Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Failure to exercise jurisdiction to hear and determine appeal – Jurisdiction to determine appeals from valid and invalid decisions of planning authority.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss 23(2), 25.
Land Use Planning and Approvals Act 1993 (Tas), ss 61, 62.
Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1, applied.
Aus Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
             Appellants:  K Stanton
             First Respondents:  B McTaggart SC
             Second Respondent:   A Spence
Solicitors:
             Appellants:  McGrath & Co
             First Respondents:  FitzGerald and Browne
             Second Respondent:   Page Seager

Judgment Number: [2016] TASSC 56
Number of paragraphs: 31

Serial No 56/2016
File No 484/2011

MARK PURTON and JUDITH PURTON
v MAUREEN FAYE JACKSON, ATHOL CHARLES JACKSON
and WARATAH-WYNYARD COUNCIL

REASONS FOR JUDGMENT PEARCE J

24 October 2016

This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") made on 26 February 2009. The appeal has not come before this Court before now because, since the Tribunal decision, there has been a protracted dispute involving a series of proceedings: Jackson v Building Appeal Board[2010] TASSC 29, 20 Tas R 1; Jackson v Purton [2011] TASSC 28; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Much of the factual and procedural history is explained by Porter J in his Honour's decision in 2010 and by Blow J (as he then was) in the Full Court in 2012. It is necessary that I set out only that which is relevant to the determination of this appeal, and much of the following narrative is extracted from the decisions to which I have just referred.

The factual and procedural history

On 25 September 2008 the first respondents, Mr and Mrs Jackson, applied to the Waratah-Wynyard Council ("the Council") pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s 57, for a planning permit for the construction of a residence on rural land they owned at Moorleah, south of Wynyard. At the time the Waratah-Wynyard Planning Scheme 2000 ("the planning scheme") was in force. The appellants, Mr and Mrs Purton, own neighbouring land. They were notified of the application and made a representation to the Council objecting to the grant of a permit to Mr and Mrs…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Purton v Jackson

Details

AGLC: Purton v Jackson [2016] TASSC 56
Case: [2016] TASSC 56
Decision Date: 24 October 2016

CaseChat Overview and Summary

Purton v Jackson involved the appellant, Mr. Purton, challenging a decision by the Resource Management and Planning Appeal Tribunal (Tribunal) in Tasmania. The Tribunal had dismissed Mr. Purton's appeal against a decision by the local council, which had refused his application for planning permission to construct a residence on his property. The dispute centred on whether the Tribunal had the jurisdiction to hear Mr. Purton's appeal given that the council's decision was both valid and invalid in parts.

The central legal issue before the court was whether the Tribunal had jurisdiction to hear and determine an appeal from a planning authority's decision that contained both valid and invalid components. The court was required to determine if the Tribunal had the authority to consider the entirety of the council's decision, or whether it was limited to reviewing only the valid parts. Another aspect of the case was whether the Tribunal's failure to exercise its jurisdiction constituted a legal error that could be rectified through judicial review.

The court held that the Tribunal had indeed erred in law by dismissing the appeal on jurisdictional grounds. It found that the Tribunal was empowered to hear and determine the appeal despite the presence of both valid and invalid components within the council's decision. The court reasoned that the Tribunal's role was to review the entire decision, including both valid and invalid aspects, to ensure that the overall decision-making process was lawful and just. Consequently, the court quashed the Tribunal's determination that it lacked jurisdiction and remitted the appeal back to the Tribunal for hearing and determination in accordance with the court's reasons. The court refrained from making final orders without further input from the parties, acknowledging that the Tribunal could no longer be constituted in its original form due to the passage of time.

