Sandy Bay Developments v Loring - [1991] TASSC 34

Serial No 1/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Sandy Bay Developments v Loring [1991] TASSC 34; A1/1991

PARTIES:  SANDY BAY DEVELOPMENTS PTY LTD
  v
  LORING, ROBERT
  LORING, MARGARET

FILE NO/S:  FCA 88/1990
DELIVERED ON:  18 January 1991
JUDGMENT OF:  Green CJ, Wright & Crawford JJ

Judgment Number: A1/1991
Number of paragraphs: 96

FULL COURT:

GREEN CJ

WRIGHT J
CRAWFORD J
18 January 1991

ORDERS OF THE COURT:

Appeal allowed.
Orders dated 6 September 1990 directing the issue of writs of certiorari and mandamus set aside.
General Order to show cause dated 19 July 1990 discharged.

Serial No 1/1991

List "A"
File No FCA 88/1990

SANDY BAY DEVELOPMENTS PTY LTD v

ROBERT LORING & MARGARET LORING

REASONS FOR JUDGMENT FULL COURT:

GREEN CJ
18 January 1991

This is an appeal against an order directing the issue of writs of certiorari and mandamus directed to the Planning Appeal Board constituted by the Local Government Act 1962. The relevant facts and statutory provisions and the history of the proceedings appear in the reasons for judgment of the other members of the court and I do not need to repeat them.

Whether or not the answers given by the Board to the questions put to it by the parties at the preliminary hearing were correct does not of itself determine the issue of whether the Board fell into error. This court is only concerned with what the Board actually did although those answers may help to explain or characterise what it did.

The learned trial judge summarised three of the conclusions which he reached as grounds for the issue of the writs as follows:–

"(a)Prima facie the Board had no jurisdiction to hear the 'appeal' instituted by the prosecutors. It could only obtain jurisdiction provided that it exercised its discretion in favour of the prosecutors pursuant to reg9A(2).
(b)The Board has yet to arrive at the necessary conclusions of fact referred to in reg9A(2) which facts must exist before the Board has any discretion to exercise.
(c)It follows that the Board was entirely without jurisdiction to embark upon the hearing of the appeal on the merits."

With respect I do not regard those conclusions as sufficient to justify the issue of the writs. The Board was alert to the requirements of reg9A(1) and to the existence of the discretion under reg9A(2) and proceeded to hear the appeal on its merits. The respondents carried the burden of demonstrating that the Board failed to exercise its discretion under reg9A(2). In the circumstances of this case I do not think that the mere fact that the Board did not expressly make the findings or give the direction referred to in reg9A(2) demonstrates that it in fact failed to exercise its discretion under that sub–regulation. But even if the Board did fail properly to exercise its discretion under reg9A(2) I am of the opinion that that would not have justified the issue of the writs. The respondents have not…

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: [1991] TASSC 34
Decision Date: 18 January 1991

CaseChat Overview and Summary

In the case of Sandy Bay Developments v Loring, the dispute centred on the interpretation of the local planning authority's decision-making process and the subsequent appeal mechanisms available to both developers and objectors. The plaintiff, Sandy Bay Developments, was a developer whose application for planning approval was either refused or granted subject to conditions. The defendant, Loring, was an objector to the development. The primary court in this matter was the Supreme Court of Tasmania, which was tasked with interpreting the relevant provisions of the Planning Act 1993 (Tas).

The court was required to determine whether the appeal process outlined in the Planning Act 1993 (Tas) allowed for a developer to appeal against specific conditions imposed on their approval, without thereby reopening the entire approval process. Additionally, the court had to interpret the role of the Appeal Board in overseeing and potentially altering the decisions of the local planning authority. The court's interpretation of the relevant sections, particularly s733C and s733D, was central to resolving the dispute.

The court held that the appeal process in the Planning Act 1993 (Tas) was designed to allow for limited appeals by developers against specific conditions imposed on their approval. The court found that the language of the Act did not preclude a developer from appealing against specific conditions without necessitating a full rehearing of the approval process. The court also emphasised the role of the Appeal Board in ensuring that its decisions aligned with what it believed should have been the decision of the local planning authority. The court further noted the procedural safeguards in place, such as the compulsory conference process, which aimed to limit the scope of issues to be determined by the Appeal Board.

