R v Resource Planning and Development Commission; ex parte Dorney (No 2)
[2003] TASSC 69
•11 August 2003
[2003] TASSC 69
CITATION: R v Resource Planning and Development Commission;
Ex parte Dorney (No 2) [2003] TASSC 69
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 DORNEYDORNEY, Patrick Esmond
EWING, Lee Barbara
as personal representatives
of the estate of J H E DORNEY
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION;
HOBART CITY COUNCILR
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION; Ex parte
JEVTIC Andrew Peter
JEVTIC, KayeJEVTIC Andrew Peter
JEVTIC, Kaye
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION;
HOBART CITY COUNCILR
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION; Ex parte
GRAVES, Caroline MayGRAVES, Caroline May
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION;
HOBART CITY COUNCILR
v
RESOURCE PLANNING AND
DEVELOPMENT COMMISSION; Ex parte
ALLEN, Edward George
HANNAFORD, Lyndall JaneALLEN, 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: 11 August 2003
DELIVERED AT: Hobart
HEARING DATES: 5 December 2002, 8, 9 April 2003
JUDGMENT OF: Blow J
CATCHWORDS:
Administrative Law – Judicial review at common law – Procedural fairness – Exclusion of rules of natural justice – Under legislation – Particular cases – Town planning – Draft amendment to planning scheme – Hearing as to representations – Resource Planning and Development Commission (Tas).
Land Use Planning and Approvals Act 1993 (Tas), ss38, 39(1), 40.
Resource Planning and Development Commission Act 1997 (Tas), s10(1)(b)(v).
Vanmeld Pty Ltd v Fairfield City Council (1989) 46 NSWLR 78, followed.
R v Town and Country Planning Commissioner; ex parte Scott [1979] Tas SR 154, distinguished.
Annetts v McCann (1990) 170 CLR 596; Ronaki Pty Ltd v Number One Town and Country Planning Appeal Board [1977] 2 NZLR 174, referred to.
Aust Dig Administrative Law [59]
Administrative Law – Prerogative writs and orders – Certiorari – Practice – Tasmania – Effect of Judicial Review Act 2000 – Quashing orders in lieu of certiorari.
Judicial Review Act 2000 (Tas), s43.
Supreme Court Rules 2000 (Tas), r627(2)(a).
Aust Dig Administrative Law [221]
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Amendments to planning schemes – Alteration of proposed amendments – Whether altered to substantial degree.
Land Use Planning and Approvals Act 1993 (Tas), s41(a).
Resource Planning and Development Commission; ex parte Aquatas Pty Ltd (1998) 100 LGERA 1; R v Land Use Planning Review Panel; ex parte M F Cas Pty Ltd (1998) 103 LGERA 38; R v Resource Planning and Development Commission; ex parte Stevens (1999) 103 LGERA 181 [1999] TASSC 60, referred to.
Hannay v Brisbane City Council (1997) 94 LGERA 212, distinguished.
Aust Dig Environment and Planning [51]
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Compensation – Land set aside for public purpose.
Land Use Planning and Approvals Act 1993 (Tas), s66(1)(a).
Van der Meyden v Melbourne and Metropolitan Board of Works (1979) 45 LGRA 233; Clunies-Ross v The Commonwealth (1984) 155 CLR 193; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566, referred to.
Aust Dig Environment and Planning [52]
REPRESENTATION:
Counsel:
M43/2002, M45/2002, M47/2002, M49/2002:
Prosecutors: A C R Spence
Defendant: T J Ellis SC
Hobart City Council: S B McElwaine
M44/2002, M46/2002, M48/2002, M50/2002:
Applicants: A C 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 69
Number of Paragraphs: 88
Serial No 69/2003
File Nos M43/2002, M44/2002M45/2002, 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 (NO 2)
REASONS FOR JUDGMENT BLOW J
11 August 2003
These proceedings concern Amendment 6/99 to the City of Hobart Planning Scheme 1982 ("the planning scheme") which provides for certain areas of land in the Mount Nelson area to be rezoned as a "Community Bushland Zone", and for extreme 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") and its delegates. In the alternative, they are seeking declarations that they are entitled to compensation under the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s66, as a result of their land having been rezoned.
When a planning scheme is amended, the LUPA Act requires the following sequence of steps to be taken:
(i)The council (referred to in the LUPA Act as "the planning authority") prepares a draft amendment, determines whether it meets the requirements specified in s32, modifies it to meet those requirements if necessary, and certifies the draft amendment as meeting those requirements: s35(1).
(ii)The council gives the Commission a copy of the draft amendment and the instrument containing its certification: s35(4).
(iii)The council places a copy of the draft amendment on public exhibition for a fixed period determined by it, and advertises the exhibition of the draft amendment in such manner as is prescribed: s38.
(iv)Any person may make representations to the council during the exhibition period: s39(1).
(v)The council forwards to the Commission a report comprising a copy of each representation, a statement of its opinion as to each representation, and such recommendations in relation to the draft amendment as it considers necessary: s39(2).
(vi)The Commission considers the draft amendment, the representations, and the council's report, and, for the purposes of such consideration, holds one or more hearings in relation to the representations: s40.
(vii)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.
(viii)If a draft amendment is altered to a substantial degree, s41B requires the processes of public exhibition and advertising, and all subsequent steps, to be repeated. There is no requirement for those steps to be repeated if the draft amendment is modified, as distinct from being altered to a substantial degree: s41A(1).
(ix)If the Commission decides to require the council to modify the draft amendment, the Commission must give notice to the council directing it to undertake the modification, and specifying the manner in which the draft amendment is to be modified. The council must then undertake the modification as directed, and submit the modified amendment to the Commission: s41A(2).
(x)If the Commission is satisfied that the modified draft amendment is in order, it must give its approval to it: s41(1).
(xi)It must then be signed by the chairperson of the Commission: s42(3)(a)(i).
(xii)Unless otherwise specified, the amendment comes into operation seven days after the date on which the Commission gives its approval: s42(4).
Two decisions are challenged in these proceedings. The first is a decision made on 29 November 2001 by two delegates of the Commission, Mr Southee and Mr Vandenberg. After holding a hearing under s40, they wrote a report of that date which concluded with a decision purporting to require the Hobart City Council ("the Council") to modify the relevant draft amendment in accordance with the conclusions contained in their report. The second decision under challenge is one whereby the Commission on 13 February 2002, in purported pursuance of s42(1), gave approval to the modified draft amendment.
The various landowners are prosecutors in some of the present 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 thereof 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 of 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 to quash such decisions, though prerogative writs are not.
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 landowners seeking orders under the Judicial Review Act for the review of the decision of 13 February 2002. The landowners' contentions are as follows:
(i)That the amendment finally approved 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 LUPA Act, ss41(a) and 41A, but an amendment of such a completely different nature that it should have been rejected.
(ii)Alternatively to (i), that the amendment finally approved involved an alteration of the draft amendment to a substantial degree within the meaning of s41(a).
(iii)That the Commission had a common law duty of procedural fairness (or natural justice) which required it to notify individual landowners of the draft amendment and its possible effect at or about the time that the exhibition of the draft amendment was advertised under s38.
(iv)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 in that they were "not given notice and no [sic] opportunity to be heard in relation to the rezoning of the land".
(v)That the delegates of the Commission misdirected themselves as to the entitlement of landowners to compensation under the LUPA Act, s66.
(vi)That the applicants are entitled to compensation under s66.
(vii)Alternatively to (vi), in the event that the "Community Bushland Zone" rezoning would not give rise to an entitlement to compensation under s66, that the delegates erred in law as to the effect of s66.
The Commission contends that neither of the challenged decisions should be quashed on any of the above bases. The Council contends that no compensation is payable under s66. Mr Spence, who appeared for the landowners, asked me to determine all the disputed issues.
Planning schemes are legislative instruments, as are any instruments whereby planning schemes are amended. Because of the wording of the Judicial Review Act, s4(1), which relates to the meaning of the words "decision to which this Act applies", relief under that Act is only available in respect of "a decision of an administrative character". When the chairperson of the Commission signs an amendment pursuant to s42(3)(a)(i), he or she does not make a decision of an administrative character. He or she legislates. But when the process of amending a planning scheme involves a sequence of decisions, the decisions other than the final legislative decision are decisions of an administrative character for the purposes of judicial review legislation: Resort Management Services Ltd v Noosa Shire Council [1995] 1 Qd R 311. Before the chairperson of the Commission signs an amendment pursuant to s42(3)(a)(i), the Commission must make a decision under s42(1) to give its approval to the amendment. In these proceedings, the landowners' applications under the Judicial Review Act seek the setting aside of the Commission's decision to give its approval to the draft amendment, as evidenced by the signature of the chairperson on 13 February 2002. It is on that basis that the Court has jurisdiction under that Act.
Before addressing any of the substantive arguments, it is necessary for me to discuss in some detail the challenged amendments, their effect, and the interests of the landowners who have instituted these proceedings.
The challenged amendments
Amendment 6/99 to the planning scheme relates to an area of over 8 square kilometres which includes Mount Nelson and Porters Hill. The area is roughly triangular in shape. Roughly speaking, it is bounded by the Southern Outlet and Proctors Road on the west, the boundary of the Kingborough Municipal Area (which runs across the southern slopes of Mount Nelson) on the south, and the urban/bushland interface from the furthest extremity of Lower Sandy Bay around to the main campus of the University of Tasmania. The residential areas of Nelson Road from Churchill Avenue to the Mount Nelson Signal Station Reserve are included in the area covered by the amendment.
The planning scheme divides the area that it covers into a number of precincts. Each precinct has its own development standards, based principally on land use and density. The area covered by the planning scheme is also divided into a number of zones, eg, the Residential 2 Zone. In Schedule A to the planning scheme, uses or developments are classified into a number of "use groups". In each zone, each use group is categorised either as permitted as of right (designated by the letter "p"), as discretionary (designated by the letter "d"), or as prohibited (designated by the letter "X"). Part 5 of the planning scheme sets out objectives for each zone, and "statements of desired future character" for each precinct. Clause 5.1.1 provides that the objective of the zone and precinct structure is to provide a basis for managing and co-ordinating the process of change from the existing situation towards a desired state which is expressed in the objectives for each zone and the desired future character for its constituent precincts. It follows that the zone objectives and statements of desired future character must be taken into account by the Council when considering any application for planning permission in circumstances where it has a discretion. A number of the schedules to the planning scheme contain detailed requirements in respect of development.
