R v Resource Planning and Development Commission; ex parte Stevens

[1999] TASSC 60

[1999] TASSC 60

CITATION:    R v Resource Planning and Development Commission; ex parte Stevens [1999] TASSC 60

PARTIES:  R
  v
  RESOURCE PLANNING AND

DEVELOPMENT COMMISSION,
STEVENS, Graeme Edward; ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M316/1998
DELIVERED ON:  26 May 1999
DELIVERED AT:  Hobart
HEARING DATES:  11 May 1999
JUDGMENT OF:  Underwood J

CATCHWORDS:

Local Government - Town planning - General matters - Planning schemes and instruments and like matters - Tasmania - Draft amendment to Planning Scheme - Whether a direction by the Land Use Planning and Development Commission is an alteration to a substantial degree or whether the direction transforms the draft amendment into a different entity - Meaning of "alter to a substantial degree" in the Land Use Planning and Approvals Act 1993, s41.

Land Use Planning and Approvals Act1993, s41.

R v The Resource Planning and Development Commission; ex parte Aquatas Pty Ltd 82/1998; R v Land Use Planning Review Panel; ex parte M F Cas Pty Ltd 131/1998; Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442, followed.
Aust Dig Local Government [161]

REPRESENTATION:

Counsel:
             Prosecutor:  A R Spence
             Respondent:  D J Bugg QC and C E Kelly
Solicitors:
             Prosecutor:  Page Seager
             Respondent:  Director of Public Prosecutions

Judgment Number:  [1999] TASSC 60
Number of Paragraphs:  45

Serial No 60/1999
File No M 316/1998

THE QUEEN v THE RESOURCE PLANNING AND DEVELOPMENT COMMISSION; ex parte GRAEME EDWARD STEVENS

REASONS FOR JUDGMENT  UNDERWOOD J

26 May 1999

The issue

1. Should a writ of certiorari issue to quash a decision of the Resource Planning and Development Commission by which it required the Hobart City Council to alter to a substantial degree, draft amendment N to the City of Hobart Planning Scheme 1982?

The background

1. The prosecutor, Mr Graeme Stevens, owns several hectares of land at West Hobart.  Seven hectares of his land is known as 162A Forest Road.  This land is comprised in the whole of one title for five acres, and in the majority of another title for 2.829 hectares.  Mr Stevens wants to subdivide 162A Forest Road into residential allotments.  The land is zoned Rural B, Precinct 41 in the City of Hobart Planning Scheme 1982 ("the Scheme").  While the Scheme provides that the development of the land for a house, ancillary flat and home occupation is an approved use, the minimum size of any allotment in Precinct 41 is prescribed to be 40,000 square metres.  The prosecutor wants to subdivide his land into lots smaller than 40,000 square metres. 

1. The Land Use Planning and Approvals Act 1993 ("the Act"), s33 provides that "a person may request a planning authority to amend a planning scheme administered by it". In accordance with this provision, the prosecutor requested the Hobart City Council to rezone 162A Forest Road to Residential 2, Precinct 24. In this precinct, development of land for the purpose of a house, ancillary flat and home occupation is also a permitted use, but the minimum lot area is only 550 square metres.

1. The prosecutor engaged surveyors who drew up a plan of proposed subdivision.  This plan contains approximately 80 lots.  The majority of these lots are within the seven hectares that the prosecutor wants rezoned and the remainder are on adjoining land, also owned by the prosecutor, which is already zoned Residential 2, Precinct 24.

1. In November 1995, the Hobart City Council agreed to initiate an amendment known as "draft amendment N", as it was empowered to do by the Act, s34(1). As is required by the Act, s35, the Council submitted the amendment to the "Panel", the predecessor of the Land Use Planning and Development Commission. There followed some discussions with the prosecutor, the upshot of which was that the proposed amendment was altered to exclude therefrom most of an area marked "C" on the surveyor's plan of subdivision. As I understand it, this area adjoins an area proposed by the subdivision plan to be dedicated as public open space.

