R v Resource Planning and Development Commission; Ex parte Dorney

[2003] TASSC 7

[2003] TASSC 7

CITATION:        R v Resource Planning and Development Commission;

Ex parte Dorney [2003] TASSC 7

PARTIES:  R

v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION; Ex parte
DORNEY, Patrick Esmond
EWING, Lee Barbara
as personal representatives
of the estate of J H E DORNEY

DORNEY, Patrick Esmond
EWING, Lee Barbara
as personal representatives
of the estate of J H E DORNEY
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION;
HOBART CITY COUNCIL

R
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION; Ex parte
JEVTIC Andrew Peter
JEVTIC, Kaye

JEVTIC Andrew Peter
JEVTIC, Kaye
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION;
HOBART CITY COUNCIL

R
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION; Ex parte
GRAVES, Caroline May

GRAVES, Caroline May
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION;
HOBART CITY COUNCIL

R
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION; Ex parte
ALLEN, Edward George
HANNAFORD, Lyndall Jane

ALLEN, Edward George
HANNAFORD, Lyndall Jane
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION;
HOBART CITY COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M43/2002, M44/2002, M45/2002, M46/2002

M47/2002, M48/2002, M49/2002, M50/2002

DELIVERED ON:  12 March 2003
DELIVERED AT:  Hobart
HEARING DATES:  5, 18 December 2002
JUDGMENT OF:  Blow J

CATCHWORDS:

REPRESENTATION:

Counsel:

M43/2002, M45/2002, M47/2002, M49/2002:

Prosecutors  A R Spence
           Defendant:  T J Ellis SC
           Hobart City Council:  S B McElwaine

M44/2002, M46/2002, M48/2002, M50/2002:

Applicants:  A R Spence
           First Respondent:  T J Ellis SC
           Second Respondent:  S B McElwaine

Solicitors:

M43/2002, M45/2002, M47/2002, M49/2002:

Prosecutors  Page Seager
           Defendant:  Director of Public Prosecutions
           Hobart City Council:  S B McElwaine

M44/2002, M46/2002, M48/2002, M50/2002:

Applicants:  Page Seager
           First Respondent:  Director of Public Prosecutions
           Second Respondent:  S B McElwaine

Judgment Number:  [2003] TASSC 7
Number of Paragraphs:  20

Serial No 7/2003
File Nos M43/2002, M44/2002

M45/2002, M46/2002
M47/2002, M48/2002
M49/2002, M50/2002

THE QUEEN v RESOURCE PLANNING and DEVELOPMENT COMMISSION;
Ex parte PATRICK ESMOND DORNEY and LEE BARBARA EWING
as personal representatives of estate of J H E DORNEY
PATRICK ESMOND DORNEY and LEE BARBARA EWING
as personal representatives of estate of J H E DORNEY
v RESOURCE PLANNING and DEVELOPMENT COMMISSION
and HOBART CITY COUNCIL
THE QUEEN v RESOURCE PLANNING and DEVELOPMENT COMMISSION;
Ex parte ANDREW PETER JEVTIC and KAYE JEVTIC
ANDREW PETER JEVTIC and KAYE JEVTIC v RESOURCE PLANNING
and DEVELOPMENT COMMISSION and HOBART CITY COUNCIL
THE QUEEN v RESOURCE PLANNING and DEVELOPMENT COMMISSION;
Ex parte CAROLINE MAY GRAVES
CAROLINE MAY GRAVES v RESOURCE PLANNING and DEVELOPMENT COMMISSION and HOBART CITY COUNCIL
THE QUEEN v RESOURCE PLANNING and DEVELOPMENT COMMISSION;
Ex parte EDWARD GEORGE ALLEN and LYNDALL JANE HANNAFORD
EDWARD GEORGE ALLEN and LYNDALL JANE HANNAFORD v
RESOURCE PLANNING and DEVELOPMENT COMMISSION
and HOBART CITY COUNCIL

REASONS FOR DETERMINATION  BLOW J

12 March 2003

1. These proceedings concern amendments, or purported amendments, to the City of Hobart Planning Scheme 1982 ("the planning scheme") which provide for certain areas of land to be rezoned as "Community Bushland", and for restrictions on the use of land so zoned.  A number of landowners have instituted proceedings seeking orders for the quashing of decisions made by the Resource Planning and Development Commission ("the Commission") or its delegates.  They are also seeking declarations that they are entitled to compensation under the Land Use Planning and Approvals Act 1993 ("the Act"), s66, as a result of their land having been rezoned. Obviously such compensation will not be payable if the decision to rezone the land is quashed.