The main thrust of Amendment 6/99 in its final form was to prevent most of the bushland on the upper slopes of Mount Nelson and Porters Hill being developed. The zoning mix of the area covered by the amendment before it was initiated, and the zoning mix provided for in the draft amendment as originally exhibited under s38, are set out in the following table. All figures in the table are approximate. I have adopted the figures contained in the affidavit of Mr Peacock, a surveyor, which seem to be the most reliable figures I have for the relevant areas.
| Zone | Original Area | Area as per Exhibited Draft |
| Residential 1 | 8.1 ha | |
| Residential 2 | 273.5 ha | 228.8 ha |
| Reserved Residential | 39.9 ha | |
| Low Density Residential | 34.1 ha | |
| Local Service | 7.6 ha | 2.6 ha |
| Rural C | 92.9 ha | |
| Recreation | 137.7 ha | |
| Hills Face | 72.5 ha | |
| Landscape and Skyline Conservation | 254.3 ha | |
| Bushland Conservation and Recreation | 204.3 ha | |
| Special Use 2 | 174.4 ha | 83.2 ha |
In the draft amendment as originally exhibited, the only use group designated as permitted as of right in the Landscape and Skyline Conservation Zone and the Bushland Conservation and Recreation Zone was "passive recreation". However other use groups were designated as discretionary. In the Landscape and Skyline Conservation Zone, these comprised Use Group I (the development of land for a house, ancillary flat, or home occupation), and Use Group IV (the development of land for a domestic business). Those use groups were prohibited in the Bushland Conservation and Recreation Zone but a wide range of commercial uses were designated as discretionary in that zone, which was the original Recreation Zone under a new name.
By the challenged decision of 29 November 2001, the Commission's delegates abandoned the proposals for a Landscape and Skyline Conservation Zone and a Bushland Conservation and Recreation Zone in favour of a Community Bushland Zone covering some 465.6 ha and a modified Bushland Zone covering some 11.2 ha. They decided that all uses other than "passive recreation" were to be prohibited in the Community Bushland Zone, though that use was to be permitted as of right, subject to the provisions of Schedule L, to which I will refer. Schedule A to the planning scheme contains the following definition:
"'passive recreation' means the use of land for a park, garden, playground or reserve for leisure activities but does not include 'active recreation'."
The following definition of "active recreation" appears in the same schedule:
"'active recreation' includes a billiard saloon, bowling alley, dance hall, exhibition hall, funfair, golf course, skating rink, squash court, stadium, tennis court or any other similar sporting or recreation facility, but does not include an amusement machine centre, health studio or community centre."
The amendment as finally approved provided for the zone objective and statements of desired future character for the new Community Bushland Zone and the new Modified Bushland Zone (which was not divided into precincts) to read as follows:
"5.26 COMMUNITY BUSHLAND ZONE
(Use Schedule A ‑ Zone Reference 25)
The objective of the Community Bushland Zone is to identify and provide areas of natural bushland for the conservation of critical, urgent and important priority flora communities, threatened species, wildlife habitats, the protection of significant landscape (cultural and regional) values and the provision of passive recreational opportunities for residents and visitors to Hobart.
Provision should be made for walking tracks that link with public road reservations, important bushland and public lands. The zone may also contain land of lesser conservation, landscape or recreational value, pending the determination of those values and the formulation of sustainable proposals for uses or developments that may be accommodated in the Modified Bushland Zone.
It is intended that the land retained within the Community Bushland Zone will be publicly owned or leased and managed sustainably to further the zone objective.
The Porters Hill Precinct No 39
5.26.1The Precinct contributes to local and regional landscape (cultural and visual) values of the Derwent Estuary and supports vegetation of high (critical, urgent and important priority) conservation value and these areas require careful management.
Development must principally support management for protection of natural landscape and biodiversity values. Subsidiary purposes such as recreational tracks, fire trails, essential utility services, signage and visitor facilities are permissible, but must incorporate current best practices in environmental planning and design.
Proposals for other forms of sensitively located and designed development may be considered, through a process of rezoning and s43A application in accordance with the Act, where a Site Development Plan demonstrates that the objectives of the Modified Bushland Zone and Schedule L can be achieved. A Site Development Plan may be prepared for one or more contiguous properties.
Land within the Precinct that is unable to be rezoned for sustainable private development is intended to be acquired for public purposes.
The Mt Nelson Hillsface Precinct No 46
5.26.2This Precinct contributes to the local and regional landscape (cultural and visual) values of the Derwent Estuary and opportunities for passive recreation in a bushland environment.
Parts of the Precinct support vegetation of high (critical, urgent and important priority) conservation value, threatened species, and wildlife habitats. These areas require careful management.
Development must principally support management for protection of natural landscape and biodiversity values. Subsidiary purposes such as recreational tracks, fire trails, essential utility services, signage and visitor facilities are permissible, but must incorporate current best practices in environmental planning and design.
Proposals for other forms of sensitively located and designed development may be considered, through a process of rezoning and s43A application in accordance with the Act, where a Site Development Plan demonstrates that the objectives of the Modified Bushland Zone and Schedule L can be achieved. A Site Development Plan may be prepared for one or more contiguous properties.
Land within the Precinct that is unable to be rezoned for sustainable private development is intended to be acquired for public purposes.
The Mt Nelson Western Slopes Precinct No 47
5.26.3The Precinct contributes to local and regional landscape values and provides opportunities for education, research and passive recreation in a bushland environment.
Parts of the Precinct support vegetation of high (critical, urgent and important priority) conservation value, threatened species, and wildlife habitats. These areas require careful management.
Development must principally support management for protection of natural landscape and biodiversity values. Subsidiary purposes such as recreational tracks, fire trails, field research, essential utility services, signage and visitor facilities are permissible, but must incorporate, current best practices in environmental planning and design.
Proposals for other forms of sensitively located and designed development may be considered, through a process of rezoning and s43A application in accordance with the Act, where a Site Development Plan demonstrates that the objectives of the Modified Bushland Zone and Schedule L can be achieved. A Site Development Plan may be prepared for one or more contiguous properties.
Land within the Precinct that is unable to be rezoned for sustainable private development is intended to be acquired for public purposes.
5.27 modified bushland zone
The objective of the Modified Bushland Zone is to allow for the limited development and use of land in a safe manner that will not significantly adversely impact upon native wildlife movements, threatened species or flora communities of high (critical, urgent and important priority) conservation value, or upon areas possessing significant landscape (cultural and visual) values.
A permit for development or use in the Modified Bushland Zone must be consistent with, and supported by, a Site Development Plan that demonstrates that the development will not significantly adversely impact on environmental, social or landscape values, and that the land can be managed sustainably to further the zone objective."
Schedule L to the planning scheme
Mr McElwaine submitted on behalf of the Council that, despite the challenged amendment categorising every use other than "passive recreation" as prohibited in the Community Bushland Zone, the challenged amendment actually gave the Council a discretion to permit any development or use in that zone pursuant to Schedule L to the planning scheme ¾a schedule which was added to the planning scheme by the challenged amendment. That schedule reads as follows:
"L bushland management schedule
L1 Objectives and Scope
This Schedule shall apply to all land contained within the Modified Bushland, Community Bushland, Rural, Low Density Residential and Recreation Zones where proposed use or development is to be located within an existing bushland habitat and also to any lots in the Residential 2 Zone that abut those zones.
Within such areas the objectives to be applied are set out as follows:
(i)To ensure the retention of the natural landscape features of the City.
(ii)To ensure that the individual and cumulative impact of development and land use does not adversely affect the bushland character, vegetation, fauna and water quality of such areas.
(iii)To encourage development for which the scale, form and siting are appropriate for and which harmonise with the bushland character of the area.
(iv)To ensure that bushfire protection measures are undertaken with appropriate environmental controls minimising any adverse impact on the surrounding bushland.
L 2 Approval Required
The Council has a discretion to refuse or permit a use or development to which this Schedule applies.
L 3 Assessment Criteria
L.3.1Land affected by this Schedule shall be developed in a manner that is compatible with its biodiversity, catchment and landscape values.
L.3.2All buildings are to be designed to avoid contrasting shape, colour, size and mass such as to remain relatively unobtrusive when viewed from the City, Derwent River and Eastern Shore.
L.3.3An application for use or development on land contained within this Schedule shall include a site development plan. The plan shall set out:-
· a description of the community(s) and species of vegetation on the site;
· where all proposed development is to take place;
· the extent of construction activity and other works including roads/access ways and the associated potential disturbance to soil and vegetation;
· the location of water courses;
· the location of all existing vegetation;
· the extent of vegetation proposed to be removed; and
· proposed rehabilitation, landscaping and the measures proposed to reduce erosion, maintain the ecological and hydrological values of waterways and protect public infrastructure.
L.3.4An application for use or development on land contained within this Schedule must aim to maximise the retention and protection of indigenous plant species (including threatened species). Council may require a report from a suitably qualified person to accompany the application where land is considered likely, by Council's Bushland Manager:
(i)to contain vegetation of critical, urgent or important conservation priority; or
(ii)to contain habitat required to support threatened species; or
(iii)to involve clearing of more than 500m2 in total of bushland vegetation, in one or more stages, on any title.
L.3. 5No works shall be permitted within 30 metres of any watercourse or drainage line unless it can be demonstrated that there will be minimal adverse impact on the environment or compromising of recreational opportunities.
L.3.6An application for use or development on land to which this Schedule applies shall be required to demonstrate it can satisfactorily minimise and manage any bushfire threat with minimal adverse impact upon landscape and environmental values.
L.3.7Roads, access ways and car parking areas are to be sited and designed to minimise visual impact and shall also incorporate features for the management of erosion and stormwater disposal to minimise impact on bushland areas."
Mr McElwaine based his submission on cl L2, which confers on the Council "a discretion to refuse or permit a use or development to which this Schedule applies". Under cl L1, the Schedule applies (inter alia) to all land contained within the Community Bushland Zone where proposed use or development is to be located within an existing bushland habitat. Mr McElwaine argued that it followed that all uses or developments in existing bushland habitats in the Community Bushland Zone were uses or developments to which the Schedule applies for the purposes of cl L2. He submitted that there was an inconsistency between the provisions of Schedule A, whereby all uses other than "passive recreation" were designated as prohibited in the Community Bushland Zone, and Schedule L, which he submitted should be read as providing for all uses in that zone to be discretionary. He advanced a number of arguments as to why Schedule L, thus interpreted, should prevail over Schedule A. He made a submission to the effect that any ambiguity in a planning scheme as to the restriction of landowners' common law rights should be resolved in favour of the landowners. He submitted that Schedule L was a specific provision, that Schedule A was a general provision, and that the specific provisions of Schedule L should prevail over Schedule A. Generalia specialibus non derogant. Finally, he relied on the LUPA Act, s57, which relates to applications for discretionary permits. By virtue of s57(1)(a), that section applies to an application for a permit in respect of a use or development which, under the provisions of a planning scheme, "is of a kind specified as being a use or development which a planning authority has a discretion to refuse or permit". He submitted that, when a particular kind of use or development is specified in a planning scheme as one which the planning authority has a discretion to refuse or permit, the section still applies even if the planning scheme simultaneously specifies that such a use or development is one that the planning authority has no discretion to permit. That is to say, he relied on the literal meaning of the words of s57(1)(a).