1. As provided by the Act, the Panel certified draft amendment N as suitable for public exhibition and it was so exhibited. There were 64 representations. The Council reported at the end of the exhibition period as it was required to do by the Act, s39(2). The report is long and detailed. In result, the Council affirmed its decision to amend the Scheme and requested the Commission to give final approval to draft amendment N, with the exception that:

"a)  The density standards applicable to this site should allow for a maximum of 60 lots with a minimum average lot size of 750m², a basic and maximum plot ratio of 0.3, and the number of dwelling units permissible upon any lot restricted to a single dwelling.

and

b)   Council agrees to require a landscape development plan that defines the critical landscape values of the site and measures to preserve and enhance them.  The plans are to be undertaken to the satisfaction of the Director Development Services and be submitted as a component of the subdivision plan for the site."

1. By its delegate the Commission conducted a hearing as required by the Act, s40(2). The decision of the Commission, made on 9 April 1997, was to reject draft amendment N. However, that decision did not finally determine the matter. It was removed into this Court upon an order nisi for a writ of certiorari.  On 10 October 1997, Wright J made the order nisi absolute and quashed the decision of the Panel made on 9 April 1997 upon the grounds that the prosecutor had been denied natural justice. A further order was made directing a rehearing in accordance with law, pursuant to the provisions of the Act, s40(2).

1. The rehearing took place on 23 and 30 June 1998.  The delegates handed down the Commission's decision in July 1998.  It was accompanied by a very detailed, carefully crafted and comprehensive set of reasons which appear to have raised and dealt with all the issues that were ventilated with respect to draft amendment N. 

The decision

"In general terms the rezoning of land at 162A Forest Road from Rural B to Residential 2 is supported. However it is premature to give approval to the amendment as put forward by the Hobart City Council.

In accordance with Section 41 and Section 41A of the Land Use Planning and Approvals Act 1993 the Commission directs the Hobart City Council to alter, to a substantial degree, the N Amendment to the Hobart City Planning Scheme 1982.  In carrying out the alteration the Council shall:

1    Amend the boundaries of the proposed Residential 2 zone so as to delete from any Residential zone, the areas marked 'A', 'B', 'C' and 'D' on Peacock, Darcey & Anderson's plan reference no T385D-2.

2    Formulate revised boundaries for the Residential 2 zone, the Residential 1 zone, the Recreation zone and the Rural B zone in the vicinity of the subject land, which take account of:

·slope, vegetation and drainage characteristics;

·the landscape values of the locality;

·measures and facilities required to minimise bushfire hazards;

·the geotechnical limitations of the land; and

·opportunities to create recreational and open space linkages in the locality and in particular between South Hobart and West Hobart.

3    Designate a new Precinct for the subject land and its environs, including a Statement of Desired Future Character, use controls and development controls.  The planning controls for the Precinct, (without restricting the scope of its provisions) should make reference to matters such as - permitted and discretionary uses, density, lot sizes, site coverage, building height, building setbacks (including circumstances for zero setbacks), solar access, stormwater management, traffic management, management of open space and natural values, (including any proposals for acquisition) and landscaping.  Council may wish to include this task within the work of formulating the South Hobart Local Area Plan.  Alternatively the creation of use and development controls for land at Forest Road could serve as a pilot project which may be a useful precursor to the South Hobart Local Area Plan."

Proceedings in this Court

1. Once again, the prosecutor was successful in obtaining an order nisi requiring the Commission to bring its decision of July 1998 into this Court and show cause why an order should not be made quashing it.  The order nisi was issued upon the following grounds:

"(A)The Resource Planning and Development Commission erred and misunderstood its function in determining that the amendments it required to draft amendment N constituted alterations to a substantial degree when the scope of the amendments constituted in effect a rejection of draft amendment N.