1. Under s66, the owner or occupier of any land may claim compensation from a planning authority for financial loss suffered as the natural, direct and reasonable consequence of "the land being set aside for a public purpose under a planning scheme". The landowners contend that, subject to the quashing of the Commission's decisions, they are entitled to compensation on that basis. The relevant planning authority is the Hobart City Council ("the Council"). It contends that the challenged amendments do not have the effect of setting the land aside for a public purpose, and that no compensation is payable.

1. The issue as to the availability of compensation under s66 was fully argued before me on 5 December 2002, but I have not heard argument in relation to the other issues raised in the proceedings. I received affidavit evidence in relation to the s66 issue, but the parties may wish to present additional evidence in relation to the other issues. The landowners and the Commission contend that I should make a determination at this stage as to whether compensation is payable pursuant to s66 if the planning scheme has been properly amended. The Council contends that I should not make a determination on the s66 issue at this stage. There is a further complication. The landowners are seeking to re-open their case in relation to the s66 issue, and to read two further affidavits. That application is opposed by the Council.

1. When a draft amendment to a planning scheme is proposed, the Act requires the Commission, if it is satisfied that certain documents are in order, to place the draft amendment on public exhibition, and advertise the exhibition of the draft amendment: s38. Thereafter, representations may be made to the planning authority under s39(1); the planning authority is required by s39(2) to forward to the Commission a report comprising copies of such representations and its opinions and recommendations; the Commission is required by s40 to consider that report and, for that purpose, to hold a hearing in relation to each representation; and the Commission may then take a number of different courses. Under s41(a), it may require the planning authority either to modify the draft amendment, or to alter it to a substantial degree. Under s41(ab), the Commission may do either of those things itself. Under s41(b), it may reject the draft amendment. There is a distinction between modifying a draft amendment and altering a draft amendment to a substantial degree. If a draft amendment is altered to a substantial degree, s41B requires the processes of public exhibition, advertising, reporting, holding a hearing, and so forth to be repeated. In this case, two delegates of the Commission, after holding a hearing, wrote a report dated 29 November 2001 which concluded with a decision purporting to require the Council to modify the draft amendment in accordance with the conclusions contained in their report. When the Commission decides to require a planning authority to modify a draft amendment, s41A(1) requires the Commission to give the planning authority written notice directing it to do so; s41A(2) requires the planning authority to do so; and s42(1) requires the Commission to give its approval to the draft amendment as modified. By virtue of s42(3)(b), the amendment then comes into operation on a date specified by the Commission. In this case, the Commission purported to give its approval to the draft amendment, as modified pursuant to s41, on 13 February 2002. The decisions being challenged in these proceedings are those of 29 November 2001 and 13 February 2002.

1. The various landowners are prosecutors in some proceedings and applicants in others, for reasons that I will explain.  The decision of 29 November 2001 was made before the Judicial Review Act 2000 commenced on 1 December 2001. By virtue of s17(3) thereof, orders of review made under that Act are not available in relation to decisions made before its commencement. However s43 provides that various prerogative writs, including prohibition and certiorari, are no longer to be issued by the Court.  That means that anyone aggrieved by a decision made before 1 December 2001 may neither seek relief under the Judicial Review Act nor obtain an order granting a prerogative writ.  It seems likely that Parliament did not consider what remedies should be available to such individuals.  Under the Supreme Court Rules 2000, r627(2), the Court or a judge may, instead of ordering that a writ of certiorari, mandamus or prohibition issue, make an order having a similar effect to the appropriate writ. More specifically, under r627(2)(a), the Court or a judge "instead of ordering that a writ or certiorari issue, may order that the relevant judgment, order, conviction or other determination be quashed".  There is nothing in the Judicial Review Act to suggest that Parliament wished litigants aggrieved by decisions made before 1 December 2001 to be totally deprived of remedies. It follows that orders under r627(2) are still available when prerogative writs are not.

1. As a result of four separate applications, four general orders have been made for the Commission to show cause why the decision of 29 November 2001 should not be quashed. For each such general order, there is a matching application by the same landowner or group of landowners seeking orders for the review of the decision of 13 February 2002. They contend that the amendment finally approved involves greater restrictions on the use of their properties than the draft amendment of which they were given notice, and that they were denied procedural fairness or natural justice in that they were "not given notice and no [sic] opportunity to be heard in relation to the rezoning of the land". Further, they contend that the Commission made an assumption that they would be entitled to compensation under s66; that the Commission had a duty to determine whether or not they would be entitled to such compensation, rather than making that assumption; and that the Commission erred in law in not making a determination as to that issue. Further, they contend that the amendment of 13 February 2002 was so different from the draft amendment considered by the Commission that it did not constitute a modification of the draft amendment within the meaning of the Act, ss41(a) and 41A, but an amendment of such a completely different nature that it should have been rejected or, alternatively, an alteration to a substantial degree within the meaning of s41(a). Declarations that the applicants are entitled to compensation under the Act, s66, are also sought in each of these four applications.