When a question of the interpretation of a legislative instrument arises, the instrument must be read as a whole with a view to determining the meaning intended by the legislature. That is fundamental. In this context, the challenged amendment needs to be read as a whole with a view to determining the intention of the Commission or its delegates. It is clear from cl L1 that Schedule L was intended to apply not just to the Community Bushland Zone, but also to land within a number of other zones. These included the Residential 2 Zone, the Rural Zones, and the Low Density Residential Zone, in each of which Schedule A shows Use Group I (the development of land for a house, ancillary flat, or home occupation) to be permitted as of right. A possible interpretation of the amendment, therefore, is that Schedule L was intended to give the Council a discretion to refuse permission for the development of land for a house, ancillary flat, or home occupation in the parts of those zones to which it applied. If the interpretation suggested by Mr McElwaine is correct, the Commission or its delegates must have intended the Council to have a discretion to permit any use or development at all within an existing bushland habitat in the Modified Bushland Zone, the Community Bushland Zone, the Rural Zones, the Low Density Residential Zone and the Recreation Zone, while Schedule A would continue to prohibit many types of development in those zones outside existing bushland habitats. Such a result would be absurd. I think the only sensible interpretation, reading the amendment as a whole, is one whereby Schedule L was intended to confer a discretion in situations where developments would otherwise be permitted as of right.
Clause L2 must have been intended to achieve that objective. It was very badly worded. It referred to "a use or development to which this Schedule applies", when the Schedule expressly provides that it applies to certain land, rather than to any uses or developments. For the reasons I have stated, I think it must have been intended to mean that the Council has a discretion to refuse or permit a use or development that would otherwise be permitted as of right in respect of land to which Schedule L applies. It thus appears that the intended effect of the amendment was to create a Community Bushland Zone where any development other than for "passive recreation" was prohibited, and development for "passive recreation" was discretionary in existing bushland habitats, but otherwise permitted as of right.
Discretion to permit "prohibited" uses
Under cl 8.6.2 of the planning scheme, the Council has a very limited discretion to "permit the use of land for a prohibited use". Under that provision, it may only do so "under the circumstances referred to in Principle 3 or Principle 4 of the Planning Scheme". Those words refer to provisions, in Part 4 of the planning scheme, which read as follows:
"P3Notwithstanding the provisions of any Part of or Schedule of this Planning Scheme, the Council has a discretion to:
(a) permit an existing use to change to any use more in conformity with the Desired Future Character of the relevant Precinct; or
(b) permit an existing building to be used for a use that is prohibited under Schedule A where the building cannot be economically adapted for a use that is permitted or discretionary, provided that the new use is more in conformity with the Desired Future Character of the Precinct than the use for which the building was last used.
P4 Council has a discretion to permit:
(a)the expansion of an existing use;
(b)the extension of an existing building and/or;
(c)the change of use of any land or building;
for the purposes of facilitating:
(i)the preservation of the character of land and/or building or works of heritage significance, or
(ii)the continuance of a lawful activity.
provided it can be demonstrated by the proponent that the proposed use or development is compatible with the Objectives in Schedule 1 of the Land Use Planning and Approvals Act 1993."
It seems to me that there must be little, if any, scope for the operation of these provisions in the Community Bushland Zone. The general nature of that zone is such that it must contain little by way of existing uses or existing buildings. Counsel did not submit that these provisions were significant in relation to the impact of the challenged amendments.
The prosecutors/applicants
The landowners who have instituted these proceedings comprise (i) a Mr Dorney and a Mrs Ewing as executors of the estate of the late James Henry Esmond Dorney; (ii) a couple named Jevtic; (iii) a Mrs Graves; and (iv) a Mr Allen and his wife, Ms Hannaford.
The late Mr Dorney died in 1991. His estate includes five affected properties with a total area of about 32 ha. Before the amendment of the planning scheme was proposed, some of that land was in the Residential 2 Zone, some in the Hills Face Zone, and some in the Recreation Zone. The draft amendment as exhibited provided for all the estate's land to be in the Landscape and Skyline Conservation Zone. The Council made a recommendation under s39(2) that affected the land in that proposed zone, but only in relation to maximum permitted floor areas. The delegates who conducted the s40 hearing decided to require that 0.3 ha of the estate's land, on which a house is erected, become part of the new Modified Bushland Zone, and that the balance of the estate's land become part of the new Community Bushland Zone.
The executors of the Dorney estate were represented at the s40 hearing by Mr Spence, as were Mr Allen and Ms Hannaford, and a number of other people. After that hearing, but before the delegates made any decision, one of the delegates who conducted the hearing, Mr Vandenberg, wrote Mr Spence a letter dated 25 July 2001, which included the following:
"There was substantial evidence to suggest that for a range of ecological, landscape and infrastructure reasons, the majority of the bushland on the upper slopes of Mt Nelson should not be developed. It would seem that an appropriate planning control to achieve that outcome would be a variant of the Bushland Conservation and Recreation zone but modified to prohibit Use Classes IX, X, XI, XII, XIV, XV, and XVI. The only permitted use in the zone would then be Use Class XVII, the development of land for passive recreation. I will refer to this suggested zone as the Mt Nelson Bushland Conservation zone (MNBC) to distinguish it from the Bushland Conservation and Recreation zone presented in Amendment 6/99."
As a result of that letter, the executors and Mr Spence's other clients were afforded an opportunity to make written submissions as to a proposal whereby some or all of their land might have been included in a zone in which all development other than for "passive recreation" would be prohibited.
Dr and Mrs Jevtic purchased a 5 acre property in 1997 for about $230,000. Their property consists of vacant land in O'Connnor Court, Sandy Bay. Before the amendment of the planning scheme was proposed, the property was in the Residential 2 Zone, which meant that development for a house was permitted as of right. When the draft amendment was first exhibited, it was not proposed that the zoning of the property be changed. However it was proposed that the property, which had been part of Precinct 39, would become part of Precinct 33, in which a greater density of residential development is permitted. Dr and Mrs Jevtic were aware of the existence of the draft amendment. Dr Jevtic made a representation to the Commission pursuant to s39(1) by letter dated 6 June 2001. The Council made a recommendation under s39(2) which would have resulted in the Jevtics' property forming part of a new precinct with greater restrictions on the density of residential development than originally existed. Dr and Mrs Jevtic did not attend the hearing held by the Commission's delegates under s40. In the delegates' report of 29 November 2001, it was decided to require that their land be included in the Community Bushland Zone. Neither the Commission nor the delegates afforded them any opportunity to be heard in any way as to such rezoning. As a result of making enquiries, they learned in early February 2002 that their land was to be in the Community Bushland Zone, and that every use apart from "passive recreation" was to be prohibited.
Mrs Graves owns a property with an area of 1.176 ha. She lives in a house on the property. She inherited the property from her husband, who died in June 2000. Prior to the initiation of the draft amendment, this property was in the Residential 2 Zone. The draft amendment as exhibited provided for it to be in the Landscape and Skyline Conservation Zone. Mrs Graves was aware of the draft amendment, but was not aware that this property was affected by it. During 2001, she telephoned an officer of the Council about the draft amendment, and apparently was incorrectly told that this property was not part of the land affected. The delegates who conducted the s40 hearing decided to require the site of her house to form part of the Modified Bushland Zone and the balance of her property to be included in the Community Bushland Zone. Neither the Commission nor the delegates afforded her any opportunity to be heard in any way in relation to such rezoning.
Mr Allen and Ms Hannaford purchased a two-thirds interest in a property known as 1A Enterprise Road in July 2000 for $520,000. Their purchase occurred after the exhibition of the draft amendment. Before the amendment was proposed, parts of the property fell within four different zones, namely the Residential 2 Zone, the Hills Face Zone, the Recreation Zone, and the Reserved Residential 2 Zone. Residential development was designated as permitted as of right in the Residential 2 Zone, discretionary in the Hills Face Zone, and prohibited in the Recreation Zone. In the Reserved Residential 2 Zone, residential development was to remain discretionary until services became available, and thereafter was to be permitted as of right. The draft amendment as exhibited provided for some of this couple's land to be in the Landscape and Skyline Conservation Zone, and for the rest of it to be in the Bushland Conservation and Recreation Zone. It provided for residential development to be designated as prohibited in the latter proposed zone, but as discretionary in the former, subject to requirements that it be of a low density, with a minimum lot size of 1,000 square metres instead of the 550 square metres originally permitted in the Residential 2 Zone. The Council made recommendations under s39 for new lots to be allowed in the proposed Landscape and Skyline Conservation Zone up to the 225 metre contour. Mr Allen participated in the hearing conducted by the Commission's delegates pursuant to s40. The delegates decided to require the inclusion of all the land in which Mr Allen and Ms Hannaford held an interest in the Community Bushland Zone. As I have said, Mr Allen and Ms Hannaford were amongst the clients of Mr Spence who were afforded an opportunity to comment on a proposal whereby some or all of their land might have been zoned so as to prohibit any development other than for "passive recreation".
Modification, alteration to a substantial degree, or transformation?
As I have said, the delegates who conducted the s40 hearing made a decision on 29 November 2001 purporting to require the Council to modify the draft amendment. The landowners contend that the changes decided upon by the delegates were so radical as to involve a transformation of the draft amendment into something different, or at least an alteration of it to a substantial degree. If a transformation was appropriate, the draft amendment should have been rejected, leaving the way clear for a fresh draft amendment to be initiated.
Under the LUPA Act, s41(a), the delegates, after conducting the hearing, had the power to require the Council either to modify the draft amendment, or to alter it to a substantial degree. As I have said, if a draft amendment is altered to a substantial degree, s41B requires the processes of public exhibition and advertising, and all subsequent steps, to be repeated, whereas modification does not require any of those steps to be repeated. It has been recognised that, following a s40 hearing, the Commission might decide upon changes to a draft amendment that are too substantial to amount to a modification, or even to an alteration to a substantial degree, but go so far as to transform the draft amendment into something new and different: R v Land Use Planning Review Panel; ex parte M F Cas Pty Ltd (1998) 103 LGERA 38 at 51, 59 (Wright J); R v Resource Planning and Development Commission; ex parte Stevens (1999) 103 LGERA 181 at 185 – 187; [1999] TASSC 60 at pars10 – 22 (Underwood J). The distinction between a modification or alteration on the one hand and a transformation or replacement on the other has been recognised in other contexts: Legg v Inner London Education Authority [1972] 3 All ER 177; Addicoat v Fox (No 2) [1979] VR 347 at 363; Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442 at 446 - 447.
