R v Planning Appeal Board; Ex Parte - [1990] TASSC 48

Serial No 45/1990
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Planning Appeal Board; Ex parte Loring [1990] TASSC 48; A45/1990

PARTIES:  R
  v
  PLANNING APPEAL BOARD
  LORING, ex parte

FILE NO/S:  M183/1990
DELIVERED ON:  6 September 1990
JUDGMENT OF:  Zeeman J

Judgment Number: 45/1990
Number of paragraphs: 60

Serial No 45/1990
List "A"
File No M183/1990

R v PLANNING APPEAL BOARD; EX PARTE LORING

REASONS FOR JUDGMENT ZEEMAN J

6 September 1990

This is the return of a general order to show cause granted by Wright J on 18 July 1990 pursuant to the provisions of O72, r1A. The order calls upon the Planning Appeal Board to show cause why a Writ of Certiorari or a Writ of Mandamus or further or other relief should not be granted in respect of a determination made by it on 6 June 1990 whereby it dismissed an appeal by the prosecutors.

It is appropriate to observe that it is not strictly correct to say that the Board dismissed the appeal. As will appear, there is some doubt as to what the Board did do. If it did anything, it upheld the appeal to some extent, although in substance, if not in form, its determination amounted to a dismissal of the prosecutors' appeal. Whilst the order nisi was made returnable before a judge in chambers, with the concurrence of counsel I adjourned the hearing of the matter into court, that being appropriate in circumstances such as the present.

No facts were in issue. Substantially the facts were contained in the two affidavits read, supplemented by matters which counsel told me were agreed. Whilst there was no dispute on the facts, a question did arise as to what material I was entitled to take into account, at least in certain events. I will return to that question in due course.

The Planning Appeal Board, by counsel, submitted to whatever order the court might make. It took no further part in the proceedings. The Corporation of the City of Hobart and Messrs Philp, Lighton, Floyd and Beattie were served with the order nisi. Again, they appeared by counsel and acknowledged service, but did not otherwise take part in the proceedings. Sandy Bay Developments Pty Ltd ("the company") appeared by counsel and took part in the proceedings. It had been a respondent to the appeal to the Planning Appeal Board which had resulted in the determination sought to be challenged in these proceedings.

The company was the applicant for planning approval relating to a proposed development affecting premises situate at 236 – 268 Sandy Bay Road, 3 Russell Crescent and part of Russell Crescent at Sandy Bay. The relevant land is governed by the provisions of the Battery Point Planning Scheme 1979, which scheme was sealed by the Commissioner for Town and Country Planning pursuant to s732 of the Local Government Act 1962 on 5 June 1979 to come into effect on that date.

It is common ground between the parties that the…

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 R v Planning Appeal Board; Ex Parte

Details

AGLC: R v Planning Appeal Board; Ex Parte [1990] TASSC 48
Case: [1990] TASSC 48
Decision Date: 6 September 1990

CaseChat Overview and Summary

The case before the Supreme Court of Tasmania involved a challenge to a determination made by the Planning Appeal Board regarding an appeal against a planning approval granted by the Corporation of the City of Hobart. The appellants, Robert and Margaret Loring, sought a writ of certiorari or mandamus to overturn the Board's decision to dismiss their appeal. The central legal issue was whether the Board had jurisdiction to hear the appeal and, if so, whether it exercised that jurisdiction correctly. The court held that the Board's determination was flawed due to procedural errors and a misunderstanding of the nature of the appeal. Specifically, the Board failed to properly exercise its discretion under the regulations and misconstrued the scope of the appeal. The court concluded that the Board lacked jurisdiction to hear the appeal on the merits because it did not properly address the prerequisites for the exercise of its discretion. Additionally, the Board misinterpreted the nature of the appeal, which was against the grant of the approval and not limited to specific grounds stated in the notice of appeal. The court ordered the Board to hear the appeal afresh, properly exercising its discretion and determining the appeal according to law.

Orders