(B)The Resource Planning and Development Commission failed to determine in accordance with sections 40, 41, 41A of the Land Use Planning and Approvals Act the application to incorporate draft amendment N into the City of Hobart Planning Scheme.

(C)The Resource Planning and Development Commission, in determining that amendments to a substantial degree were required to draft amendment N, failed to specify the manner in which the draft amendment is to be altered as required by section 41A(1)(b) of the Land Use Planning and Approvals Act.

(D)The Resource Planning and Development Commission's decision in so far as it required the Hobart City Council to 'Designate a new Precinct for the subject land and its environs' was ultra vires."

Ground A

1. Shortly stated, ground A alleges that the decision of the Commission was more than an alteration to a substantial degree and amounted to a rejection of the draft amendment.  Thus, the Commission had no power to require the Council to make the specified alteration. 

1. After consideration of the Council's report, which consideration included a hearing in relation to each representation, the Commission:

·    may have required the Council to:

(a)   modify the draft amendment; or

(b)   alter it to a substantial degree; or

·     may have rejected it (the Act, 41); alternatively

·    if satisfied that the draft amendment is in order, must have approved it (s42(1)).

1. These powers are consistent with the scheme of the Act which places the primary responsibility for the preparation of amendments to planning schemes on the local authority (s34(1)), although the Commission may direct a local authority to initiate an amendment to a planning scheme, but only with the approval of the Minister.

1. For the prosecutor, Mr Spence submitted that the Commission's decision in this case encompassed land that is outside the boundaries of the proposed amendment and was otherwise so far reaching that it amounted, in effect, to the Commission purporting to initiate a whole new amendment.  This, of course, is outside the powers of the Commission.  Mr Spence submitted that the decision went far beyond one that could properly be categorised as an alteration to a substantial degree.

1. Electronic search against all the Australian legislation stored in Australasian Legal Information Institute database discloses no other statutory use of the expression "alter to a substantial degree". It seems that the expression is unique to the Act, s41, at least in Australia. Counsel did not contend otherwise.

1. In R v The Resource Planning and Development Commission; ex parte Aquatas Pty Ltd 82/1998, the Chief Justice was concerned to determine (inter alia) whether a decision of the Commission constituted a modification or an alteration to a substantial degree within the meaning of the Act, s41. I respectfully express agreement with his Honour's observations at 5:

"It is not disputed that it is for the Commission to decide into what category the changes to Q2 and Q3 fell.  [Either modifications or alterations to a substantial degree.]  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."

1. Further, I would cite as apposite to the matter at hand, as did the Chief Justice in Aquatas, the passage in the judgment of Anderson J in Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442 at 446 - 447 in which his Honour said:

"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 acknowledgement 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."

1. Anderson J went on to cite a passage from the judgment of Megarry J in Legg v Inner London Education Authority [1972] 1 WLR 1245 at 1255, 1256 which was concerned with the question of whether a change constituted a "modification".

1. In R v Land Use Planning Review Panel; ex parte M F Cas Pty Ltd 131/1998, Wright J considered (inter alia) whether a decision of the Panel was a modification or an alteration to a substantial degree.  His Honour referred with approval to the Aquatas decision and cited therefrom passages in the learned Chief Justice's decision some of which I have set out above.  Wright J then said at 10:

"Whilst I respectfully agree with the approach of Cox CJ in the Aquatas case, and, in particular, with his opinion that the views, if any, expressed by the Panel as to whether a proposal is a mere "modification" or an "alteration to a substantial degree" will be of considerable weight, I think that Mr Armstrong is correct when he says that something which has been altered must still be identifiable as the original entity, otherwise it can only be said that it has been transformed or metamorphosed into something new."

1. In this context, both the Chief Justice and Wright J referred with approval to Addicoat v Fox(No 2) [1979] VR 347 in which case Brooking J said at 353 with respect to whether what had been granted was a permit with modification or an entirely different permit:

"This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without bringing it about that the permit granted is a different as opposed to a modified permit."