Mr Spence submitted that the question whether the changes to the draft amendment involved a modification, an alteration to a substantial degree, or a transformation, was a question of law, and not a question of fact for the Commission or its delegates, relying on Addicoat v Fox (No 2) (supra), and on Marock Pty Ltd v Billjoy Pty Ltd [1981] VR 413. In Addicoat v Fox (No 2), Brooking J had to decide whether an application for a permit should be interpreted as an application for permission to construct a new shopping complex, or as an application merely for permission to use the subject land as a shopping complex. His Honour held that the question as to the proper interpretation of the permit application was a pure question of law. At 358 he referred to Halsbury, 4 ed, vol 12, par1462 ¾a paragraph concerned with the proposition that the interpretation of a written document is generally speaking a matter of law for the court. A question arose as to whether, on an application for a permit merely to use the land for a particular purpose, a permit could be granted with conditions which authorised the construction of a new shopping complex. As a result of that issue arising, Brooking J adverted to the distinction between a modification and a transformation. However that case is not authority for the proposition that the distinction between a modification and a transformation is a pure matter of law. It is authority for the proposition that the interpretation of an application for a planning permit involves a pure question of law. Marock Pty Ltd v Billjoy Pty Ltd also concerned a question as to the interpretation of an application for a planning permit, namely whether the application was for a permit to use and develop certain land, or for a permit merely to use that land. Tadgell J held that that question was a question of law, following Addicoat v Fox (No 2). Marock had nothing to do with the distinction between a modification and a transformation. Thus neither of the cases relied on by Mr Spence is authority for the proposition that such a distinction involves a pure question of law.
No doubt any question as to the meaning of the expressions "modify" and "alter to a substantial degree" involves pure questions of law. And no doubt the question whether a change to a draft amendment constitutes a modification, an alteration to a substantial degree, or a transformation of the draft amendment into something radically different, is a question of fact for the Commission or its delegates. However the question whether a particular one of those three categorisations is reasonably open to the Commission or its delegates is a question of law. Such a question involves a value judgment, rather than the interpretation of a document. If the Commission or its delegates decide that a change to a draft amendment constitutes a modification, as distinct from an alteration to a substantial degree, and as distinct from a transformation or replacement, and the categorisation of the proposed change as a modification is not reasonably open to the Commission or its delegates on the facts, certiorari would have been available at common law, and the decision can still be quashed under r627(2)(a). I must therefore consider whether it was reasonably open to the delegates to categorise the changes that they required to the draft amendment as a modification.
In Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450, Gleeson CJ, Gummow and Callinan JJ said the following:
"Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law Vetter (1999) 18 NSWCCR 34 at 48 [44]-[45]. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138:
'[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law'."
For reasons that I will state in due course, I have decided to reject Mr Spence's submission that the changes required by the delegates to the draft amendment amounted to a transformation. In order to evaluate that submission it is necessary to undertake a comparison of the draft amendment as originally advertised and the amendment in its final form. That comparison reveals the following significant changes, as well as some consequential and very minor changes:
(a)The draft amendment as exhibited provided for the Recreation Zone to be renamed as the Bushland Conservation and Recreation Zone. The final document did not rename the Recreation Zone, but left it in existence elsewhere, and rezoned all land in the area covered by the amendment that was formerly in that zone.
(b)The draft amendment as exhibited provided for the creation of two new zones ¾ the Low Density Residential Zone and the Landscape Skyline and Conservation Zone. The final document provided for the creation of three new zones. The Low Density Residential Zone was still provided for. However, the provision for a Landscape Skyline and Conservation Zone was removed. New provisions were made for a Modified Bushland Zone and a Community Bushland Zone.
(c)Changes were made to the zones and zoning mix as set out in the following table. All figures in the table are approximate. Once again, I have adopted the figures provided in the affidavit of Mr Peacock, the surveyor:
Zone
Area as per Exhibited Draft
Final Area
Residential 2 228.8 ha 210.6 ha Low Density Residential 34.1 ha 44.2 ha Local Service 2.6 ha 0.8 ha Landscape and Skyline Conservation 254.3 ha Bushland Conservation and Conservation 204.3 ha Community Bushland 465.6 ha Modified Bushland 11.2 ha Special Use 2
83.2 ha
77.0 ha
(d)As I have said, the only use group designated as permitted in the Bushland Conservation Zone is "passive recreation" whereas the abandoned proposals for a Landscape and Skyline Conservation Zone provided for residential and domestic business uses to be discretionary, and the draft amendment as exhibited provided for the Bushland Conservation and Recreation Zone to retain as discretionary uses the wide range of commercial uses that were discretionary in the Recreation Zone. More specifically, the discretionary uses in the Landscape and Skyline Conservation Zone were to comprise Use Group I (the development of land for a house, ancillary flat, or home occupation) and Use Group IV (the development of land for a domestic business), and the discretionary uses in the Bushland Conservation and Recreation Zone were to comprise Use Groups IX – XII (the development of land for a shop, take-away food shop, or a bank; the development of land for a holiday unit, a hotel, a motel, a club, a cinema, a theatre, a restaurant, a discothèque, bed and breakfast accommodation, or backpacker accommodation; the development of land for active recreation; and the development of land for an amusement machine centre, or a health studio, respectively). In the final document, only "passive recreation" was designated as permitted as of right in the Modified Bushland Zone, but Use Groups I, II, III, VII and X were designated as discretionary (respectively, the development of land for a house, ancillary flat, or home occupation; the development of land for a flat or elderly person's unit; the development of land for a multiple dwelling; the development of land for an educational establishment; and the development of land for self-contained visitor accommodation, a hotel, a motel, a club, a cinema, a theatre, a restaurant, drive-through take-away, a discothèque, bed and breakfast accommodation, or backpacker accommodation).
(e)The final document added a cl 2.8 which did not appear in the draft amendment as exhibited. That clause required any application to use or develop land in the Modified Bushland Zone to be accompanied by a development and environmental management plan, and made detailed provisions as to the contents of such a plan.
(f)The final document, unlike the draft amendment as exhibited, provided for creation of three new precincts in the Community Bushland Zone namely the Porters Hill Precinct (No 39), the Mount Nelson Hillsface Precinct (No 46) and the Nelson Western Slopes Precinct (No 47). In the draft amendment as exhibited, such precincts were to be created in the Landscape Skyline and Conservation Zone.
(g)The two documents contained different versions of cl 5.8.8, which is the statement of desired future character for the Upper Churchill Hill Slopes Precinct (No 30C). In the draft amendment as exhibited, the proposed clause read as follows:
"5.8.8_The Precinct retains the existing development patterns along the hillslopes above Churchill Avenue which form the foothill character of Mt Nelson. Further development which reduces the amenity of the existing bushland character will not be permitted.
New development should not extend further than is necessary to gain access that is practical and environmentally satisfactory, and is to encourage vegetation retention as a landscape element."
In the final document, the clause read as follows:
"5.8.8The Precinct contributes to the character of the Mt Nelson area. It represents the interface between the bushland covered higher slopes of Mt Nelson and the urban landscapes of the lower slopes.
Vegetation must be sensitively managed to minimise bush fire hazard by reducing ground level fuel loads around buildings, minimise visual impact, and minimise risk of weed invasion and vegetation disease of the bushland. A canopy of mature trees that appears continuous from more distant metropolitan viewing points should be maintained.
Further subdivision of existing lots that abut the Community Bushland Zone or Modified Bushland Zone may not be appropriate except in accordance with a Site Development Plan that demonstrates appropriate resolution of environmental, hazard, access, servicing and visual impact issues.
The construction of additional houses on already developed lots may not be appropriate except within building envelopes indicated on a Site Development Plan. Buildings must be located and designed to remain relatively unobtrusive in local and regional landscape settings.
Siting and construction of buildings and works must be managed to protect water quality, bushland, public infrastructure, and streamside vegetation from the adverse effects of litter, weeds, nutrients, erosion and sedimentation."
(h)The final document added two paragraphs to cl 5.18.3 as it appeared in the draft amendment as exhibited. That clause is the statement of desired future character for the Mount Nelson Precinct (No 37C). The new paragraphs read as follows:
"Bushfire threat minimisation and management must be addressed where development is proposed in bushfire prone areas as indicated on Council's bushfire prone area mapping, and must be subject to special consideration in the further development of existing lots abutting bushland in other zones.
The siting and construction of additional houses on some land on the periphery of the Precinct must have regard to the limits of existing service infrastructure (ie, sewer and water supply) and may require the extension of that infrastructure."
(i)Clauses 5.17.1 and 5.17.2, which are the statements of desired future character for the University Precinct (No 29) and the College Precinct (No 38) were also expanded to require that a site development plan be provided in connection with any proposed development, and by imposing requirements as to the contents of such plans.
(j)Clause 5.2.5, which is the statement of desired future character for the Low Density Residential Zone, was expanded to include a reference to the management of the zone "for the conservation of critical, urgent and important priority forest communities and threatened species", and by providing that "Clustering of houses may be an acceptable way of providing services and improving fire protection at the bushland/development interface."
(k)Clause 5.25.1, which is the statement of desired future character for the Albion Heights Precinct (No 45) was reworded.
(l)The draft amendment as exhibited contained a cl 5.26 which set out zone objectives and statements of desired future character for the Landscape and Skyline Conservation Zone and its proposed precincts. That was replaced by new cls 5.26 and 5.27, which I have already set out in full. They set out zone objectives and statements of desired future character for the Community Bushland Zone and its precincts, and the Modified Bushland Zone, respectively. I do not think I need set out the provisions of the superseded cl 5.26. Generally speaking, they were less restrictive than the provisions by which they were superseded.
(m)The two documents contained different provisions in Table B1 as to basic plot ratios, maximum plot ratios, and dwelling unit factors in the affected precincts. A basic plot ratio is the ratio of the floor area of a development to the site area. A maximum plot ratio is a ratio of floor area to site area which no development may exceed. The draft amendment as exhibited provided for both the basic plot ratio and the maximum plot ratio to be 0.3 in the Upper Churchill Hillslopes, Mount Nelson Bends, Mount Nelson, Albion Heights, Porters Hill, Mount Nelson Hillsface and Nelson Western Slopes precincts. The final document provided for both ratios to be 0.25 in the first four of those precincts, subject to a provision reading "The maximum permitted floor area for any lot with an area greater than 1500m2 is 375m2. Any proposal for floor area in excess of 375m2 is discretionary". No provision was made as to either ratio in the last three of those precincts, apparently because they had become parts of the Community Bushland Zone, in which development was not contemplated. Similarly, the draft amendment as exhibited provided for a dwelling unit factor of 20,000 in those precincts, but the final document made no provision as to a dwelling unit factor in those precincts. A dwelling unit factor is the number by which the site area (apparently expressed in square metres) is divided in order to calculate the maximum number of dwelling units permitted on a site. Similarly, provisions were made in the draft amendment as exhibited, but not in the final document, for minimum lot areas, minimum frontages, and minimum inscribed circles in respect of those three precincts.
