Re Timberworld Pty Ltd
[1991] TASSC 112
•20 December 1991
112/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Re Timberworld Pty Ltd [1991] TASSC 112; A112/1991
PARTIES: RE TIMBERWORLD PTY LTD
JUDGMENT
APPEALED FROM Re Timberworld Pty Ltd, Serial No B20/1991
FILE NO/S: M 18/1991
DELIVERED ON: 20 December 1991
DELIVERED AT: Hobart
JUDGMENT OF: Underwood, Crawford and Slicer JJ
CATCHWORDS:
Judgment Number: A112/1991
Number of paragraphs: 28
Serial No 112/1991
List "A"
File No M18/1991
RE TIMBERWORLD PTY LTD
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
SLICER J
20 December 1991
Order of the Court
Appeal dismissed.
Serial No 112/1991
List "A"
File No M18/1991
RE TIMBERWORLD PTY LTD
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
20 December 1991
This is an ex parte application for an order nisi calling upon the Planning Appeal Board and other interested persons, to show cause why a writ of certiorari should not issue to remove into this Court and quash, a determination of the Board made on 12 April 1991.
The application was first made to a single judge who refused it. See Re Timberworld Pty Ltd, Serial No B20/1991, per Cox J. It is renewed to this Court. See Rules of Court, O76, r6.
Seven grounds were relied on when the application was first made. Upon the renewal of the application to this Court only one of those seven grounds was said to justify the making of the order nisi. The relevant facts as they appear in the affidavit filed in support of the application are as follows.
Since June 1988, a director of the applicant company has owned approximately 7 acres of land at Meander known as "The Old Cummings Brothers' Sawmill". On 26 October 1990 the applicant went into occupation of the land with the consent of the owner. Its business is the sale of timber and timber products and it wished to use the land for the purpose of storage, sale, planing and milling of timber.
On 5 June 1990 the Warden, Councillors and Electors of the Municipality of Deloraine fixed their seal to a document entitled:
"The Municipality of Deloraine Interim Order No 1 of 1990 promulgated under the provisions of s734 of the Local Government Act 1962."
It claims to provide for the regulation of the matters referred to in the Local Government Act 1962, Sch7, and states that it is effective from 20 June 1990 and that it applies to land in the Municipality "within the area wholly enclosed by a thick black line on the plan." It also contains the following provisions:
"3 Description:
In this Interim Order, 'the Ordinance' and 'the plan' means the Municipality of Deloraine Planning Document No. 1 1986 comprising the written Ordinance and Plan(s) provisionally approved by the resolution of the council of the said Municipality passed on the 19th day of January 1987.
5. Application:
Insofar as the Municipality of Deloraine has resolved to prepare a Planning Scheme over the Planning Area, this Interim Order shall apply for a period not exceeding three years from the date hereof and subject to any provision to the contrary therein, a person shall not undertake any development of any land to which this Interim Order relates unless that person has obtained planning approval in relation to that development in accordance with provisions of the Ordinance [sic]."
The order was approved by the Commissioner for Town and Country Planning and advertised in the Government Gazette. The affidavit filed in support of the application exhibited a document entitled "Municipality of Deloraine. Planning Document No 1, 1986, Ordinance." This document is a photocopy of the original. Although the photocopy does not show the common seal of the Municipality it appears from the attestation clause that it was affixed to the original in accordance with the provisions of the Local Government Act, s131. Judicial notice shall be taken of such a seal; the Evidence Act, s46. The ordinance can be described as a small planning scheme. It is 54 pages long and includes provision for a number of zones, prescribes defined uses as permitted, discretionary or prohibited in each zone and contains a number of provisions dealing with the making and determination of development applications.
According to some council minutes exhibited to the affidavit, the land occupied by the applicant is within a Village zone and the ordinance prohibits the use to which the applicant proposed to put the land. According to para7 of the affidavit: "On or about the 28th day of November, 1990 the Applicant applied to the Municipality of Deloraine for a dispensation pursuant to the provisions of Section 734 of the Local Government Act 1962 to develop and use the land for the purpose of the storage, sale, planing and milling of timber."
This application was not included in the material put before the Court. The affidavit continues that the Municipality "subsequently granted to the Applicant a dispensation" and annexes a minute for the council meeting held on 19 November 1990. Obviously this meeting was not held subsequent to the application. At all events, the minute refers to an application by the applicant and advice from "the Commission" that the council may "dispense with the Interim Order and consider the application on its merits." The following recommendation was adopted:
"It is recommended that the Council disperse [sic] with the Interim Order 190 with respect to this application and consider the proposal as a discretionary use."
