Tasmanian Water and Sewerage Corporation (Northern Region) Pty Ltd v Tasmanian Planning Commission
[2013] TASSC 15
•10 May 2013
[2013] TASSC 15
COURT: SUPREME COURT OF TASMANIA
CITATION:Tasmanian Water & Sewerage Corporation (Northern Region) Pty Ltd v Tasmanian Planning Commission [2013] TASSC 15
PARTIES:TASMANIAN WATER & SEWERAGE
CORPORATION (NORTHERN REGION) PTY LTD
v
TASMANIAN PLANNING COMMISSION
FILE NO: LDR 117/2012
DECISION
UNDER REVIEW: West Tamar Planning Scheme 2006 amendment 5/2009 [2012] TASPComm 10
DELIVERED ON: 10 May 2013
DELIVERED AT: Hobart
HEARING DATE: 13 December 2012
JUDGMENT OF: Blow CJ
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review - Procedural fairness – Generally – Extent of duty – Planning authority minded not to impose all permit conditions sought by water authority – Whether duty to invite further submissions.
Tasmanian Planning Commission Act 1997 (Tas), s10(1)(b)(v).
R v Resource Planning and Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69; F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, referred to.
Aust Dig Administrative Law [1045]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: No appearance
Attorney-General: P Turner
Solicitors:
Applicant: Shaun McElwaine + Associates
Respondent: No appearance
Attorney-General: Director of Public Prosecutions
Judgment Number: [2013] TASSC 15
Number of paragraphs: 13
Serial No 15/2013
File No LDR 117/2012
TASMANIAN WATER & SEWERAGE CORPORATION
(NORTHERN REGION) PTY LTD v TASMANIAN PLANNING COMMISSION
REASONS FOR JUDGMENT BLOW CJ
10 May 2013
This is an application under the Judicial Review Act 2000 for the review of a decision made by delegates of the respondent, the Tasmanian Planning Commission. The decision related to an application by a developer, Ecclestone Lakes Pty Ltd, under s43A of the Land Use Planning and Approvals Act 1993 ("the LUPA Act") for the rezoning of some land at Riverside, and for a planning permit for a subdivision of that land. On 31 January 2012 the delegates made a decision giving the Commission's approval to a draft amendment of the relevant planning scheme, and modifying the permit for the subdivision, which had been granted at an earlier stage by the West Tamar Council. In its modified form, the permit contained a series of conditions. Those conditions included, in an annexure to the permit, a series of conditions relating to water and sewerage infrastructure. The applicant company is a public authority. It is usually known by the name "Ben Lomond Water". It claims to be aggrieved by the decision under review. It contends that, during the process of deciding what the permit conditions relating to water and sewerage infrastructure were to be, the Commission's delegates denied it natural justice. It contends that the Commission's decision should be set aside in part, and remitted to the Commission for reconsideration.
The respondent, the developer, and the West Tamar Council all chose not to take any part in these proceedings. The Attorney-General intervened in the proceedings pursuant to s39 of the Judicial Review Act. At the hearing he was represented by counsel, who opposed the application.
The events leading up to the making of this application were as follows:
· In the beginning, the developer made an application to the council, in its capacity as the relevant planning authority, to amend the relevant planning scheme so as to rezone part of its land, and for a permit providing for the development of a staged 86-lot residential subdivision.
· On 16 June 2009, the council decided to initiate the amendment, and to grant the requested permit, subject to certain conditions, pursuant to s43F(1)(b)(i) of the LUPA Act.
· The council subsequently caused a copy of the draft amendment to be placed on public exhibition, together with documentation relating to the permit, and advertised the exhibition of that material, pursuant to ss38 and 43F of the LUPA Act.
· On 15 March 2011 the council resolved no longer to support the amendment, and to request that the Commission refuse it.
· On 26 June 2011 the delegates held a hearing pursuant to s40(2) of the LUPA Act.
