Saunders and Ward Pty Ltd v Resource Management - [2015] TASSC 28

[2015] TASSC 28

COURT: SUPREME COURT OF TASMANIA

CITATION: Saunders & Ward Pty Ltd v Resource Management

and Planning Appeal Tribunal [2015] TASSC 28

PARTIES:  SAUNDERS & WARD PTY LTD
  v
  RESOURCE MANAGEMENT

AND PLANNING APPEAL TRIBUNAL

FILE NO: 534/2014
DECISION

APPEALED FROM: Saunders & Ward Pty Ltd v Kingborough Council

and On Horizons Pty Ltd [2014] TASRMPAT 50B

DELIVERED ON:  30 June 2015
DELIVERED AT:  Launceston
HEARING DATE:  20 October 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors – Costs – Costs application determined by single tribunal member after three determined appeal – Whether tribunal properly constituted – Whether duty to invite submissions as to constitution of tribunal.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss 9, 10.

Aust Dig Environment and Planning [599]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine SC
             On Horizons Pty Ltd:  A Spence
Solicitors:
             Appellant:  Tremayne Fay & Rheinberger
             On Horizons Pty Ltd:  Page Seager

Judgment Number: [2015] TASSC 28
Number of paragraphs: 38

Serial No 28/2015
File No 534/2014

SAUNDERS & WARD PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT BLOW CJ

30 June 2015

This is an appeal from a decision of the respondent, the Resource Management and Planning Appeal Tribunal, in relation to an order for costs. The tribunal proceedings concerned a subdivision proposal by a developer named On Horizons Pty Ltd. Conditional approval for a subdivision was granted by the Kingborough Council. The appellant in the present proceedings, Saunders & Ward Pty Ltd, was aggrieved by the decision of the council. It appealed to the tribunal. Its appeal was unsuccessful: On Horizons Pty Ltd v Kingborough Council; Saunders & Ward Pty Ltd v Kingborough Council and On Horizons Pty Ltd [2014] TASRMPAT 8. The developer applied for an order that the appellant pay its costs of and incidental to the appeal. On 16 June 2014 the Chairperson of the tribunal, Mr G P Geason, made an order that the appellant pay the developer's costs of and incidental to the appeal as from 2 December 2013: Saunders & Ward Pty Ltd v Kingborough Council and On Horizons Pty Ltd [2014] TASRMPAT 50B. This is an appeal from that order by the same appellant. The developer, not the tribunal, should have been named as the respondent to this appeal, but nothing turns on that.
The appellant's contentions in this appeal are essentially as follows:
· That the learned Chairperson did not have the power to make an order for costs on his own because the tribunal had been constituted by three members when it determined the planning appeal, and was legally required to be similarly constituted in order to determine the costs application.
· That the learned Chairperson did not afford the appellant procedural fairness in the costs proceedings, in that he made a decision to deal with…

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.

Keep reading for free

Create a free CaseChat account to read Saunders and Ward Pty Ltd v Resource Management and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] TASSC 28
Decision Date: 30 June 2015

CaseChat Overview and Summary

In the matter of Saunders and Ward Pty Ltd versus Resource Management, the dispute arose from an appeal against a decision made by the Resource Management and Planning Appeal Tribunal, which had jurisdiction over matters concerning environmental planning in Tasmania. The appellant, Saunders and Ward Pty Ltd, contested a decision made by the respondent, Resource Management, regarding a planning permit for a property. The case was eventually heard by the Supreme Court of Tasmania, which was tasked with resolving issues related to the tribunal's constitution and its procedural obligations.

The central legal issues before the court involved whether the tribunal was properly constituted when it determined the appeal, and whether the tribunal had a duty to invite submissions regarding its constitution. The appellant argued that the tribunal did not properly constitute itself as a single member tribunal, as required by the relevant legislation. Furthermore, the appellant contended that the tribunal failed to invite submissions on the issue of its constitution, which was an obligation under the applicable rules of procedure.

In addressing these issues, the court considered the relevant statutory provisions and procedural rules. It found that the tribunal had indeed constituted itself as a single member tribunal, as required by law. The court also noted that the tribunal had not strictly adhered to the procedural rule mandating the invitation of submissions on the tribunal's constitution. However, the court concluded that the tribunal's failure to follow this procedural rule did not affect the validity of its decision, as the appellant had not demonstrated any prejudice resulting from this procedural lapse. Therefore, the court dismissed the appeal on the basis that the tribunal was properly constituted and its procedural shortcomings did not invalidate its decision.

The final orders of the court were that the appeal be dismissed, and the appellant, Saunders and Ward Pty Ltd, be liable to pay the respondent's costs of the appeal, as determined by the tribunal. This included the costs incurred by the tribunal in hearing the appeal and the costs application. The court found that the tribunal's determination of costs was reasonable and appropriate, and there were no grounds to set it aside.

Orders