The application to re-open

1. I think I should deal first with the application to re-open the landowners' case. It would not be appropriate to decide whether to rule on the s66 issue before the other substantive issues if there is any uncertainty as to whether all is in readiness for a ruling on that issue.

1. The first of the two new affidavits that the landowners are seeking to rely on was sworn by one of them, Mr Allen. He deposed to the following. On 11 September 2001, he and his wife applied to the Council for planning approval for the building of a house on their land. On 17 September 2001, a Council officer wrote requesting further information pursuant to the Act, s54. Mr Allen and his wife appealed to the Resource Management and Planning Appeal Tribunal ("the RMPAT"), which held a hearing and made a decision as to what information had to be provided to the Council. On 24 December 2001, a Council officer wrote to Mr Allen and his wife asserting that a draft amendment had been "handed down" on 29 November 2001 and that the Council was prohibited from issuing a permit by the Act, s41AB. On 31 August 2002 a newspaper published an article about the matter, with a picture of an alderman. Mr Allen wrote to that alderman complaining about the situation. On 3 September 2002 he wrote to the Council's general manager, enclosing a copy of his letter to the alderman, and formally applying for compensation. On 9 September 2002 the general manager wrote back saying that the issue of compensation was a matter for the courts to resolve, but offering to arrange a meeting of Mr Allen, the alderman, and himself.

1. The second affidavit was sworn by another of the landowners, Mr Dorney. He is apparently an executor of a deceased estate, and a landowner in that capacity. He deposed to the following. On 20 September 2001, the executors applied to the Council for approval of a plan of subdivision of land that forms part of the estate. The Council's general manager wrote to the estate's solicitors saying that a request for further information would be forthcoming. On 16 October 2001, such a request was made by a letter from a Council officer. The executors appealed to the RMPAT. A mediation conference was held at that tribunal's premises on 27 November 2001. In early December 2001 Mr Allen learned of the decision of 29 November 2001. On 24 December 2001 a Council officer wrote to his brother asserting that a draft amendment had been "handed down" on 29 November 2001, and that the Council was prohibited from issuing a permit by the Act, s41AB.

1. The question whether compensation is payable pursuant to s66 is a question of law. None of the evidence in the two new affidavits can make any possible difference to the determination of that question of law. Any evidence as to the consequences of the amendments, or purported amendments, to the planning scheme can at best be relevant only to the question whether or not the Court should exercise its discretion to grant declaratory relief. I already know that the outcome of these proceedings will affect a significant number of landowners, and that there is a dispute as to whether the Council will have to pay compensation to those affected by the amendments or purported amendments if the decision to make them is not quashed. I do not see how the sort of detailed evidence contained in the new affidavits could make a difference to a decision whether or not to grant declaratory relief.

1. Counsel for the landowners submitted that the new evidence is relevant because it shows that the Council is taking the view that all development is now prohibited in the Community Bushland Zone, and that such an interpretation of the amendments or purported amendments strengthens the need for a declaration.  He referred me to a line of authorities which establish that, when an application is made to re-open a party's case, the critical question is whether it would be in the interests of justice to allow that course to be taken: Williams v Davies (1833) 149 ER 481 at 482; Doe v Bower (1851) 117 ER 1090; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88; Schuster v Sawtschenko (No 2) 10/1970, Chambers J; Mayne v MTT (No 1) A65/1991, Underwood J; R v Chin (1985) 157 CLR 671; Urban Transport Authority v Nweiser (1992) 28 NSWLR 471 at 476, 478; Nikoloski v Ridge Consolidated Pty Ltd (1994) 116 FLR 192 at 195. I do not think it would be in the interests of justice to allow the landowners to re-open their case for the purpose of reading the two new affidavits because I do not believe they would strengthen the case for the granting of declaratory relief. I have therefore decided to refuse the application to re-open.

The s66 issue

1. If, in due course, I make an order quashing the decision to amend the planning scheme, it may be that amendments providing for a community bushland zone or something similar will never be made, and that no questions of compensation will arise. The question whether compensation is payable under s66 is therefore one that might become academic. At least at first glance, logic would seem to dictate that I should first decide whether to quash the decision to amend the planning scheme, and that I need only decide whether compensation is payable if I decide not to quash that decision. However counsel for the landowners and the Commission have advanced a number of arguments as to why I should make a declaration as to the s66 issue at this stage, and it is necessary to examine them.

