Smith v Hobart City Council - [2010] TASFC 9

[2010] TASFC 9

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Smith v Hobart City Council [2010] TASFC 9

PARTIES:  SMITH, John
  SMITH, Penny
  v
  HOBART CITY COUNCIL

FILE NO: 226/2010
JUDGMENT

APPEALED FROM: Hobart City Council v Smith (2010) 172 LGERA 272, [2010] TASSC 11

DELIVERED ON:  21 December 2010
DELIVERED AT:  Hobart
HEARING DATE:  14 September 2010
JUDGMENT OF:  Evans, Blow and Wood JJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Control of particular matters – Subdivision – Principles governing consent or approval – General principles – Refusal based on lack of access to adjoining lot – Relevant considerations – Duty to further objective of providing for fair and orderly development.

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), s85(a).
Aust Dig Environment and Planning [184]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Respondent:  D J Morris
Solicitors:
             Appellant:  Shaun McElwaine & Associates
             Respondent:  Simmons Wolfhagen

Judgment Number: [2010] TASFC 9
Number of paragraphs: 36

Serial No 9/2010
File No 226/2010

JOHN SMITH and PENNY SMITH v HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

EVANS J
BLOW J
WOOD J
21 December 2010

Orders of the Court

Appeal allowed.

The order dated 19 March 2010 is varied so that order no 3 therein reads as follows:

"The appeal to the Resource Management and Planning Appeal Tribunal is remitted to that tribunal for reconsideration in accordance with directions that (a) the tribunal is to be differently constituted; and (b) the tribunal is to regard as relevant considerations (i) the Hobart City Council's past planning decisions relating to 512 Nelson Road, and (ii) the financial consequences of the provision of public road access to 512 Nelson Road through the land of John Smith and Penny Smith."

Serial No 2/2010
File No 226/2010

JOHN SMITH and PENNY SMITH v HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

EVANS J
21 December 2010

I agree with the reasons of Blow J and agree that the appeal should be allowed to the extent of varying the order of the learned primary judge by adding the directions to the tribunal specified by Blow J.
File No 226/2010

JOHN SMITH and PENNY SMITH v HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

BLOW J
21 December 2010

This appeal concerns an application by the appellants for a permit for a subdivision. They own a bushland block at 502 Nelson Road, Mount Nelson. Its total area is about 2.26 hectares. They want to subdivide it into 12 residential lots. They applied to the Hobart City Council ("the council") for the necessary permit under the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s57. The council refused that application.

There is a similar property that adjoins the appellants' land. That property is 512 Nelson Road. That property does not have a frontage onto any public road. The owner of 512 Nelson Road applied for a permit for a subdivision of that land in 2006, but that application has neither…

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: [2010] TASFC 9
Decision Date: 21 December 2010

CaseChat Overview and Summary

Smith, the applicant, sought judicial review of a decision by the respondent, the Hobart City Council, to refuse a development application for subdivision. The dispute concerned the Council's refusal of the application, which was based on the perceived lack of adequate access to an adjoining lot.

The primary legal issue before the Full Federal Court was whether the Council, in refusing the development application, had failed to properly consider its duty to further the objective of providing for fair and orderly development, as mandated by the relevant planning legislation. Specifically, the Court had to determine what constituted "relevant considerations" for the Council when assessing development applications, particularly in relation to access issues.

The Court reasoned that the Council's refusal, predicated solely on the perceived lack of access to an adjoining lot, was too narrow an interpretation of its statutory obligations. The Court held that the Council had a positive duty to actively further the objective of fair and orderly development, which encompassed a broader range of considerations than merely the immediate access to an adjoining property. The principles applied underscored the importance of a holistic approach to development assessment, requiring the Council to consider the overall impact and benefits of the proposed subdivision in light of the planning scheme's objectives.

The Court found that the Council had erred in law by failing to properly consider its duty to further the objective of providing for fair and orderly development. Consequently, the Court quashed the Council's decision and remitted the matter back to the Council for reconsideration according to law.

Orders