Orders

Orders of the court

For the foregoing reasons grounds 1, 2 and 3 of the appeal are made out. The application to amend the notice of appeal by inserting ground 4 is refused. The determination of the Tribunal that it had no jurisdiction to hear and determine the appeal is quashed. I think that the appropriate order is that the appeal should be remitted to the Tribunal for hearing and determination in accordance with law, and in accordance with these reasons, but I will not make final orders without hearing further from the parties. I am aware that, by reason of the passage of time, the Tribunal can no longer be constituted as it was at the time the appeal first came before it.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Purton v Jackson [2016] TASSC 56

Most Recent Citation

Meander Valley Council v RMPAT [2018] TASSC 9

Cases citing this decision · 1 of 1 shown

Meander Valley Council v RMPAT
[2018] TASSC 9 Para 1

…In Purton v Jackson [2016] TASSC 56, 223 LGERA 19, the permit under consideration was the same as had been dealt with by Porter J in Jackson v Building Appeal Board (above). However, Pearce J considered an appeal from a Tribunal decision that has close parallels to the decision in this case. In that case, the Trib…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Quarmby v Qasair Investments Pty Ltd
[2014] TASFC 11 Para 1

…e estoppel. I agree. The requirements for, and effect of, an issue estoppel were considered by the Full Court in Quarmby v Qasair Investments Pty Ltd [2014] TASFC 11. In short summary, what is required is that the first decision was final, the same question has been decided, and that the decision involves the same…
Dorset Council v Resource Management and Planning Appeal Tribunal
[2014] TASSC 34 Para 6

…ourt in Jackson v Purton [2012] TASFC 2, 21 Tas R 310, and applied by his Honour in Dorset Council v Resource Management and Planning Appeal Tribunal [2014] TASSC 34. A contrary interpretation of the legislation would deprive the Tribunal, in an appeal, of the ability to act on a finding that an application is for…
Purton v Jackson
[2013] TASSC 46 Para 1

…Building Appeal Board [2010] TASSC 29, 20 Tas R 1; Jackson v Purton [2011] TASSC 28; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Much of the factual and procedural history is explained by Porter J in his Honour's decision in 2010 and by Blow J (as he then was) in…
Purton v Jackson
[2012] TASFC 2 Para 1

…te involving a series of proceedings: Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1; Jackson v Purton [2011] TASSC 28; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Much of the factual and procedural history is explained by Porter J in his Honour's de…
Jackson v Purton
[2011] TASSC 28 Para 1

…there has been a protracted dispute involving a series of proceedings: Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1; Jackson v Purton [2011] TASSC 28; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Much of the factual and procedural history is explain…
Jackson v Building Appeal Board
[2010] TASSC 29 Para 1

…fore now because, since the Tribunal decision, there has been a protracted dispute involving a series of proceedings: Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1; Jackson v Purton [2011] TASSC 28; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Much of…
Kirk v Industrial Court of New South Wales
[2010] HCA 1 Para 1

…grant of the permit. By mistakenly denying the existence of jurisdiction, the Tribunal committed jurisdictional error: Kirk v Industrial Court (NSW) [2010] HCA 1, 239 CLR 531 at 573-574 [72]. Mr and Mrs Jackson advance no other reason why the appeal may be invalid. The appellants were persons who, having made…
Tasman Quest Pty Ltd v Evans
[2003] TASSC 110 Para 6

…ainty of an application to this Court under the Judicial Review Act , or for relief in the nature of a prerogative writ: Tasman Quest Pty Ltd v Evans [2003] TASSC 110. This case is a good example of the difficulty a contrary construction creates.…
R v Resource Management and Planning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc
[2000] TASSC 19 Para 5

…ch I have adopted is consistent with the approach taken in R v Resource Management and Planning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc [2000] TASSC 19, 107 LGERA 196, also applied by Porter J in Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1. In Calvary Hospital Evans J dealt with the T…
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd
[1979] FCA 21 Para 6

…e appeal, whether or not the decision of the Council is properly described as "invalid": Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, referred to by Blow J in the Full Court in Jackson v Purton [2012] TASFC 2, 21 Tas R 310, and applied by his Honour in Dorset Council v Resource Man…

Legislation cited in this decision · 4

Land Use Planning and Approvals Act 1993 (TAS)
57, 61, 62 3 mentions (from Para 1)
Resource Management and Planning Appeal Tribunal Act 1993 (Repealed) (TAS)
23(2), 25, 25(1) 3 mentions (from Para 2)
Building Act 2000 (TAS)
1 mention (from Para 2)
Judicial Review Act 2000 (TAS)
1 mention (from Para 2)