(n)In Schedule E to the scheme, namely the Traffic, Access and Parking Schedule, the final document provided for the Modified Bushland Zone and the Community Bushland Zone in lieu of the provision in the draft amendment as exhibited in respect of the Landscape and Skyline Conservation Zone. The former provision read as follows:
"E.9.24Parking and access will be required to demonstrate that minimal visual impact will occur for any use or development. The roading network both public and private will be kept to a minimum. Pavement widths should be no greater than needed to provide adequate access. Steep or exposed road alignments are to be avoided whilst edge surfaces are to be rehabilitated with vegetation cover."
The new provisions reads as follows:
"Zone 24 Modified Bushland Zone
E.9.24Vehicle parking and access proposals for any development or use must demonstrate that they will not significantly adversely impact upon native wildlife movements and habitats, threatened species, or flora communities of high (critical, urgent and important priority) conservation value, or upon areas possessing significant landscape (cultural and visual) values.
The roading network must be kept to a minimum, but consistent with fire safety principles and requirements. Pavement widths should be no greater than necessary to provide adequate access, egress and manoeuvring by emergency and normal two wheel private vehicles.
Steep or exposed road alignments are to be avoided and stormwater discharges are to be managed to minimise adverse impacts on nearby lands and watercourses. Exposed, non-trafficable surfaces are to be rehabilitated with endemic native vegetation. The introduction of exotic species either as seeds or plantings or in imported soils and mulches must be avoided.
Zone 25 Community Bushland Zone
E.9.25In the limited circumstances where vehicle parking and access is required in this zone the principles stated in clause E.9.24 apply."
(p)The final document contained a provision in cl K3.1, which relates to residential density, that did not appear in the draft amendment as exhibited. The clause tabulates a series of performance criteria and, against each, a list of acceptable solutions. The final document provided for acceptable solution AS1.1 to include the words "and additionally in Precincts 30C, 36 and 37C the rear area shall be of sufficient size to enable a minimum lot of 1000m2 to be achieved in the event of subdivision".
(q)The final document included Schedule L, which did not appear in the draft amendment as exhibited. I have already set it out in full.
It emerges from this comparison of the draft amendment as exhibited and the final document that the most substantial differences between the two documents concerned the decision to zone approximately 465.6 ha of land as a new Community Bushland Zone, in respect of which no use groups other than "passive recreation" were designated as permitted or discretionary, whereas the draft amendment as exhibited provided for about 254.3 ha to constitute a Landscape and Skyline Conservation Zone, in which a range of domestic uses were to be designated as discretionary, and for about 204.3 ha to form part of a Bushland Conservation and Recreation Zone, in which a wide range of commercial uses were to be designated as discretionary. In all other respects, the differences between the draft amendment as exhibited and the final document were not radical, in my view. Whilst the differences between the two documents in relation to zones, permitted and discretionary uses within zones, and the zoning mix were significant, I do not think that the differences, considered in the aggregate, must necessarily be regarded as transforming the draft amendment as exhibited into a new and different amendment, as distinct from an amendment that had been modified or altered to a substantial degree. Both documents provided for the development and use of bushland on and around Mount Nelson to be restricted in order to contain residential development and maintain the Mount Nelson skyline. In my judgment the difference between the two documents was not so great that the Commission or its delegates could not properly have regarded the changes as amounting to something other than a transformation. I therefore turn to the more difficult question of whether it was reasonably open to the delegates to categorise the final document's changes to the draft amendment as exhibited as amounting only to a modification, as distinct from an alteration to a substantial degree.
As to the approach to be taken in relation to that question, I agree with the view expressed by Cox CJ in R v Resource Planning and Development Commission; ex parte Aquatas Pty Ltd (1998) 100 LGERA 1 at 8 where his Honour said the following:
"Section 41B requires that if a draft amendment has been altered to a substantial degree rather than merely modified, it must be re-certified and re-exhibited with consequential rights to make representations. The prosecutor first argues that the changes to the amendments were not modifications, but were alterations to a substantial degree. It is not disputed that it is for the Commission to decide into what category the changes … fell. Such decisions involve matters of degree and unless the categorisation is patently erroneous or it is shown that in forming that judgment the Commission placed reliance upon wholly irrelevant considerations, it is not for this Court to substitute its own view should that be at variance with that of the Commission."
His Honour cited with approval a passage in the judgment of Anderson J (of the Supreme Court of Victoria) in Bernard Rothschild Pty Ltd v City of Melbourne (supra) at 446 – 447 in which his Honour said the following:
"Of course, a recognition of the specialist qualifications of members of the tribunal in relation to town planning principles does not place their deliberations or conclusions beyond review by this Court, but it does involve an acknowledgment that where there is a discretion, as there is here, to allow a departure from a prescribed standard, the tribunal may employ its expertise within reasonable limits to determine whether the departure is a modification."
The two passages that I have just quoted were cited with approval by Underwood J in R v Resource Planning and Development Commission; ex parte Stevens (supra) at 186 (pars15, 16). The relevant passages in the judgment of Cox CJ in Aquatas were cited with approval by Wright J in R v Land Use Planning and Review Panel; ex parte M F Cas Pty Ltd (supra) at 49.
In their report dated 29 November 2001, the Commission's delegates, after deciding upon what changes they wanted made to the draft amendment as exhibited, addressed the question of whether the proposed changes amounted to modifications or alterations to a substantial degree, referred to the judgment of Cox CJ in Aquatas, and concluded as follows:
"We consider that the principal intentions of the amendment have not been changed by the conclusions that we have reached. The Council sought a number of changes to the Plan and the Ordinance. We have required some different mechanisms to be employed to achieve Council's intentions. But overall, in our view, the required modifications do not deviate sufficiently from the certified draft amendment to make it 'altered to a substantial degree'."
The delegates referred to the fact that the processes of public exhibition, representations and so forth would have to be repeated in relation to an alteration to a substantial degree, as distinct from a modification. They observed that the principal intentions of the amendment had not been changed by their conclusions, and that they had required some different mechanisms to be employed to achieve the Council's intentions. Otherwise, they did not disclose any reasoning that led them to the conclusion that the changes they required did not involve anything more than the modification of the draft amendment as exhibited. With all due respect to the delegates, I think that the fact that the principal intentions of the amendment had not been changed was something more relevant to the question whether the changes that they required amounted to a transformation, rather than the question whether the amendment was being modified, as distinct from being altered to a substantial degree. However the landowners have not challenged the delegates' decision on the basis that the delegates applied the wrong test in deciding what constitutes a modification. Instead they contend that it was not reasonably open to the delegates to conclude that the changes they required amounted only to a modification.
The only basis for distinguishing between a modification and an alteration to a substantial degree is that the latter involves a substantial degree of change, whereas the former does not. The use of the word "substantial" in the relevant sections of the LUPA Act has been considered in a number of cases. In R v Resource Planning and Development Commission; ex parte Stevens (supra), Underwood J reviewed the earlier decisions and said the following at 186 - 188 (pars20 – 22):
20 "'Substantial', used in its qualitative and not quantitative sense, as is obviously the case in s41, is a relative term and of necessity lacks precision. With respect to the use of that word in the Trade Practices Act 1974 (Cth), Deane J said in Tillmanns Butcheries Pty Ltd v A M I E U (1979) 27 ALR 367 at 382:
'The word "substantial" is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase "substantial loss or damage", it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ([1948] 1 All ER 1 at 11; [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to "considerable, solid or big", he said: "Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case ...".'
21 In my opinion, little assistance is gained from trawling through the cases which have considered the meaning of the words 'substantial' and 'alter' enacted in entirely different legislative contexts because the context in which any expression is used has an important bearing on the meaning to be attributed to that expression. See Taylor v Public Service Board(NSW) (1976) 137 CLR 208 at 213. In considering the breadth of the expression 'alter to a substantial degree', regard must be had to the provisions of the Act, ss41A and 41B which require the Council to put the alterations on public exhibition once they have been effected and thereafter the whole process of representations, Council report, Commission hearing and decision is repeated. These provisions make it likely that the intention of Parliament was to give the broadest possible scope to the expression 'alter to a substantial degree'. To do so promotes the general purpose and scheme of the Act. The process of public consultation following such an alteration is precisely the same as that which follows initiation of an amendment. Indeed, having regard to the context, I find it difficult to envisage an alteration that is so substantial that it has the effect of transforming the proposed amendment into something quite different.
22 Whether the Commission has directed an alteration to a substantial degree or directed an alteration so substantial that it changes or transforms the proposal into a different proposal, is a question of degree and impression. Consideration of this issue needs to bear in mind that an alteration that has the effect of changing the essential core or substance of a proposed amendment will nonetheless be an alteration to a substantial degree, for the word 'substantial' encompasses the essential essence of a thing. Further, it must be borne in mind that the critical aspect of this part of the legislation is the scope of the word 'modification', as opposed to 'alter[ation] to a substantial degree' for unlike an alteration to a substantial degree, a modification does not require the Council to repeat the process of exhibiting the proposed amendment again, receiving representations and making a report, nor does it require the Commission to hold another hearing. Given that the 'Commission, with its expertise is well placed to identify the essence of the amendment' (Aquatas at 7), this Court will be very slow to reach the conclusion that an alteration described by it as an alteration to a substantial degree, is more than that, and constitutes a change so far reaching that it converts the proposed amendment into an entirely different proposed amendment."