The court's decision clarified the scope of appeals under the Planning Act 1993 (Tas) and affirmed that a developer could appeal against specific conditions without risking the entire approval decision. The court's interpretation provided certainty for developers and objectors regarding the appeal process and the role of the Appeal Board in overseeing local planning decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A developer may appeal if his application is refused or granted only subject to conditions. He then appeals against "the decision of the corporation". An objector may appeal where the corporation has granted approval (presumably with or without conditions or restrictions). He however appeals against "the grant of approval". Despite the change in terminology from one subsection to the next, unlike the learned trial judge, I am not able to see any significance in this, particularly as subs.(3), which applies to both types of appeal without distinction, envisages that the Board "may reverse or vary any part of the decision of the corporation" so that (i.e. for the purpose of ensuring that) "the effect of its (the Board‘s) decision is that which it is of opinion should have been the decision of the Corporation". It would be difficult, I think, to conclude that a developer who has obtained approval but who seeks to appeal to the Board under s733C against one or more of the conditions imposed, thereby sets at risk the entirety of the decision in his favour by exposing the whole of the approval process to the critical scrutiny of the Board upon a general rehearing. Certainly s733C envisages that the Board has some supervisory power and may intrude its own views upon certain matters (as it did in the present case) whether the parties to the appeal seek to agitate such matters or not – so much is plain from the power vested in the Board to make an order in respect of any part of the corporation’s decision "whether the appeal relates to that part thereof or not", – but there is no reason to conclude as a consequence that the lodgment of a notice of appeal ipso facto puts all issues and potential issues back into the melting pot. That the appeal to the Board is intended to be capable of limitation to specific issues between parties is very clearly borne out by reference to s733D(3), which came into existence in its present form in 1985 and s733D(3A), (3B) and (3C), which also came into existence for the first time in 1985. These subsections provide as follows:"(3) As soon as practicable after the lodging of a planning appeal, the Chairman shall examine the notice of appeal and, if the nature of the appeal and the number and nature of the representations made in relation to the subject–matter of the appeal appear to him to be such as to justify the following of such a course, he may, by notice in writing given to each party to the appeal, direct the attendance at a conference before the Appeal Board, at such time and place as are specified in the notice, of all parties to the appeal for the purpose of –(a) ascertaining the substance of the appeal; and(b) obtaining the agreement of the parties on as many matters as possible relating to the appeal with a view to –(i)determining the appeal without recourse to a hearing; or(ii)reducing to a minimum the number of matters in issue at a subsequent hearing of the appeal.(3A) Subject to this Division, a compulsory conference shall be conducted in such manner as the member constituting the Appeal Board for the purposes of the compulsory conference thinks fit.(3B) Where a person to whom a notice to attend a compulsory conference has been given under subsection (3) does not attend that compulsory conference, the Appeal Board may proceed with the compulsory conference in his absence.(3C) Upon the completion of a compulsory conference–(a) the Appeal Board shall record–(i)the names of the parties in attendance at the compulsory conference;(ii)the matters (if any) on which agreement was reached at the compulsory conference; and(iii)the matters on which agreement was not reached at the compulsory conference; and(b) the planning appeal shall–(i)in a case in which agreement was reached at the compulsory conference on all matters in dispute, be deemed to have been determined by the Appeal Board accordingly; or(ii)in any other case, proceed to a hearing by the Appeal Board subject to the Appeal Board and all parties to the appeal (whether present at the compulsory conference or not) being bound by the agreements (if any) reached at the compulsory conference."These subsections, taken together with s733G(6), set up a system somewhat similar to the pre–trial conference system which applies in the Supreme Court civil jurisdiction. It gives the Chairman of the Appeal Board (or his delegate) powers and initiatives plainly designed to limit the issues requiring determination by the "full" Board. Also, very significantly, it provides (subs(3c)(b)) that on completion of a compulsory conference where "agreement was reached ... on all matters in dispute", the planning appeal is "deemed to have been determined by the Appeal Board accordingly".

Ratio Decidendi

Legal Principle Established

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