1. "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 ...'."

1. 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.

1. 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.  In its reasons for decision, the Commission carefully addressed the nature of its requirements.  Reference was made to the Aquatas judgment.  The Commission concluded that its requirements went beyond modification of the draft amendment and amounted to alteration to a substantial degree.

1. The Commission's reasons for decision refer to the representations and classify the issues raised by them.  The reasons then set out "a structure for considering the evidence and reaching conclusions about the merits of the draft amendment".  I set out the Commission's structure:

"In terms of environmental sustainability the issues to be considered can be categorised under the headings of:

·water quality;

·flood hazard;

·soil stability hazard;

·bush fire hazard; and

·effects on biodiversity.

Under the heading of economic sustainability we consider:

·metropolitan context;

·land use alternatives;

·demand for and supply of housing; and

·infrastructure, including roads and traffic.

While social considerations are described in terms of:

·cultural significance;

·landscape;

·recreational opportunities, and

·community costs and benefits."

1. This structure and classification provided an orderly means of considering the matters that required consideration.  Under each head, the reasons refer to the evidence and analyse it.  Reference is also made to the statutory requirement that the Commission have regard to State policies made under the State Policies and Projects Act 1993, s3. Where appropriate, the reasons for decision pay regard to such policies. In summary form, the Commission reached the following conclusions.

Water Quality

With attention to appropriate codes of practice, the Commission considered that the proposed subdivision would be able to demonstrate compliance with the State policy on water quality management.

Flood Hazard

On an assumption of a conventional subdivision of 60 lots and the development of 60 individual residential properties, the Commission acknowledged that storm water volumes would be increased.  In the discussion of the evidence on this point, the Commission's reasons first drew attention to a matter that clearly was significant to the Commission.  By virtue of the Scheme and various legislative provisions, a conventional subdivision of 60 allotments which satisfied the density schedule in the Scheme is a discretionary use and an approval would not require any prior public notification or consultation.  Further, provided any building or structure on an allotment was sited and designed in compliance with the density schedule and the height schedule, the development would be exempt from planning control.  If the Commission simply approved the draft amendment, a large area of land would be covered in residential buildings without any controls other than the general ones referred to and without any input from the adjoining owners.

Soil Stability

Because some of the land was extremely steep, the Commission was of the view that areas of the proposed subdivision which were "medium-high risk areas" from the point of view of soil stability, should be excluded from the proposed amendment.

Bush Fire Hazard

The Commission reached the conclusion that it was "entirely possible for a comprehensive site planning exercise to address the issues of fire safety so as to satisfy the concerns of Tasmania Fire Service."

Biodiversity

The Commission was of the view that there was no evidence to suggest that the subject land contained habitats or species that required protection.

Metropolitan Context

The Commission's opinion was that 162A Forest Road possessed location advantages over other sites.

Land Use Alternatives

The Commission was of the opinion that "residential development now appears to be the only commercial alternative land use available". 

Demand for and Supply of Land for Housing

The Commissioner reached the conclusion that "the proposed rezoning would not lead to an over supply of lots in the Hobart City residential land market."

Infrastructure

The Commission's reasons for decision subdivide this topic under three heads, Water Supply, Sewerage and Storm Water.  The Commission's reasons refer to the expert evidence given with respect to each of these matters and express satisfaction that all of these issues could be satisfactorily resolved if the proposed rezoning proceeded.

Roads

Under this head, the Commission's reasons for decision discuss traffic that is likely to be generated if the proposed subdivision proceeds and conclude that provided the Council take steps to slow traffic in some adjoining streets, Forest Road could be upgraded to accommodate additional traffic generated by residential development of the subject land.  Reference was made to "traffic calming measures", being speed humps often found in suburban streets!

Cultural Significance

The Commission's conclusion was that there was nothing under this head so compelling as to require rejection of the rezoning proposal.