The final document contained some very significant changes from the draft amendment as exhibited. It provided for no uses other than "passive recreation" to be permitted or discretionary in some 465.6 ha of land, whereas the draft amendment as exhibited provided for certain domestic uses to be discretionary in some 254.3 ha in the Landscape and Skyline Conservation Zone, and for a wide range of commercial uses to be discretionary in some 204.3 ha in the Bushland Conservation and Recreation Zone. Members of the public were likely not only to have views as to the appropriateness of such changes, but also as to the related issue of whether compensation pursuant to the LUPA Act, s66, should be payable in consequence of all uses other than passive recreation being designated as prohibited in the Community Bushland Zone. That is very significant because the critical aspect of the legislative distinction is that only an alteration to a substantial degree requires repetition of the process of public exhibition, advertising, representations, a council report thereon, and a hearing. It is true that the draft amendment as exhibited did not provide for any uses other than "passive recreation" to be permitted as of right in the proposed Landscape and Skyline Conservation Zone or the Bushland Conservation and Recreation Zone, as the Recreation Zone was intended to be renamed. The changes to the draft amendment would have been more substantial if they involved the designation of use groups being changed from "p" (permitted) to "X" (prohibited). Despite that, designating all use groups except "passive recreation" as prohibited in a large zone, and making "passive recreation" uses discretionary in the areas covered by Schedule L, in my view involved a substantial degree of change from what was proposed in the draft amendment as exhibited. The final document allowed practically no use or development in relation to a large area of suburban land. An alteration of a draft amendment to prohibit almost every use or development in relation to an area of land is almost as substantial an alteration as one can get. It follows, in my view, that it was not reasonably open to the delegates to categorise the changes that they required to the draft amendment as exhibited as mere modifications, as distinct from alterations to a substantial degree. It follows that they erred in law by categorising those changes as modifications, and that their decision of 29 November 2001 is able to be quashed pursuant to the Rules of the Supreme Court, r627(2)(a).
Procedural fairness ¾ applicability of the common law
Mr Spence submitted that the Commission and its delegates were obliged by the common law to afford procedural fairness initially to all landowners who would be affected by the draft amendment, and subsequently to all landowners who would be affected by the Community Bushland zoning. He submitted that the common law obliged the Commission initially to notify landowners individually as to the draft amendment. He submitted that after the s40 hearing, when the delegates were contemplating changes to the draft amendment to create a zone in which only "passive recreation" uses could be permitted, the common law obliged the Commission to notify individual landowners of what was being contemplated, and to afford them an opportunity to make submissions.
Mr Ellis SC submitted on behalf of the Commission that any common law requirement as to procedural fairness or natural justice was impliedly excluded by the provisions of the LUPA Act as to the public exhibition of draft amendments, and related advertising.
The common law obligation to afford procedural fairness attaches to the exercise of public power, subject to any statutory modification or exclusion of the common law in that regard: Kioa v West (1985) 159 CLR 550 at 576 - 584, 632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574 - 575; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 57. A decision which attracts the duty to afford procedural fairness is one which directly affects one or more persons or corporations individually, as distinct from a policy or political decision that affects individuals or corporations only as members of the public or a class of the public: Salemi v Mackellar (No 2) (1977) 137 CLR 396 at 452; Kioa v West (supra) at 584; Annetts v McCann (supra) at 598. The draft amendment as exhibited, even if not subsequently modified or altered, was something that had the potential directly to affect the individual interests of the various landowners. It follows that the Commission owed the landowners a common law duty to afford them procedural fairness unless that duty was abrogated or modified by statute. Further, the delegates' decision of 29 November 2001 purporting to require the Council to modify the draft amendment and the Commission's decision to give its approval to the draft amendment as purportedly modified were both decisions which directly affected the various landowners individually, with the result that the Commission and its delegates must have been subject to the common law duty to afford procedural fairness unless it was abrogated or modified by statute.
Whether the duty to afford procedural fairness has been abrogated or modified by statute depends on the wording and interpretation of the applicable statute. Sometimes a statute expressly provides that its provisions constitute a code, and thus makes it clear that the common law as to procedural fairness has been superseded. In Hannay v Brisbane City Council (1997) 94 LGERA 212, the Queensland Court of Appeal considered a statute which provided for the amendment of planning schemes. That statute included a section which said that its objectives were "to provide a code by which a local government or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment": Local Government (Planning and Environment) Act 1990 (Qld), s1.3(a). The statute provided for proposed amendments to be notified to the public by newspaper advertisements and, in certain cases, by the display of notices on the land, and by service on the owner, adjoining owners and others. It provided for interested persons to lodge submissions with respect to any proposed amendment. It was unanimously held that the legislation left no scope for the operation of the common law as to the duty to afford procedural fairness. De Jersey J (as he then was), with whom Fitzgerald P and McPherson JA agreed, said at 215, "The modern form of the legislation reflects an apparent wish in the legislature to define and confine the obligation of the local government within practicable bounds."
The legislation considered in Hannay made it quite clear the Queensland Parliament's intention was to codify the obligations of a local authority as to procedural fairness in relation to amendments to planning schemes. There is no express provision in the Tasmanian legislation to the effect that it is intended to constitute a code in relation to any or all of the subjects that it covers. Mr Ellis SC submitted that it was implicit in the relevant legislation that it was intended to constitute a code, and to leave no room for the operation of the common law in relation to procedural fairness. Mr Spence submitted that the opposite was the case. It is necessary to consider the relevant statutory provisions. As I have said, the LUPA Act, s38 provides for the public exhibition of a draft amendment, and advertising of its public exhibition, and s41B requires those processes to be repeated if a draft amendment is altered to a substantial degree. Section 39 permits any person to make representations to a council during the public exhibition period. Section 40 makes somewhat complicated provisions as to the holding of hearings by the Commission, and I will therefore set it out in full. It reads as follows:
"40 ¾ (1)As soon as practicable after receipt by it of a report under section 39(2), the Commission must consider the draft amendment and the representations, statements and recommendations contained in the report.
The relevant provisions of the LUPA Act suggest to me that the Commission would not ordinarily have any reason to begin considering the merits of a draft amendment until, after the conclusion of the public exhibition period, it receives from the appropriate council its s39(2) report comprising a copy of each representation, a statement of its opinion as to each representation, and its recommendations, if any. Cases may arise in which, at that point, the Commission has cause for concern as to the extent to which the public exhibition and advertising processes have been successful in bringing a particular draft amendment to the attention of those whose interests might be affected by it. In such a situation, there is nothing to prevent the Commission from notifying individual landowners of the existence of a draft amendment and inviting them to make written submissions, or to participate in a s40 hearing relating to one or more representations made by others. There may be cases where the duty to afford procedural fairness requires steps like that to be taken. However there is nothing in the evidence to suggest that in this case the Commission's duty of procedural fairness required it, at any time before the s40 hearing, to notify every owner of land in the area covered by the draft amendment of the initiation of the draft amendment or any matter relevant to it.
Mr Spence relied on R v Town and Country Planning Commissioner; ex parte Scott [1979] Tas SR 154 in support of his submission that the Commission should have notified all landowners individually of the draft amendment at or about the time of the Council's newspaper advertisement. That case concerned an appeal to the Town and Country Planning Commissioner from a council's decision to consent to a change of use in respect of a piece of land. The Commissioner did not afford the owners of adjoining pieces of land an opportunity to be heard. He made a decision allowing the change of use. Eight owners of adjoining land sought certiorari, contending that they had been denied natural justice. However, as Burbury CJ pointed out in that case at 177, it concerned a council's refusal of planning permission, and the legislation then applicable made "no provision for public notification or notice to individual residents or others who may be indirectly injuriously affected if the Commissioner sets aside the refusal and permits the change of use". There were statutory requirements for advertisements and notices in other contexts, but not in relation to appeals from refusals. Here, of course, there were the public exhibition and advertising requirements of the LUPA Act, s38, and the regulation thereunder. I think that case must be distinguished because of the different statutory requirements as to advertising and notification. I therefore do not need to deal with a submission made by Mr Ellis SC to the effect that Burbury CJ expressed heretical views as to the imposition by the courts of natural justice requirements even when Parliament has enacted a comprehensive code intended to replace the requirements of the common law as to the notification of persons whose interests might be affected by a decision.
I think Mr Spence was on stronger ground when he submitted that the delegates should have notified individual landowners after the hearing of the proposed zoning restriction whereby all uses other than "passive recreation" would be designated as prohibited, and even that use would be designated as discretionary in certain areas. Before and during the s40 hearing, there was no suggestion that the draft amendment might be changed to create a zone where there were such extreme restrictions on development. The inclusion of such provisions in the draft amendment was something initiated by the delegates after that hearing. Mr Spence submitted that, in those circumstances, the Commission's duty of procedural fairness required the delegates to give his present clients an opportunity to be heard in relation to those proposed changes to the draft amendment. But Mr Ellis SC submitted that the common law duty of procedural fairness, if it applied, did not require any of the landowners to be given any further notification or any further opportunity to be heard. He relied on the fact that various individuals and organisations made representations to the Council and at the hearing to the effect that the draft amendment as exhibited did not go far enough, and that stricter measures needed to be taken to preserve the bushland in the Mount Nelson area.
As far as I am aware, there is very little case law as to the procedural fairness obligations of a statutory tribunal when a new proposal emerges at or after a public hearing. However a comment in relation to such a situation was made by Woodhouse and Cooke JJ in Ronaki Pty Ltd v Number One Town and Country Planning Appeal Board [1977] 2 NZLR 174 at 182. That case concerned a proposed district scheme. A county council made a decision as to the provisions of the scheme. The Minister of Works and Development appealed to the planning appeal board. Under the applicable regulations, the board had a discretion to direct that copies of the appeal and relevant documents be served upon any person, or to direct that the date of the appeal and the purport thereof be publicly notified. It did not direct public notification, nor did it direct service on Ronaki Pty Ltd, whose interests were affected by the outcome of the appeal. Ronaki Pty Ltd was aggrieved by the board's decision, and sought judicial review of it, successfully at first instance, but ultimately the Court of Appeal upheld the board's decision. However Woodhouse and Cooke JJ said the following at 182:
"… the statutory procedure includes express powers sufficient to achieve justice. They are couched in discretionary terms, however, and the question is whether a person whose interests are affected can contend successfully that an omission to exercise them has resulted in a breach of natural justice which the courts will remedy.
In principle we do not exclude the possibility of such a case. For instance, it might be shown that an issue raised by an appeal that had been lodged ¾ and reg 24 (4) requires the appellant to go into considerable particularity in the documents lodged ¾ could not reasonably have been foreseen when either the original proposed scheme or the summary of objections was published. Or on the hearing of an appeal a radically new and unexpected proposal of prima facie merit may emerge. We do not mean these examples to be exhaustive. What is conceivable in principle is that the facts proved to the court may show that in truth natural justice demanded an exercise of the power under reg 24 (7) to direct public notification or service on particular persons or bodies, or the power under s 42 (3A) to require the council to give public notice."