Precisely what the council decided at this meeting is difficult to make out. The Local Government Act 1962, s734(2)(b) empowered a Municipality to "issue dispensations, absolute or conditional, from its interim orders in such cases as it thinks proper." It would seem that the council purported in effect, to alter the terms of the interim order rather than dispense with it conditionally. A conditional dispensation has the effect of excluding specified land from the operation of the order on condition there is compliance with certain specified conditions relating to the use of the land. A possible construction of the council's resolution on 19 November 1990 is that council resolved to grant a dispensation conditional upon it considering and subsequently approving the proposed use as if the interim order applied but the land fell within a zone which gave the council a discretion to permit or refuse the proposed use. Whatever construction is put upon the resolution of council made on 19 November 1990, in the event of the council deciding to prohibit the proposed use the only appropriate resolution would be a refusal to grant a dispensation from the interim order.
A council minute for the meeting held a month later (17 December 1990) recites receipt of an application by the applicant to operate a timber mill. It also recites the following:
"The land is presently zoned village under the Interim Order 1/90 with a timber mill being a prohibited use. At its last meeting Council agreed to conditionally dispense with the Interim Order and invited Mr Booth to submit a planning application to that effect."
The exhibit copy of the minute concludes with a recommendation that "the proposal not be approved." The minute of the council decision consequential upon this recommendation is not exhibited to the affidavit. However, the deponent deposed that "the Municipality of Deloraine subsequently refused the Applicant discretionary planning approval in respect of the land."
By notice dated 23 December 1990, the applicant appealed to the Planning Appeal Board. According to the notice it was "against the decision of the Corporation of the Municipality of Deloraine in relation to application No. 2690 being a decision advertised in The Examiner on the 22nd December 1990 refusing to grant planning approval." Eight grounds of appeal were set out. Seven related to matters of planning principle and one asserted that "the use of the site was within an existing use right." The lodgement of the notice of appeal was accompanied by a letter to the Secretary of the Planning Appeals [sic] Board which said in part:
"We emphasise that this appeal is lodged solely because of the time limits contained in the Local Government Act 1962. The appeal is without prejudice to:
1The existing use right of the subject site.
2Our client's current Supreme Court proceedings to annul the decision of the Municipality of Deloraine, which proceedings were commenced on 20th December, 1990.
3Our client's rights to seek a Supreme Court declaration that the interim order applying to this land is invalid.
4Any estoppel which may have arisen in respect of our client's use of the subject site."
There is no material before us with respect to any Supreme Court proceedings other than the present application. The appeal came on for hearing on 26 March 1991. The affidavit material does not disclose the identity of the persons comprising the Board at this hearing who presumably, would be respondents to an order nisi if it were made. According to the affidavit filed in support of this application "the sole issue which was dealt with by the Board on that occasion was whether it had jurisdiction over the whole or any part, and if so what parts, of the appeal. Only Mr McElwaine and Mr Stace made submissions to the Board in that regard."
At the hearing before the Board the documents entitled "Planning Interim Order" and "Planning Document No 1, 1986 Ordinance" were produced. Also produced were three plans showing land (including that occupied by the applicant) purportedly within the terms of the interim order. The ordinance referred to in the interim order provides that it regulates the development of land within the planning area. The planning area is defined by the ordinance to mean:
"the whole of the land bounded by a thick black line on the Plan, to which the Interim Order applies."
The plan is also defined to mean:
"the plan(s) annexed to this Ordinance which show by colours and markings the various uses to which the land in that area may be put."
It was common ground before the Planning Appeal Board that no plan had ever been physically affixed to the ordinance and, according to the affidavit, the undisputed evidence before the Planning Appeal Board was that:
"Apart from the plans of the Municipality of Deloraine entitled 'Municipality of Deloraine Planning Document No 11987', there are no other plans of the Municipality of Deloraine dealing with the zoning of lands within the Municipality."
I infer that the deponent is there referring to the plans produced at the Planning Appeal Board hearing.
Following legal submissions the hearing was adjourned. A letter dated 12 April 1991 and addressed to the applicant care of its solicitor was signed by someone purporting to act on behalf of the clerk to the Commissioner for Town and Country Planning. This letter said (formal parts omitted):
"The Board has ruled in relation to the preliminary hearing on 27th March 1991, as follows:
1The Interim Order is valid. It was 'made' by Council pursuant to S734 of the Local Government Act, 1962. If not initially valid it was validated by Act No. 49 of 1990.
2The Interim Order is valid in that it is in respect of a specified area.
"the lands under the jurisdiction of the Municipality of Deloraine within the area wholly enclosed by a thick black line on the plan". Interim Order Paragraph 4.
3The Interim Order does apply to development in the sense of a change of use as defined in S721A and construction of the road is 'development'.
4The Interim Order is capable of application to the land the subject of the application for planning approval.