Landscape

Under this heading, the Commission returned to the matter of significance that its reasons addressed earlier, namely, the lack of control over the siting of buildings on the subdivision, provided those buildings complied with the density and height requirements of the Scheme.  The Commission said:

"The weight of professional opinion does not appear opposed to residential development of the subject land provided that appropriate design controls are implemented.  This, we feel, is the crux of the issue about which the residents of South Hobart wish to be reassured.  People can find changes to their familiar landscape unsettling and may need time to adapt.  This process of change and adaptation will be assisted if the Council can provide clear guidelines for development so that the public can anticipate the scope of future landscape changes."

Recreational Opportunities

The Commission concluded, "with sympathetic design it seems to us quite possible to achieve the above aims as part of the development of the subject land".

Community Costs and Benefits

Under this head, the reasons set out a detailed table of the positive and negative effects of rezoning 162A Forest Road from Rural B to Residential 2.  The Commission concluded therefrom "that the above benefits of allowing the uses of the subject land to change from rural to urban outweigh the costs of that change".  Under this head, the Commission's reasons return to the issue that obviously concerned the Commission throughout the hearing:

"The precise types of appropriate uses require further consideration, however it seems to us that by merely appending the subject land to the Residential 2 Precinct 24 category, the draft amendment has not adequately addressed the issue of use.  As submitted in the documentation prepared by RJ Graham, the Residential 2 zone allows for a range of non-residential uses at Council's discretion.  For example a hospital, consulting rooms, educational establishment or welfare institution, although admittedly unlikely to eventuate, would be inappropriate at this location.  On the other hand, prohibited uses such as a flat, a holiday unit or a multiple dwelling, perhaps even a restaurant, could prove to be quite appropriate, if sympathetically designed.

A further question that remains in our minds is whether the precinct and density controls proposed by Council are adequate to achieve a form of development and use which best responds to the various constraints and opportunities of the site."  [Emphasis added.]

1. Having analysed the evidence and reached conclusions upon discrete issues, the reasons proceed to discuss the proposed draft amendment in general.  In this section, the Commission expressed concern about the following matters:

·    If the rezoning is approved, a plan of subdivision would be approved without public input provided it complied with the subdivisional requirements of the scheme.

·    If the rezoning is approved, the siting and appearance of houses on the subdivision will not be the subject of any control, other than those imposed by the height and density schedules in the Scheme.

·    The draft amendment is silent on the question of how control could be exercised over "site sensitive" matters such as height, materials, bulk form and so on, which the Commission concluded were of importance to the local community.

1. The Commission expressed the view, however, that its concerns in this last respect were not such as would warrant outright rejection of the amendment, nonetheless it would be desirable if the local community were allowed to participate more fully in this decision-making process that would affect their immediate surroundings.  In this context the reasons state:

"In a broad view of urban development, potential problems in guiding the form of development result from disjointed processes of approval.  Zoning, subdivision, service construction, land sale, building and eventual land use control are too often seen as independent exercises.  Various jurisdictions play a role and each step is administered by different professional disciplines.  Comprehensive site planning can be achieved by a committed development organisation but the chances of it occurring through the uncoordinated decisions and actions of 60 individual owners seem remote.  If there is a site that calls for an integrated multi-disciplinary approach it is surely this one."

1. Further, the Commission drew attention to the fact that if the rezoning proceeds with the proposed limit of 60 lots, there will be no guidance about the size and orientation of the lots, the siting of buildings or the layout of streets and pedestrian linkages.  Also, there will be no guidance about the height of buildings, the implications of over-shadowing and the like.

1. The Commission's reasons draw attention to the desirability of all the land owned by the prosecutor, including that already zoned Residential 2, being developed in an integrated fashion, thus providing one consistent set of use and development controls over 162A Forest Road and the adjoining land.

1. The foregoing is but a rough summary of the detailed consideration that the Commission gave this matter, but it suffices to expose the central concerns that arose in the mind of the Commission.  These concerns are reflected in the decision itself.