1. They have submitted that, even if the Commission's decisions are quashed, it will be useful for the parties to have a ruling as to the availability of compensation under s66 because quashing the Commission's decisions will leave it with unfinished business, and consideration will have to be given to the establishment of a community bushland zone or something similar. The availability or otherwise of compensation is likely to be relevant to the Commission's decision-making. However, if the Commission's decisions are quashed, and the affected landowners are given an opportunity to make further representations in relation to the rezoning of their bushland, it by no means follows that the Commission will be likely to decide upon an amendment worded in a way substantially similar to that of 13 February 2002. A declaration as to whether the wording of 13 February 2002 provided for "land being set aside for a public purpose" may be of little or no use in determining whether a differently worded amendment has the effect of setting land aside for a public purpose. Further, representations made by landowners may persuade the Commission to take a course that could not possibly be regarded as involving the setting aside of any land for a public purpose.

1. Apparently the Council has never wished to participate in this litigation except in relation to the availability of compensation under s66 and the question whether the Commission's delegates should have formed a view as to the availability of such compensation when making their decision of 29 November 2001. It has been submitted on behalf of the landowners that, by submitting that declaratory relief should not be granted in relation to the s66 issue at this stage, the Council is seeking to alter its position, and to dictate the way in which the litigation should progress. In my view the Council's submission that I should not make a declaration at this stage does not involve a departure from its decision to concern itself only with s66 matters. I do not understand why the Council should not be free to change its mind as to what issues it takes an interest in, but I do not think it has changed its mind. It certainly is not attempting to dictate how the litigation should proceed. It has made submissions as to how the litigation should proceed, and left the decision to me.

1. It has been submitted on behalf of the landowners that the Council ought not to be able to dictate the way in which they prosecute their applications. They want a declaration in relation to the s66 issue. If I decide that point in their favour, they might be so content to have compensation rights that they abandon their challenges to the Commission's decisions. But I do not think I should assume that that would be the case. Orders for the quashing of the Commission's decisions are being sought and, unless the relevant applications are discontinued, or amended so as to seek only declaratory relief, I think I should proceed on the basis that applications for the quashing of the Commission's decisions are pending in this Court and must be dealt with.

1. If the landowners obtain a favourable declaration as to compensation rights, and do not proceed with their challenges to the Commission's decisions, other landowners might bring proceedings to challenge those decisions, and succeed.  It would be ridiculous if compensation were paid to some landowners on the basis that their land had been set aside for a public purpose, and the Court were later to quash the decisions on which the claims for compensation were based.

1. It has been submitted on behalf of the landowners that the Council may have misjudged matters in failing to institute its own proceedings for the quashing of the Commission's decisions.  I do not see why the absence of any proceedings initiated by the Council should make any difference to my decision as to which issues should be determined first in this litigation.  I have a complex collection of applications before me, and I do not see why the course I take should be affected by the Council having refrained from making this litigation more complicated.

1. The landowners contend that counsel for the Council, Mr McElwaine, left it too late to ask me not to make a declaration in relation to the s66 issue prior to hearing argument as to whether the Commission's decision should be quashed. The hearing of these proceedings was originally listed for 5, 10 and 11 December 2002. Apparently to suit Mr McElwaine's convenience, it was agreed between counsel that the argument concerning s66 would proceed on 5 December, with a view to the other days being devoted to submissions as to the other issues. Then counsel for the landowners and the Commission decided that they would prefer to have a declaration made, one way or the other, as to the s66 issue, and not to make submissions as to the other issues on 10 and 11 December. At the start of the hearing on 5 December, they told me that they wished me to determine the s66 question first. I made a comment about placing the cart before the horse, but said that I was prepared to proceed on that basis if the parties were agreeable. Mr McElwaine apparently stood up, as if to say something, but I did not notice that he had stood up, and he sat down again without speaking. After I had heard submissions from both other counsel, he said that he was not agreeable to the matter proceeding as had been proposed. It certainly would have been preferable if he had butted in at the outset, rather than making a submission some hours later as to how the case should proceed. However I do not think his delay in making his submission should make any difference to the procedural decision that I now have to make.

1. It may be that a declaration in favour of the landowners on the s66 issue would result in them not pursuing their challenges to the Commission's decisions, and that days of Court time would be saved. On the other hand, there is a strong chance that making a determination in relation to the s66 issue will be a waste of my time. Worse still, there is a risk that determining only the s66 issue could result in compensation being paid in consequence of the making of an amendment that is later quashed. In the circumstances, I think the only logical course is first to determine whether the Commission's decisions should be quashed and then, only if they are not quashed, to determine whether compensation is payable under s66.

1. For these reasons, the application to re-open the case of the prosecutors and applicants is refused, and the submission that I should at this stage make a declaration as to whether compensation is payable pursuant to the Act, s66, is rejected. I direct that these matters be listed for the completion of their hearing.