What their Honours said about "a radically new and unexpected proposal of prima facie merit" that emerges during the hearing of an appeal accords with principle. If a charge against a defendant in the Magistrates Court needs to be amended, and the defendant is not present, procedural fairness requires that notice be given of the application to amend. If a pleading in a civil action needs to be amended, and the defendant is not present at the trial, procedural fairness ordinarily requires that the defendant be afforded an opportunity to oppose the application for leave to amend. Procedural fairness requires a person whose interests might be affected by a decision not just to be given notice of the decision originally sought, but also of any decision significantly more detrimental to him or her that is subsequently sought or proposed. Whether a new proposal before a statutory tribunal is sufficiently radical or sufficiently unexpected for procedural fairness to require anyone to be given notice of it, and an opportunity to respond to it, is a question of degree. But there will certainly be proposals so radical and/or unexpected that any other course would be unfair.
I think the proposal to create a Community Bushland Zone, with its extreme restrictions on development therein, falls within the concept of "a radically new and unexpected proposal of prima facie merit", to use the words of Woodhouse and Cooke JJ. Whilst it might have been foreseeable that significantly tougher restrictions on development in bushland areas would have been urged upon the delegates, I think that, at least in the absence of the re-advertising required by the LUPA Act in relation to an alteration of a draft amendment to a substantial degree, procedural fairness required the delegates, before they made a decision, to inform all owners of land in the proposed Community Bushland Zone of the restrictions that they were contemplating for their land, and to invite written submissions in relation to the proposal. Mr Vandenberg discharged the Commission's duty of procedural fairness in relation to Mr Spence's then clients by writing his letter of 25 July 2001. However the duty of procedural fairness owed to Dr and Mrs Jevtic, and to Mrs Graves, was not similarly discharged. It follows that, in the proceedings instituted by them, orders can be made under the Rules of the Supreme Court, r627, for the quashing of the delegates' decision of 29 November 2001, even if I am wrong in concluding that the delegates erred in law in characterising their changes to the draft amendment as a mere modification.
The compensation entitlement issue
As I have said, it is contended on behalf of the landowners that the challenged amendments, if not quashed, would entitle them to compensation pursuant to the LUPA Act, s66(1)(a). The Council contended that the challenged amendments to the planning scheme could not result in compensation becoming payable under s66(1)(a). That provision reads as follows:
"66 ¾ (1) The owner or occupier of any land may claim compensation in accordance with Part 5 of the Land Acquisition Act 1993 from a planning authority for financial loss suffered as the natural, direct and reasonable consequence of ¾
(a)the land being set aside for a public purpose under a planning scheme or special planning order".
The landowners contend that in substance the challenged amendments provided for all land in the Community Bushland Zone to be "set aside for a public purpose" within the meaning of s66(1)(a). The Council contends that that was not so.
There is a substantial body of case law as to the meaning of the words "public purpose". In Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566, a council had acquired some land adjacent to a shopping centre for use as part of the centre's car park, and in partial satisfaction of a condition of development consent relating to car parking. Subsequently that council purported to classify that land as "operational land" as distinct from "community land". A council did not have the power so to classify land which was "subject to a trust for a public purpose" within the meaning of a clause in a schedule to the Local Government Act 1993 (NSW). The High Court held that the land was subject to such a trust. At 586 – 587, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said the following:
"The phrase 'for a public purpose' as it appears in such a statute is 'a wide phrase' and should not be 'read narrowly' Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 209."
In Clunies-Ross, the plaintiff owned a house on Home Island in the Territory of Cocos (Keeling) Islands. The Commonwealth sought to acquire the land upon which his house was erected pursuant to the LandsAcquisition Act 1955 (Cth) for the purpose of bringing about the exclusion of him and his family from that Territory. In the High Court, the majority held, at 202, that the power conferred by the relevant Act compulsorily to acquire land for a public purpose was "limited to a power to acquire land for some purpose related to a need for a proposed use (be it active or passive) or application of the land to be acquired." However, in the passage I have cited from Bathurst City Councilv PWC Properties Pty Ltd, their Honours were referring with approval to a passage in the dissenting judgment of Murphy J in Clunies-Ross at 209, where his Honour said this:
"It runs against generally accepted principles of interpretation to read narrowly a wide phrase such as "for a public purpose". Acquisition of land round an airport or a defence installation, not to use, but so that no one may use it, is for a public purpose. Acquisition of a derelict site, not to use it, but to remove an eyesore or to prevent danger, is for a public purpose. Acquisition of a wilderness area, specifically so no one should use and therefore despoil it, is for a public purpose."
In State Government Insurance Office v City of Perth (1987) 71 LGRA 123, the appellant, a statutory authority, relying on a statutory exemption, contended that it was not liable to pay council rates because its land was property of the Crown that was "being used for a public purpose". Franklyn J held that the appellant had failed to establish its eligibility for the exemption, on the basis that much of its business was carried on for purposes other than public purposes, eg, purely competitive commercial insurance for profit, and agency business for interstate insurers. However his Honour said this at 135:
"For a purpose to be a 'public purpose' within the meaning of the section in my view it must be a purpose which relates or pertains to the people of the State or of some particular region or locality as a whole and so relate or pertain in the sense of the provision of some service, utility or benefit to the public which would not be otherwise provided, and which is not provided with the primary purpose of producing profit, although profitability might well flow from charges or fees imposed or moneys collected or earned in respect of such provision. Such a definition accords with activities which are traditionally the province of government and with the meaning of the word 'public'."
Of course the challenged amendments did not go so far as to designate the land in the Community Bushland Zone as public parkland, or anything of that nature. Rather, they provided for private rights to be restricted. All developments and uses other than for "passive recreation" were designated as prohibited. The purpose of restricting private rights to such an extent is evident from the final paragraph of cl 5.26 of the planning scheme, which is the statement of the zone objective for the Community Bushland Zone:
"It is intended that the land retained within the Community Bushland Zone will be publicly owned or leased and managed sustainably to further the zone objective."
In essence Mr Spence argued that the planning objectives underlying the creation of the Community Bushland Zone constituted public purposes, and that the restriction of private rights in that zone with a view to all the land in it ultimately being publicly owned or leased, amounted to its setting aside for such public purposes. In his written outline of submissions at par11.4.2, he said:
"… the public purpose identified by the Commission is that of the visual attributes of the area and the connection of walking trails and the like. The fact that whilst the land remains in private ownership the public cannot access the land does not, we submit, mean that there is not a public purpose. The essence of the legislation is to identify the public purpose and ensure that the land is 'set aside'. The legislation looks to the future and does not imply an immediate implementation of the public purpose."
The LUPA Act does not provide a statutory mechanism whereby land can be "set aside for a public purpose". By virtue of s20(2)(c), a planning scheme may "designate land as being reserved for public purposes". Under s20(2)(b), a planning scheme may "regulate or prohibit the use or development of any land". Under s20(3), subject to certain exceptions, planning schemes cannot operate to prevent the continued use of land or buildings or works for purposes which were previously lawful. In that context, I think it is clear that the term "set aside" is not a precise term, and that it includes preliminary steps antecedent to the dedication of land for use for a public purpose. I think the term is used in s66 in a way that would include the taking of some step in relation to private land intended to be acquired or leased by a council, the Crown, or some public authority for some public purpose, such as the provision of a park or a bushland reserve.
However I think the words "public purpose" must refer to the intended future use of the land, rather than the planning considerations that motivated the setting aside. Whenever a zoning authority restricts private rights in respect of land in a zone, it does so for public purposes, in the sense that it does so because of policy considerations that operate for the public benefit. I do not think the words "public purpose" are used in that sense in s66(1)(a). Zoning statutes that provide for compensation to be payable as a result of "injurious affection" of land by zoning restrictions are very common, but the Tasmanian Parliament has chosen to limit eligibility for compensation to situations where losses are sustained as a result of the permissible use, or intended future use, of land being some sort of public use.
Anderson J took a similar view in relation to the equivalent Victorian legislation in Van der Meyden v Melbourne and Metropolitan Board of Works (1979) 45 LGRA 233. The appellants in that case owned land which, pursuant to a planning scheme, was included in a conservation zone. The zoning severely restricted the use of their land. The applicable statute provided that no compensation was payable in respect of a planning scheme which restricted the use of the land for specified purposes except where (inter alia) the land was "reserved or deemed to be reserved for a public purpose". At 240, Anderson J said the following:
"It is not to be assumed that a responsible authority in placing restrictions or prohibitions on the use of land in a particular zone is acting capriciously; any restriction or prohibition is evidently imposed for the public benefit and for the enhancement of the amenity of the locality and if the view of the Tribunal were correct, namely, that the limitation on the use of land in the conservation zone was for the benefit of the public, and that therefore land therein was reserved or required for a public purpose, then the same argument would apply to all restrictions or prohibitions on use, and all land within all zones would be so reserved or required for a public purpose. This obviously cannot be the case. It is evident, I think, where land is reserved or required for a public purpose it is more likely that it is so reserved or required for use in the sense of occupation and use, and that it is so reserved or required for a specific public purpose or purposes."
Interpreting "public purpose" as referring to the relevant land's intended future use, rather than the reasons for imposing zoning restrictions, is, I think, consistent with the majority view in Clunies-Ross. In that case at 202 Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:
"… the power compulsorily to acquire land for a public purpose which is conferred by the Act is limited to a power to acquire land for some purpose related to a need for or proposed use (be it active or passive) or application of the land to be acquired. It does not extend to the acquisition of land merely for the purpose of depriving the owner of it and thereby achieving some purpose in respect of which the Parliament has power to make laws or, in relation to land in a Territory, a purpose in relation to that Territory."
In my view it is not possible to identify from the challenged amendments any one or more specific intended future public uses for the Community Bushland Zone. Further, I do not think it can be said that there has been a setting aside of the land comprising that zone. The challenged amendments provide for severe restrictions on private rights in that zone, but go no further. The discretion to permit development for "passive recreation" does not preclude development for leisure purposes such as private pleasure gardens, picnic grounds, playgrounds, sculpture gardens, or tourist bushwalking experiences. It follows in my view that the challenged amendments did not provide for the land in the Community Bushland Zone to be "set aside" within the meaning of s66(1)(a), and that, if not quashed, they could not give rise to compensation entitlements pursuant to s66.
The compensation error issues
The question of compensation arose during the hearing. The delegates wrote the following in their report in relation to the compensation issue:
"Several of the representors urged Council to acquire land in the Mt Nelson area, such as at Porter's Hill, for conservation and recreational purposes. Mr Holmes, for Council, tabled a plan showing priorities for acquisition. He gave oral evidence that the estimated cost of acquiring land for those purposes in the Mt Nelson area was in the order of 2.5 million dollars. He affirmed that Council wished to negotiate with certain landowners for the purchase of large parcels of bushland to add to existing reserves.