· On 10 August 2011 one of the Commission's delegates wrote to "Ben Lomond Water" advising that the Commission was "assessing the draft amendment and draft permit". This was the first time that the applicant had been notified that an amendment and a permit had been sought and that decision-making in relation to them was in progress. The delegate asked a number of questions, including the following:
"Can Ben Lomond Water supply the Panel [ie the delegates] with its required permit conditions that should be applied to the modified residential subdivision … in the event that the Panel determines in favour of that subdivision?"
· On 9 September 2011 one of the applicant's officers, Mr Skinner, wrote back to the Commission, answering the delegate's questions. With his letter he forwarded a document setting out 15 conditions for inclusion in the permit, in the event of it being granted.
· On 30 November 2011 a Mr Brownlie, who was working for a consultant engaged by the developer, wrote to Mr Skinner. He mentioned that there was a Commission hearing scheduled for 8 December 2011. He asked some questions about two of the proposed permit conditions contained in the document that Mr Skinner had submitted, nos 3 and 15.
· On 1 December 2011 Mr Skinner sent an email back to Mr Brownlie responding to his enquiry.
· On 8 December 2011 the Commission's delegates conducted a further hearing. The Commission had not notified the applicant of that hearing. The applicant was not represented at it.
· On 31 January 2012 the Commission's delegates made the decision under review. They gave the Commission's approval to the draft amendment pursuant to s42, and modified the permit pursuant to s43H(1)(b)(ii). By their modifications, amongst other things, they imposed most of the permit conditions set out in the document submitted to them by Mr Skinner. However they did not impose the conditions numbered 3, 14 and 15 in that document.
Those three conditions read as follows:
"3 STAGING OF SUBDIVISION
The Developer shall submit, and receive BLW approval for, the complete Water and Sewerage servicing plan together with detailed construction plans of the Development prior to the commencement of works (Water and Sewerage Infrastructure) on site.
…
14DEVELOPMENT ASSESSMENT FEES (DEVELOPMENT APPLICATIONS-SUBDIVISION)
This Development has been assessed as (Significant) in accordance with the BLW Development Assessment Services Fee Schedule as posted on the BLW Web Site.
The Development Assessment Services fees applicable to this application and payable to BLW include:
· Development Applications – Subdivision
· Engineering Design Approval
· Final Plan Sealing
The Applicant shall pay to BLW, the Development Applications – Subdivision fee of $1359.60 within 30 days of receipt of the associated invoice.
Further assessment and approvals by BLW may not proceed until any or all outstanding fees associated with this development have been paid.
The Applicant shall pay to BLW, the Engineering Design Approval fee, relating to the number of lots detailed in the engineering drawing submission, as listed in the Fee Schedule posted at the time of the drawing submission. Payment shall be made prior to the issue of the BLW Engineering Design Approval.
The Applicant shall pay to BLW, the Final Plan Sealing fee, relating to the number of lots detailed in the plan to be submitted for 'sealing', as listed in the Fee Schedule posted at the time of the plan submission. Payment shall be made prior to the issue of the BLW 'Certificate of Consent For Registration of Legal Document' (required by Council prior to 'sealing' a Final Plan of subdivision).
15 DEVELOPER CHARGES (HEADWORKS) (SUBDIVISION)
Prior to the issuing of a Certificate of Consent for Registration of Legal Document to the West Tamar Council, the Developer shall pay to Ben Lomond Water Developer Charges, in accordance with Ben Lomond Water's Developer Charges Pricing Policy,
· for water infrastructure - $935.67 / new lot, indexed quarterly at the Consumer Price Index, All Groups Hobart rate from June 2011 until the date it is paid to Ben Lomond Water and
· for sewerage infrastructure - $1845.79 / new lot, indexed quarterly at the Consumer Price Index, All Groups Hobart rate from June 2011 until the date it is paid to Ben Lomond Water."