1. Firstly, the Commission required the Council to delete from the proposed amendment the land marked "reserved for public open space", the land affected by soil instability and, I think, another small piece of land.  Standing alone, this requirement would constitute no more than a modification of the proposed amendment.  Mr Spence did not contend to the contrary.

1. Secondly, the Commission required the Council to formulate revised boundaries of other land in the vicinity of 162A Forest Road to take account of the matters set out in the second direction.  Either alone, or in conjunction with the first requirement, it cannot be said that this direction effects such a major alteration that it transforms the proposed amendment into something quite different.

1. Lastly, the Commission required the Council to design a new precinct for the subject land, a precinct which would impose controls over the various matters with respect to which the Commission expressed concern throughout its reasons for decision.  In the imposition of this requirement, the Commission accepted that the land was suitable for residential development and should be rezoned from Rural B to Residential 2, but declined to simply approve the draft amendment because it considered that the planning controls in Precinct 24 were insufficient to meet adequately the needs of the site.  The Commission's opinion was that controls should be added to deal with the matters to which I have made reference and which are set out in some detail in the third direction.

1. Analysed in this way, it is clear that the core of the proposed amendment, one which would permit development into lots of about 550 square metres, as opposed to lots of 44,000 square metres, remained unaffected by the directions.  The directed changes relate to the management and development of those smaller allotments in the context of the neighbourhood.  Mr Spence submitted that the U amendment to the Scheme dealt with subdivisional approvals and that the Commission's third direction cuts across that amendment by imposing special requirements for this particular proposed subdivision.  The submission is correct, but there is no statutory inhibition upon the creation of special requirements for special areas in a Scheme, and the direction to do so is, no doubt, an alteration of the draft amendment to a substantial degree, but it does not alter the draft amendment so that it loses its original identity.  The draft amendment can be identified as a proposal to permit subdivision into lots of about 550 square metres in an area where subdivision into lots not smaller that 44,000 square metres is presently permitted.  The directions approve of that proposal in general terms, but state that there is a need to impose greater controls on the development of those smaller lots.

1. There is no basis for interfering with the conclusion reached by the Commission that together these directions constituted an alteration to a substantial degree.  For those reasons grounds A and B are not made out.

Ground C

1. The Act, s41A provides:

"(1) If a draft amendment is required to be modified, or altered to a substantial degree, under section 41(a), the Commission, by notice in writing to the planning authority, must ¾

(a)  direct that it undertake the modification or alteration; and

(b)  specify the manner in which the draft amendment is to be modified or altered.

(2)   A planning authority must undertake a modification, or an alteration to a substantial degree, to a draft amendment in accordance with a direction by the Commission under subsection (1) and submit the modified or altered amendment to the Commission within 28 days from the receipt of that direction or such longer period as the Commission may allow.

(3)  …".

1. By ground C of the order nisi, the prosecutor complains that the Commission's directions are so imprecise that they do not constitute a specification of the manner in which the draft amendment is to be altered as is required by s41A(1)(b). Mr Spence submitted that the power to require alteration to a substantial degree, coupled with the statutory obligation to direct the planning authority to undertake the alteration, gave colour to the meaning of the statutory duty to specify the manner in which the draft amendment is to be modified or altered. Mr Spence submitted that the requirements of the Commission in this case lack specificity and amounted to no more than a generalised indication.

1. At the outset, it might be observed that ss41 and 41A envisage two separate powers and although obviously linked and inevitably conveniently exercised together, there is no reason, in my view, why the Commission cannot require an alteration to a substantial degree and subsequently direct the planning authority to undertake that alteration in a specified manner. Section 41A(2) imposes no obligation on a planning authority to do anything at all until it has been given a direction pursuant to s41A(1)(a). However, be that as it may, I have come to the conclusion that the Commission validly exercised the power conferred on it by s41A(1)(a) and (b).