5The use of land by the applicant for a sawmill and sales of wood is a change of use of the land, insofar as it extends beyond the storage of wood for domestic non–commercial purposes and requires planning approval.
6The dispensation and planning approval granted were granted validly pursuant to the Local Government Act, 1962.
The hearing will continue as arranged on 22nd May 1991 in Deloraine."
Counsel for the applicant sought to justify the making of an order nisi upon the single ground that:
"The undisputed evidence before the Planning Appeal Board being that no plans have ever been annexed to the Planning Ordinance referred to in the Interim Order, it was not open to the Board to receive documents purporting to be plans and therefore upon a proper construction the Interim Order could have no application to the land comprised in Certificate of Title, Volume 2116, Folio 11."
According to the affidavit filed in support of this application "the plans were received by the Board subject to their admissibility being determined." This reference to what occurred on the hearing of the appeal and the terms in which the ground upon which this application is based is framed, reflect a misconception. The rules of evidence have no application on a hearing before the Planning Appeal Board. The Local Government Act, s733D(7) empowers the Board to "inform itself on the matter the subject of the appeal in such manner as it thinks fit." Its determinative powers are exhaustively set out in s733C(3) in the following terms:
"Where an appeal is brought under this section, the Appeal Board may allow or dismiss the appeal, or may reverse or vary any part of the decision of the corporation, whether the appeal relates to that part thereof or not, so that the effect of its decision is that which it is of opinion should have been the decision of the corporation on the application to which the appeal relates."
Although the Board is free to determine its own procedures (s733D(7)) and accordingly, hear argument on a preliminary legal point, a "ruling", such as that contained in the letter dated 12 April 1991 has no force of law. In can be no more than an indication of the Board's view with respect to the preliminary matters raised, a view which no doubt if unchanged, will be reflected in the determination made in the exercise of the power contained in s733C(3). However, leaving to one side the status and effect of "the ruling" it was in part, that "the Interim Order is capable of application to the land the subject of the application for planning approval." Counsel for the applicant submitted that that part of the ruling was in error as no plans had ever physically been attached to the ordinance, and consequentially, the interim order had no application to the applicant's land or indeed, any land at all. It was submitted that in result, the council's decision was without lawful authority and it followed, that the Planning Appeal Board was without jurisdiction to review it.
The applicant did not produce the plans which were before the Planning Appeal Board on the hearing of this application. Accordingly, this Court is deprived of fully understanding the material upon which the Board based its ruling. Apart from the fact that the plans were entitled "Municipality of Deloraine Planning Document No 11987" there is no evidence before this Court as to what else was written on the plans which may or may not have led the Planning Appeal Board to the conclusion that, they were "annexed" to the ordinance. In his reasons for refusing the application Cox J said at p.5 that there was evidence (inter alia) that the plans bore "the attestation mentioned earlier namely, that the seal of the Corporation was thereto affixed on 19 January 1987 in pursuance of authorisation given at a meeting of the Council held on the same day." His Honour does not say where such evidence appeared on the application before him. It was not included in the evidence put to this Court. As this is not an appeal but a renewal of an ex parte application we are not concerned with Cox J's findings of fact or the evidence presented to him. The evidence referred to is significant of course, because it is to the effect that the ordinance and the plans were sealed the same day on the authority of a resolution of council also made on the same day, 19 January 1987.
Further, this Court does not have the determination of the council which was the subject matter of the appeal to the Planning Appeal Board. It is fundamental to the submission in support of the application for an order nisi that this decision is a nullity. It is described by the deponent as a refusal to grant the applicant "discretionary planning approval" but, it is described in the ruling of the Planning Appeal Board as a "dispensation and planning approval".
Annex does not of necessity connote physical attachment. See Oxford English Dictionary (2nd edn), "3. to add as an additional part to existing possessions (with or without local contiguity)." One document is capable of being annexed to another without physical attachment provided each contain appropriate words to unite the two documents.
In the absence of the resolution alleged to be a nullity and in the absence of the plans this Court cannot be satisfied to the requisite degree that this is an appropriate case in which to make the order sought. The hearing before the Planning Appeal Board has not yet concluded. The Appeal Board has made no final determination. Should the applicant consider that the final determination is made without jurisdiction then it can, if it chooses, make application for an order nisi with respect to that final determination and no doubt, upon that application, will put all the relevant materials before the court.
I would dismiss the application.
File No M18/1991
RE TIMBERWORLD PTY LTD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
20 December 1991
I agree with the reasons for judgment of Underwood J and the order he proposes.
File No M18/1991
RE TIMBERWORLD PTY LTD
REASONS FOR JUDGMENT FULL COURT
SLICER J
20 December 1991
I have had the opportunity of reading, in draft form, the reasons for judgment of Underwood J and agree with both the reasoning and conclusion.
I would dismiss the application.
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