In practical terms, the omission of these conditions resulted in obligations not being imposed on the developer to pay the applicant thousands of dollars by way of contributions towards infrastructure costs and charges for considering its applications, designs and plans. The delegates gave the applicant no warning that they were thinking of not imposing conditions 3, 14 and 15. The applicant contends that, by failing to notify it that they were considering not imposing those three conditions, they breached a duty to afford natural justice to it. The Attorney-General contends that there was no denial of natural justice; that the applicant is not even a "person aggrieved" by the delegates' decision for the purposes of the Judicial Review Act; and that it therefore was not entitled to make this application.
When the Commission holds a hearing, it must observe the rules of natural justice: Tasmanian Planning Commission Act 1997, s10(1)(b)(v). Before it begins a hearing, it must give reasonable notice of that hearing in at least two daily Tasmanian newspapers, including one which circulates in the region in which the hearing is to be held, stating the subject of the hearing and its time and place: s10(2). The Commission and its delegates are required to comply with the rules of natural justice at all times before the making of a decision, and not just during a hearing or in relation to a hearing: R v Resource Planning and Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69 at par[50].
Although the applicant was asked, in the delegate's letter of 10 August 2011, to supply "its required permit conditions", it had no legal right to "require" any particular permit conditions to be imposed. There is a provision in the Water and Sewerage Industry Act 2008 which, when it applies, compels a planning authority to include in a discretionary development permit or a combined permit "any condition that a relevant regulated entity requires": s56Q(2)(a). The applicant is a "regulated entity" as defined in that Act. But that provision did not apply to the developer's application. That application was made prior to 1 July 2009. That was the date on which Part 7 of the Water and Sewerage Legislation (Miscellaneous Amendments) Act 2009 came into force. See s2(2) of that Act. By virtue of s18(2) of that Act, Subdivision 3 of Division 2A of Part 4 of the Water and Sewerage Industry Act 2008, which included s56Q, did not apply to the developer's application. Instead, only s18(3) of the 2009 Act applied. That subsection reads as follows:
"(3) A planning authority must, before determining a relevant application made to it, consult with a regulated entity to whom, but for subsection (2), a notice in relation to the application would be required to be given under section 56O of the Water and Sewerage Industry Act 2008."
That subsection obliged the West Tamar Council, as the planning authority, to consult with the applicant, which was the relevant "regulated entity". The council undertook no such consultation. However its failure to do what s18(3) required is completely inconsequential.
In F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, the House of Lords was concerned with a dispute about the Monopolies Commission having changed its procedures without giving a number of drug companies an opportunity to put their case as to how prices should be fixed. At 369, Lord Diplock said the following:
"Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Assuming (without deciding) that the Commission's duty to comply with the rules of natural justice obliged it to afford the applicant an opportunity to make submissions as to what permit conditions should be imposed, in my view it does not follow that, after such submissions had been made, there was a continuing obligation on the part of the Commission to disclose to the applicant what it was minded to decide. In my view its duties to afford natural justice or procedural fairness simply could not extend that far.
In this case, the letter of 10 August 2011 invited the applicant not just to make submissions, but to supply "its required permit conditions", despite the fact that it had no statutory power to require any particular permit conditions to be imposed. However I do not think that the use of the word "required" in the delegate's letter resulted in the Commission having a duty that would not otherwise have existed. This is not a case where the applicant might be regarded as having had a legitimate expectation of being given a further opportunity to be heard if the Commission or its delegates thought any of its proposed permit conditions to be undesirable. As Gibbs CJ said in Kioa v West (1985) 159 CLR 550 at 563, "The expression 'legitimate expectation' means 'reasonable expectation'." Given that the applicant was a public authority with no statutory power to require permit conditions to be imposed in permits applied for before 1 July 2009, there was no reasonable basis for it to expect to be given a further opportunity to be heard if the delegates were not minded to do everything it wanted them to do.
There is no need for me to consider the question whether, for the purposes of the Judicial Review Act, the applicant is a "person aggrieved" by the decision under review. Whether it is or not, this application must fail because there was no breach of any obligation to afford it natural justice or procedural fairness.
For these reasons, the application is dismissed.
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