R v West Tamar Council; ex parte Phillips - [1999] TASSC 107

[1999] TASSC 107

CITATION: R v West Tamar Council; ex p Phillips [1999] TASSC 107

PARTIES:  R
  v
  WEST TAMAR COUNCIL

PHILLIPS, Gerald Robert
PHILLIPS, Helen Lorna, Ex Parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR M11/1999
DELIVERED ON:  20 October 1999
DELIVERED AT:  Hobart
HEARING DATES:  23 September 1999
JUDGMENT OF:  Evans J

CATCHWORDS:

Highways - Definition and general matters - Road - "Public road" - Proposed subdivision - Meaning of "road" in the Local Government (Building and Miscellaneous Provisions) Act 1993, s109 - Whether a Crown reserved road satisfied that meaning.

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), ss3, 84, 89(1), 109.
Aust Dig Highways [3]

REPRESENTATION:

Counsel:
             Prosecutors:  R W Pearce
             Respondent:  S B McElwaine
Solicitors:
             Prosecutors:  Douglas & Collins
             Respondent:  Shaun McElwaine

Judgment Number: [1999] TASSC 107
Number of Paragraphs: 23

Serial No 107/1999
File No M11/1999

THE QUEEN v WEST TAMAR COUNCIL,
Ex Parte GERALD ROBERT PHILIPS and HELEN LORNA PHILLIPS

REASONS FOR JUDGMENT EVANS J

20 October 1999

This is the return of an order to show cause, directed to the West Tamar Council ("the Council"), why a writ of mandamus should not issue to command the Council to seal a final plan of subdivision lodged by Gerald Robert Phillips and Helen Lorna Phillips ("the prosecutors") and forward the same to the Recorder of Titles.

On 14 September 1994, the Council granted the prosecutors a development permit in relation to their proposal to subdivide a block of land which fronts on Asbestos Road, west of York Town. By the proposal, the block is to be subdivided into two lots; a lot of 23.3 hectares fronting on Asbestos Road and an internal lot of 29.5 hectares. The internal lot is to obtain access to York Town Road via a track over adjoining land marked on the subdivision plan as a reserved road, 20.12 metres wide. This access is not a public road. It has not been dedicated as a public way.

The terms of the permit are set out in a letter from the Council to the prosecutors, the relevant portion of which is as follows:

"In accordance with Section 57(8) of the Land Use Planning and Approvals Act 1993 you are advised that council has agreed to approve the proposal and to issue a permit subject to the following conditions.
1    Approval is for lot 1 and the balance area.
2    All necessary easements including an HEC wayleave easement for a power supply to lot 1.
3    The issuing of an access licence from the Department of Environment and Land Management over the reserved road.
4    Subdividers written agreement to these conditions of approval.
5    Review of these conditions of approval if the survey diagram is not sealed within 2 years of the date of issue of this permit."

With a view to satisfying condition 3 of the permit, the prosecutors sought and obtained an access licence from the Department of Environment and Land Management. The…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1999] TASSC 107
Decision Date: 20 October 1999

CaseChat Overview and Summary

The Supreme Court of Tasmania was asked to determine whether the West Tamar Council had to seal a final plan of subdivision submitted by Gerald Robert Phillips and Helen Lorna Phillips. The Council had previously granted the Phillipses a development permit, but they now refused to seal the final plan, claiming the internal lot did not meet the road frontage requirements under the Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas). The Phillipses sought a writ of mandamus to compel the Council to seal the final plan and forward it to the Recorder of Titles.

The central legal issues were whether the term "road" in section 109 of the Act meant a public road, and whether the Council's refusal to seal the final plan was justified under sections 84 and 89 of the Act. The court had to interpret the meaning of "road" in section 109 and determine whether the Council breached section 84 by granting an invalid planning permit and whether section 89 prohibited the Council from sealing a final plan based on the invalid permit.

The court found that "road" in section 109 of the Act meant a public road, not a private right-of-way or a licence to use a reserved road. The court reasoned that a private right-of-way or licence did not provide the same level of security and permanence required for a "road" under section 109. As the internal lot did not have a frontage on a public road, it did not satisfy the minimum lot requirements. The court held that the Council breached section 84 by granting the invalid planning permit. However, the court found that section 89 prohibited the Council from sealing a final plan based on the invalid permit because the plan would not comply with the minimum lot requirements of section 109.

The court discharged the order to show cause, finding that the Council was not required to seal the final plan submitted by the Phillipses.

Orders