIVERED ON:  7 February 2019
DELIVERED AT:  Hobart
HEARING DATE:  29 October 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Environment and Planning – Environmental planning – Development control consents, approvals, permits and agreements – Refusal and reasons for refusal – Whether the determination in the negative of a motion to approve on conditions amounts to a refusal – Loss of motion leaves open possibility that application might be approved on other conditions – Planning authority has failed to determine the application resulting in a deemed approval.

Land Use Planning and Approvals Act 1993 (Tas), ss 57, 59.
Local Government (Meeting Procedures) Regulations 2015 (Tas), regs 27, 28.
Meander Valley Council v RMPAT [2013] TASSSC 42, applied.
Douglas v Hobart City Council [1996] TASSC 49, referred to.
Aust Dig Environment and Planning [203]

REPRESENTATION:

Counsel:
Appellant: S B McElwaine SC and A Wells

Solicitors:
Appellant: Bishops Barristers and Solicitors

Judgment Number: [2019] TASSC 1
Number of paragraphs: 15

Serial No 1/2019
File No 1580/2018

PAUL PIELAGE v LAUNCESTON CITY COUNCIL

REASONS FOR JUDGMENT BRETT J

7 February 2019

On 29 November 2017, the appellant applied to the respondent ("the Council") in its capacity as the responsible planning authority, for the grant of a permit for a proposed development. The permit was required under the provisions of the applicable planning scheme. Accordingly, having regard to s 51 of the Land Use Planning and Approvals Act 1993 ("the Act"), the appellant could not commence the development until the Council had granted the permit.
The proposed development enlivened certain discretions under the planning scheme. Accordingly, the process for assessment of the permit was governed by s 57 of the Act. By s 57(2), the Council was entitled upon receipt of the application to refuse to grant the permit. There is no suggestion that it made such a decision at that time. Section 57(6) provides that unless the planning authority has refused to grant a permit under subs (2), it must grant or refuse to grant the permit within a timeframe specified in the section. Section 59 provides "the failure of a planning authority to determine an application for a permit … before the expiration of the period … is deemed to constitute a decision to grant a permit on conditions to be determined by the Appeal Tribunal". The "Appeal Tribunal" is the Resource Management Planning and Appeals Tribunal ("the Tribunal").
On 22 January 2018, which is within the period prescribed by s 57 for the determination of the application, a motion was put to Council that the application be approved "subject to the following conditions". A number of conditions were prescribed in the motion. The vote was tied. In the minutes of the meeting, the motion is recorded as "LOST 6:6". This was immediately followed by a motion in the following terms "That the Motion, as per the recommendation to Council, be adopted." The recommendation to Council is a reference to the recommendation of the Director of Development Services that the application be refused. This motion is also recorded as "LOST 6:6".
The Council took the view that it had failed to determine the application within the meaning of s 59(1). On 29 January 2018, it gave written notice to that effect to the appellant. It purported to do so pursuant to s 59(2) of the Act, which provides that where the failure of a planning authority to determine an application for a permit is deemed to constitute a decision to grant a permit on conditions to be determined by the Tribunal, such notice must be given. The appellant subsequently applied to the Tribunal pursuant to s 59(3), for an order determining the conditions on which the permit is granted. However, the Tribunal, of its own motion, undertook a consideration of whether there had in fact been a failure to determine the permit pursuant to s 59. In a written decision dated 10 May 2018, the Chairperson of the Tribunal, Ms Duvnjak, concluded that the tied vote in respect of the first motion, that is the motion to grant the permit on conditions, constituted a refusal of the application and, hence, the application had been determined pursuant to s 57, and the provisions of s 59 were not applicable. The Tribunal based its decision on relevant provisions of the Local Government (Meeting Procedures) Regulations 2015. Those provisions are as follows:
"27      Voting procedure
(1) Immediately after discussion on a motion is finished at a meeting, the chairperson is to —
(a)   put the motion to the vote, first in the affirmative, then, if necessary, in the negative; and
(b)   put the motion to the vote as often as is necessary to enable the chairperson to declare the result.
(2) The chairperson of a council meeting or council committee meeting is to take the vote by any means the council or council committee determines.
(3) The chairperson is to ensure that the vote of each councillor is recorded in the minutes of the meeting.
(4) Voting at a meeting may be conducted by secret ballot if the purpose is to select a person to represent the council on a committee or other body.
28       Determination of voting
(1) A motion at a council meeting is determined by a simple majority of votes unless an absolute majority is required under the Act or any regulations made under the Act.
(2)   A motion at a council committee meeting is determined by a simple majority of votes.
(3)   To abstain from voting at a meeting is to vote in the negative.
(4)   A tied vote at a meeting results in the motion being determined in the negative."
The gravamen of the Tribunal's reasoning is contained in the following paragraphs:
"8By virtue of Regulation 28(4) the first motion, put in the affirmative, resulted in a tied vote which was deemed to be in the negative, that is, it was a deemed refusal to grant a permit.
9If, following the vote on the first motion, the vote was tied, then applying Regulation 28(4), the Council has refused to grant the permit and there has been no 'failure' as contemplated by s 59. The second motion in the negative was not 'necessary' as there was already a deemed decision by virtue of Regulation 28(4) following the vote on the first motion. The vote on the second motion is irrelevant. Once a decision was made on the first motion, nothing further was required. Given the tied vote on the first motion, it is hardly surprising that the second motion to refuse also resulted in a tied vote. In reliance on this reasoning, the Tribunal concluded that the Council had in fact determined the application by refusing it and that the provisions of s 59 were therefore inapplicable."
The appellant has now appealed to this Court against the Tribunal's decision. The Council has filed a notice of submission and, accordingly, the appellant's submissions are uncontradicted. The basis of the appeal is that the Tribunal erred in law in its determination that the tied vote in respect of the motion to approve the application amounted to a refusal and, hence, a determination of the application. The appellant's position is that a refusal of an application to grant a permit can only occur as a result of the passing of a positive motion to refuse the development application, and that the tied votes in this case were insufficient to determine the application. This is clearly a question of law. This Court therefore has jurisdiction to entertain the appeal: see s 25 of the Resource Management Planning Appeals Tribunal Act 1993.