Some representors were, apparently, not satisfied that they would be adequately compensated for their loss of development opportunities if Council offered to purchase their properties. They were concerned that if the draft amendment was approved their negotiating position would be weakened because the maximum hypothetical lot yield under the amended provisions of the planning scheme was less than could be achieved under the current zoning. However, it must be remembered that the acquisition of land must, as a basic tenet, be on 'just terms'.
Mr Holmes submitted that, in the event of a dispute about price, the owner would have recourse to s66 of LUPAA to obtain compensation for the acquisition of land 'set aside for a public purpose under a planning scheme.' That assertion was countered by Mr McNamara's evidence. In his submission, Mr McNamara raised two general issues. Firstly, whether landowners who were adversely affected by the amendment would be able to rely at all on s66 of LUPAA. Secondly, that the proposed change to the Dwelling Unit Factor would reduce lot yield and the profitability of subdivision.
He argued that, 'planning law should not be used as a surrogate method for acquisition without the payment of adequate compensation.'
As noted before, Council's recommendation to the Commission, contained in its s39(2) report was, 'That no modifications be made to the draft amendments arising out of the issue of diminished property values or foregone profit of land development.'
Mr McNamara contended that, 'This recommendation revolves around an expectation that any land zoned Bushland Conservation and Recreation Zone, will fall within the parameters of Section 66 of LUPAA with compensation being able to be claimed for the injurious affection to the relevant properties.' Section 66 had not been tested in the Courts, he said. 'A new interpretation is now required as to how land becomes "public purpose". Land within the Bushland Conservation and Recreation Zone, that is privately owned and possibly separately fenced, is such land considered "public purpose"?'
His evidence continued, 'Clearly, land designated Landscape & Skyline Conservation zone is not "being set aside for a public purpose". The injurious affection resulting from such zoning is therefore not eligible for compensation.'
Also, 'As regards the Bushland Conservation & Recreation Zone, in the absence of certainty for compensation, the financial implications of the proposed amendments need to be considered and hence, the recommendation from Council is inappropriate in this regard'."
The LUPA Act, s32(1)(a) requires that an amendment of a planning scheme "must seek to further the objectives set out in Schedule 1". Part 1 of that Schedule lists the objectives of the resource management and planning system of Tasmania. One of those objectives is "to provide for the fair, orderly and sustainable use and development of air, land and water": Sch1, Pt1, cl 1(b). The delegates considered that they faced a dilemma which they described in their report as "this dilemma of competing values ¾on the one hand the public values of nature conservation, landscape and public safety, and on the other the private economic value of the developable land". They sought to resolve that dilemma by requiring the creation of a zone in which all developments and uses other than "passive recreation" would be designated as prohibited, believing that the owners of the affected land would probably be entitled to compensation pursuant to s66. They saw this solution as according with the objective of fairness provided for in the LUPA Act, Sch1, Pt1, cl 1(b).
When reporting as to the merits of the provisions of the draft amendment as exhibited in relation to the Bushland Conservation and Recreation Zone then proposed, they adverted to s66, and said the following:
"Whether, in any particular case, compensation would be payable is a matter for the courts to determine. We can make no definitive statement about the merit of any anticipated claims for compensation under s66 of the Land Use Planning and Approvals Act 1993. That is not a relevant matter for consideration by us, the delegates. However, we note that the Council indicated that it accepts that compensation would be payable for any land rezoned as BC&R.
…
Although it seems unlikely, given its stated intention to acquire land in the BC&R zone, that Council would approve inappropriate uses at Mt Nelson, the fact that the potential exists is of concern to the delegates. Moreover, there is a reasonable apprehension by the owners that they might be disqualified from seeking compensation under s66 of LUPAA, because the BC&R zone is not unequivocally 'set aside for a public purpose'. Other private, commercial uses could be approved at Council's discretion.
Since there is not yet any Tasmanian case law to guide us on the interpretation of s66, we prefer to err on the side of caution and find there is a real risk that the owners affected by the proposed BC&R zone will suffer an uncompensable loss of value from amendment 6/99 as certified.
If that were the outcome we consider it would not be a fair result. The costs and benefits of the amendment would seem to fall inequitably upon the many landowners in the Mt Nelson area. This would be contrary to objective 1(b) of Schedule 1 of LUPAA that calls for the 'fair, orderly and sustainable use and development of air land and water'."
When reporting as to their chosen solution to their dilemma, they said the following:
"There may be an alternative that provides both greater certainty for owners whilst allowing a more flexible consideration of development opportunities. In preference to awaiting a test of s66 of LUPAA in court, the following approach is proposed.
The solution, we advocate, is to create a new pair of 'bushland conservation' zones embracing both the proposed Bushland Conservation and Recreation Zone and the Landscape and Skyline Conservation Zone together with parts of the Residential 2 and Special Use 2 zones in the Mt Nelson area. Each of the bushland conservation zones should have its own objective, reflecting a slightly different management approach. The suggested zones are referred to as the Community Bushland Zone and the Modified Bushland Zone.
…
In the Community Bushland Zone, only uses or Developments for the purpose of public recreation and public management of natural values would be permitted. This should remove the uncertainty about whether the land is being set aside for a public purpose. Table A1 in Schedule A of the scheme would show that all use groups were prohibited, except use group XVII (development for passive recreation), which would be permitted (P). The Objective for the Community Bushland zone would be similar to that proposed for the BC&R zone in the amendment and reinforces an intention for public ownership."
Mr Spence submitted that the delegates had taken the view that the affected landowners would be entitled to claim compensation; that they might not have made the same decision if they had taken the opposite view; and that, if they erred in law as to the entitlement of the affected landowners to compensation, their error was sufficient to vitiate their decision. Mr Ellis SC submitted that the delegates did not purport to determine that compensation would be payable under s66; that they properly acknowledged that only a court could authoritatively conclude whether compensation would be payable under s66; and that, if the wording of the amendments was not such as to give rise to an entitlement to compensation, the delegates had made no error, and there had been no procedural unfairness.
In my view the delegates reached a conclusion that the creation of a zone in which all uses or developments other than "passive recreation" would be designated as prohibited would give rise to compensation rights under s66. It is unfortunate that they did not express this conclusion in clearer language. What they said, in the passage I have quoted above, was, "This should remove the uncertainty about whether the land is being set aside for a public purpose." I interpret that sentence as meaning that, in their view, the zoning restrictions that they were discussing would effect the setting aside of the land in the zone for a public purpose, within the meaning of s66. I take the use of the word "should", rather than "will", as involving an acknowledgement that a court might take the opposite view.
It is true that the delegates said that compensation was a matter for the courts to determine, that they could make no definitive statement about the merit of any anticipated claims under s66, and, "That is not a relevant matter for consideration by us, the delegates." One could read that passage as inconsistent with their conclusion that the creation of the Community Bushland Zone, where only uses or developments for the purpose of public recreation and public management of natural values would be permitted, "should remove the uncertainty about whether the land is being set aside for a public purpose". However I am reluctant to interpret the delegates' report as, on the one hand, saying that compensation is not a relevant matter for them, and on the other hand saying that they have a duty to pursue a statutory objective of fairness, and that their proposal should remove any uncertainty as to compensation. I think the preferable course is to treat the words "That is not a relevant matter for consideration by us" not as meaning that the availability of compensation was irrelevant despite the fairness objective, but as meaning that it would be open to a court to take a different view from theirs as to the availability of compensation.
The instrument by which the delegates purported to require the Council to modify the draft amendment pursuant to s41(a) is their report dated 29 November 2001. That report incorporates their reasons for that decision, including their erroneous conclusion as to the availability of compensation under s66. I think it follows that there has been an error of law on the face of the record in that respect. See Aronson and Dyer, Judicial Review of Administrative Action, 2 ed at 185.
As I said in par5(v) above, it was contended by the landowners in general terms that the delegates of the Commission misdirected themselves as to the entitlement of the landowners to compensation pursuant to the LUPA Act, s66. In each of the eight proceedings before me, such a ground of review was pleaded separately from the ground that, if the amendments did not provide for the setting aside of land for a public purpose within the meaning of s66, the delegates erred in law as to the effect of s66. The only submission made by Mr Spence in support of the contention in general terms that the delegates misdirected themselves as to the entitlement of landowners to compensation under s66 concerns the delegates' comment that "it must be remembered that the acquisition of land must, as a basic tenet, be on 'just terms'." Mr Spence submitted that that proposition is correct only in relation to the acquisition of land by the Commonwealth. He is right about that. The comment made by the delegates was so wide as to be inaccurate. But it was a comment that led nowhere. An examination of their reasoning reveals that their decision was not based in any way upon the proposition that the acquisition of land must always be on just terms. The making of that comment can have no bearing on the outcome of these proceedings.
Discretionary factors
If the delegates' failure to afford Dr and Mrs Jevtic and Mrs Graves an opportunity to comment on the proposal concerning a Community Bushland Zone had been their only error, it might have been appropriate to refuse to quash the delegates' decision. Those landowners own far less than one per cent of the land affected by the amendment. As the delegates' decision was made before the commencement of the Judicial Review Act, there is no discretion to set aside their decision in relation to specific properties, and leave the amendment in force in relation to the rest of the affected area. Their decision must be wholly quashed, or not quashed at all. If their decision is wholly quashed, the amendment must be regarded as void ab initio, and that result might be regarded as out of all proportion to such a single error. Another factor weighing against the quashing of the delegates' decision is that both Dr Jevtic and Mrs Graves were aware of the draft amendment, but chose not to participate in the hearing, and not to keep themselves informed of developments at the hearing.
However different considerations arise as a result of my conclusions that the delegates erred in characterising their changes to the draft amendment as a modification, rather than as an alteration to a substantial degree, as well as erring in relation to the availability of compensation under s66. If it had been appreciated that the delegates' changes amounted to an alteration of the draft amendment to a substantial degree, the public exhibition, advertising and hearing processes would have been repeated, and the delegates might well have come to a very different decision. The delegates' error as to compensation is of significance in relation to the owners of all land in the area of the Community Bushland Zone. Because of the general significance of those errors, I think that the discretionary considerations relating to the extent of the holdings of the landowners who have brought these proceedings, and in relation to the stances they took before the Commission and its delegates, are of minor significance and do not warrant the refusal of relief.
Conclusion
Because of (i) the delegates' wrongful characterisation of their changes to the draft amendment as a modification, rather than an alteration to a substantial degree, (ii) their denial of procedural fairness to Dr and Mrs Jevtic and Mrs Graves, and (iii) their error of law as to the availability of compensation under s66, their decision to require the Council to modify the draft amendment pursuant to s41(a) must be quashed. It follows that the decision of the Commission to give its approval to the draft amendment pursuant to s41(1) must be set aside as from the date of that decision. I will hear counsel as to the wording of the appropriate orders, including consequential orders.
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