1. I accept that the word "specified" connotes a degree of precision. Specification requires explicitness, but what is required to be specified is not the alterations to the draft amendment, but the "manner in which the draft amendment is to be … altered". That is to say, s41A(1)(b) requires the Commission to make clear to the planning authority the way the draft amendment is to be altered, leaving it to the authority to effect the actual alterations. This interpretation is consistent with the scheme of the Act which places the primary responsibility for initiating amendments to a scheme in the hands of the planning (local) authority. The role of the Commission is to exercise oversight over local authorities to ensure the application of appropriate planning principles and the consistent application of State policies across the State.

1. The reasons for decision and the decision itself make abundantly clear, or specify, the manner or way in which the draft amendment is to be altered, principally, by the inclusion of design parameters for the subject land that will address the issue set out in the third direction.  Ground C is not made out.

Ground D

1. Ground D asserts that the direction to create a new precinct for the subject land and its environs is ultra vires upon the basis that the Commission has no power to direct a draft plan to be amended by including in it land other than that encompassed by the proposed draft put forward.  The Commission's reasons for decision state that the new precinct "should include at least the majority of the other titles owned by GE and SR Stevens which front on Forest Road.  The commission directed that the final boundaries of the Precinct should be determined after consideration of …".

1. A little earlier in the reasons for decision appears this passage:

"Both the applicant and the Council agreed that all the land owned by GE & SR Stevens (including the four titles already zoned Residential 2) should be developed in an integrated fashion. They also suggested that it would be sensible to include the nearby land at 156 & 162 Forest Road in a combined subdivision proposal.  In accepting that proposition, it seems to us that a consistent set of use and development controls should be applied to the total area under consideration for development.  The subject land should not become just another undifferentiated part of the Residential 2 zone.  Like many other parts of Hobart which are elevated and/or locally prominent it requires a more careful design response and corresponding sophistication in planning controls."

1. In an affidavit filed in these proceedings, the prosecutor deposed that he did not agree, as is asserted in the foregoing passage of the Commission's reasons for decision.  This Court has no jurisdiction to entertain alleged errors of fact.  Its jurisdiction is confined to a determination of whether the impugned decision should be quashed, in this case, for excess of power.  However, in my view, nothing turns upon the claimed factual error, in any event. 

1. In support of this ground, Mr Spence drew attention to the provisions of the Act, s33(1) which provides that a person may request a planning authority to amend a planning scheme and s33(2A) which renders the request ineffective unless it is made by the owner of the land, or the owner of the land consents to the request being made. If the matter rested there, there would be some substance to Mr Spence's submission, but the Act, s34(1)(b) empowers a planning authority to initiate an amendment to the scheme of its own motion. Indeed, it is a fundamental responsibility of a planning authority to be proactive in the administration of its planning scheme and to initiate appropriate amendments from time to time to suit the changing needs of the community. Regardless of whether a proposed amendment owes its origin to a request from a land owner or the initiative of a planning authority, it still has to be certified suitable for public exhibition, put on public exhibition and the public is entitled to make representations to the Council with respect to it. As has been noted earlier, the Council is obliged to report to the Commission at the end of the period of public exhibition and the Commission required to hold a hearing as enacted by the Act, s40. These are precisely the procedures that must be followed in the case of an alteration to a substantial degree of a draft amendment. By directing that other land be included in the draft amendment and declaring an alteration to a substantial degree, no more was done than could have been done by the Council when it initiated the amendment in the first place. Without deciding, as it is unnecessary to do so, I would venture to suggest that any change to a draft amendment required by the Commission that involved land other than that in respect of which the owner's consent had been given, would constitute an alteration to a substantial degree.

1. There is no statutory warrant, either express or implied, for curtailing the Commission's power under s41(a) by excluding therefrom a power to alter a draft amendment to a substantial degree by including in it land not within its scope when put on public exhibition. Ground D is not made out.

Conclusion

1. The order nisi is discharged.