The starting point for the resolution of this question must be the proper construction of s 59, and in particular, what is meant by "the failure of a planning authority to determine an application for a permit …". The determination to which this section refers can, for the purposes of this case, be understood within the context of the process prescribed by s 57. As has already been noted, s 57(6) provides that unless a planning authority has refused to grant a permit under subs (2), it must grant or refuse to grant the permit within the prescribed time. This prescription to determine the application by grant or refusal must be read together with the provisions of s 51(3A) which provides that:
"(3A) A permit to which section 57 applies may be subject to such conditions or restrictions as the planning authority may impose."
In Meander Valley Council v RMPAT [2013] TASSC 42, 23 Tas R 14, Estcourt J approved the reasoning of the Full Court of the Federal Court of Australia in Lawyers for Forests Inc v Minister for Environment Heritage and the Arts [2009] FCA 330, 178 FCR 385 at [54], in concluding that a question of whether to grant a permit and the conditions to be imposed on such a grant are not separate considerations but, the "components of a single process". His Honour said: "I am wholly unable to see how a decision to grant a permit can be made without consideration of the specific conditions to be imposed on that permit as being necessary to justify the exercise of the discretion involved." The relevant passage which expressed the reasoning of the Full Court in Lawyers for Forests Inc v Minister for Environment (above) is as follows:
"[54] It is also apparent from the Minister's reasons that the impugned conditions do not constitute a separate approval process. The approval under s 133(1) was accompanied by the conditions attached to it. We do not accept the appellant's contention that s 134 conditions are 'subordinate' to the approval. The approval and the conditions came into being uno flatu. Sections 134 and 136 make clear that a consideration of what, if any, conditions are to be imposed will be an integral part of the decision to approve. The Act speaks of a condition being attached to an approval. But it is clear that there are not two different things – an approval and a condition. Rather, when a condition is attached to an approval, there is a conditional approval or an approval subject to conditions."
Applying this reasoning to the circumstances of this case leads to the conclusion that the Tribunal erred when it determined that the effect of reg 28(4) in respect of the first vote of the Council, was a refusal of the grant of the permit. I have no difficulty with the proposition that in general terms a resolution determined in the negative will amount to a refusal of the proposition put by the motion. The word "negative" is defined by the Macquarie Dictionary to include the following:
1expressing or containing negation or denial;
2expressing refusal to do something;
3refusing consent, as to a proposal.
It must be the case that the effect of reg 28(4) is to determine the motion after a tied vote, rather than leave it undetermined. A determination in the negative must mean that the positive proposition has been refused. That is the point of the provision. The outcome will be as if a majority of councillors had voted against the motion.
However, in order to understand the effect of a determination of the motion in the negative, it is necessary to understand precisely what it was that the Council was deemed to have refused by the negative determination. This requires careful consideration of the terms of the motion. The motion in this case was not simply that the permit be granted, but that it be granted subject to certain specified conditions. The tied vote meant that the Council had determined this question in the negative, that is that the application would not be approved on those conditions. This left open the question of whether the application was to be approved at all, and if so, whether it would be approved on different conditions. The second motion did not put the negative of the first proposition. That result had already been determined by the tied vote. Rather, it put a positive proposition that the recommendation to Council "be adopted". The recommendation was that the application for the grant of a permit be refused. The tied vote on this motion had the effect of determining that proposition in the negative. Hence, the outcome of the two votes can be summarised as follows:
· the permit was not granted on the proposed conditions, and
· the permit was not refused.
This result left open the possibility that the permit might be granted on other conditions. However, until there was a successful vote about this, the application for the permit remained undetermined. This was the state of the application when the prescribed time elapsed. The application had been neither granted nor refused. It follows that the Council was correct when it stated in its notice to the appellant that it had not determined the application and, hence, the provisions of s 59 were applicable. The Tribunal erred by finding to the contrary.
None of this is inconsistent with the views expressed by Zeeman J in Douglas v Hobart City Council A27/1996, [1996] TASSC 49. In that case, his Honour was dealing with a tied vote in respect of a single motion that an application be refused. The motion was deemed to have been resolved in the negative under regulations of identical effect to the regulations currently applicable. Unsurprisingly, his Honour determined that a resolution in the negative of a proposal to refuse an application could not be regarded as a determination of the application. In particular, it did not amount to an approval of the application. His Honour made obiter comments as follows: "Where an application for a planning permit is before a Council, it ought to be the subject of a motion that it be granted if any members of Council are prepared to move and second such a motion. If such a motion is carried, the permit will have been approved. If it is not, there would have been a refusal."
This is an uncontroversial statement, entirely consistent with my reasoning set out above. If there is a motion to grant a permit unconditionally and the motion is carried, then the application will have been determined. This is because consideration of conditions is part of a single integrated approval process. A motion to refuse to grant the permit, determined in the negative, means only that the permit is not being refused. It says nothing about whether the permit is to be granted unconditionally or on conditions, and, if the latter, their terms. Until that decision has been made, the application for the permit will remain undetermined.
It follows that the Tribunal erred when it concluded that there had not been a failure to determine the application within the requisite time and that s 59 was inapplicable. The appeal is upheld. The decision of the Tribunal is set aside and the matter remitted to it for determination in accordance with law. In particular, the Tribunal should now proceed to determine the conditions on which the permit is granted in accordance with the provisions of s 59.