The Queen v the Commissioner for Town and Country Planning Ex Parte McDermott

[1989] TASSC 38

Serial No 34/1989
List "A”

CITATION:The Queen v the Commissioner for Town and Country Planning Ex Parte McDermott [1989] TASSC 38; A34/1989

PARTIES:  THE QUEEN
  v
  THE COMMISSIONER FOR TOWN AND COUNTRY   PLANNING
  McDERMOTT, A

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 104/1988
DELIVERED ON:  25 August 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Cox, Wright and Crawford JJ

Judgment Number:  A34/1989
Number of paragraphs:  18

Serial No 34/1989
List "A"
File No FCA 104/1988

THE QUEEN v THE COMMISSIONER FOR TOWN AND COUNTRY PLANNING EX PARTE ANTHONY McDERMOTT

REASONS FOR JUDGMENT  FULL COURT

COX J
WRIGHT J
CRAWFORD J
25 August 1989

Order of the court:

Appeal dismissed.

Serial No 34/1989
List "A"
File No FCA 104/1988

THE QUEEN v THE COMMISSIONER FOR TOWN AND COUNTRY PLANNING EX PARTE ANTHONY McDERMOTT

REASONS FOR JUDGMENT  FULL COURT

COX J
25 August 1989

1. I agree with the reasons of Wright J. which I have had the advantage of reading. The appeal in my view should be dismissed.

   File No FCA 104/1988

THE QUEEN v THE COMMISSIONER FOR TOWN AND COUNTRY PLANNING EX PARTE ANTHONY McDERMOTT

REASONS FOR JUDGMENT  FULL COURT

WRIGHT J
25 August 1989

1. By an historical analysis of Town and Country Planning legislation in this State, counsel for the appellant seeks to persuade this court that s757(10) of the Local Government Act 1962 is otiose or has been impliedly repealed by subsequent amendments to the Act. He says that those amendments have broadened the matters which may be dealt with in Town and Country Planning schemes to include subdivisions and have also increased the scope available to the Planning Appeal Board (formerly the Interim Planning Appeal Board) to review decisions by Municipal Councils in respect of subdivisions and other planning matters. He says that this has created such an entirely new review structure that the Commissioner's power to veto a subdivision proposal under s757 has been effectively ousted. However, as pointed out by counsel for the respondent, much of the appellant's argument is founded upon an incorrect premise.

1. The appeal procedures provided by s733A and following apply only in respect of planning approvals which may or may not have been given by a corporation "in respect of the development of any land". In this context "development" is given a restricted meaning by s733A which provides that:

"'Development' means –

(a)the carrying out of building engineering mining or other operations in, on, over, or under the land;

(b)the demolition, in whole or in part, of any building or other works on the land;

(c)the making of any material change in the use of the land or any buildings or works thereon; or

(d)the carrying out of any procedure or the doing of any other thing that, by virtue of any provision in a planning scheme or interim order, is deemed to be development for the purposes of that planning scheme or interim order."

1. Under s733A(d) it is plain that an interim order could deem a proposal plan to be a development, but the interim order the subject of this present litigation, contains no such deeming provision. It will be seen therefore that the process of approval or rejection of a proposal plan provided by s757 does not fall within the definition of "development" for the purpose of these proceedings, and consequently the appellant's argument that the Commissioner for Town and Country Planning's powers of control of proposal plans have been diminished or even excluded by subsequent amendments to the Act, has no validity in my opinion. Merely because a disappointed subdivider has no right of appeal against the Commissioner's refusal to approve a proposal plan is no reason for coming to a contrary conclusion.

1. The appellant's second ground of appeal is that the learned trial judge was in error when he found that the Commissioner for Town and Country Planning took account of three factors when considering the appellant's proposal plan. The factors referred to are as follows:

(a)The suitability of the appellant's land for low density residential development.

(b)The lack of viability of the appellant's property for rural purposes.

(c)The fact that a planning approval had been obtained under Part XVIII of the Act.

1. To start with factor (c), I think it is plain that whether or not the learned trial judge made a finding of this kind, such a finding could have little or no relevance to the Commissioner for Town and Country Planning in the exercise of his statutory duties. Assuming for the moment that Mr Holt is correct when he designates the dispensation as a "planning approval" it is clear that for the matter to get before the Commissioner at all there must be a "planning approval" of the kind relied on by the appellant, that is such an "approval" is a necessary preliminary step to his becoming seized of the matter. How he could give any weight to the existence of an "approval" of that kind escapes me. This is an entirely different situation from that which existed in Spackman v Secretary of State for the Environment & Anor [1977] 1 All ER 257 which was relied on by the appellant. If a determination of the kind now in issue is to be upset by the court, it must be shown that the Commissioner's failure to take it into account might be expected to have had a material effect upon his decision.

(See The Minister for Aboriginal Affairs v Peko–Wallsend Ltd (1986) 66 ALR 299).

1. In respect of factor (b), I agree with counsel for the respondent that it was unnecessary for the Commissioner to actually determine whether the land was viable for rural purposes. It is plain from the evidence that he did actually take cognizance of the fact that viability for rural purposes was a relevant consideration for him to take into account. It is plain from the decision that he reached that he concluded that the viability or otherwise of the property was not either of itself, or taken in conjunction with other favourable factors, of sufficient weight to displace his conviction that the proposed subdivision was inherently undesirable and should not be approved. (See paragraph 12 of his affidavit sworn 9 June 1988) and his cross–examination at p118 (lines 14–24) of the transcript.

1. As to factor (a), I think it is plain that the Commissioner considered this aspect of the problem before him and likewise did not consider the general suitability of the land for the proposed purpose as an appropriate basis for approving the subdivision.

1. The appellant's third ground of appeal was that the learned trial judge erred in finding or holding that it was reasonably open to the Commissioner for Town and Country Planning to consider that the principles of town planning required the rejection of the proposal plan in that the finding was against the evidence, or alternatively against the weight of the evidence. In support of this contention, counsel for the appellant referred us to the evidence of Messrs Edgar Roy England, John Walter Cohen and John Edward Siddel, three experts in town planning, all of whom supported the proposal plan on town planning principles.

However, the argument advanced overlooks the fact that the Commissioner for Town and Country Planning is himself an expert in this field and secures appointment to his statutory office only on the basis that he has such an expertise. It also overlooks the support accorded to the Commissioner's decision by the evidence of Mr McNeil.

1. Town and country planning principles are frequently fluid, nebulous and intangible and their scope and meaning receives differing weight and interpretation from different individuals. As Mr England said in his evidence at p91 of the transcript, "... everybody has got their own ideas of what the principles are", and as Mr Cohen said at p102, "I have never seen them enunciated as a series of commandments". It appears to me that there is no sound basis upon which this Court can say that the Commissioner gave wrong emphasis to the material before him or by failing to consider appropriate criteria, reached an erroneous conclusion to reject the proposal plan.

1. The brevity of my reasons should not be taken as a reflection upon the detailed and helpful submissions made by Mr Holt on behalf of the appellant.

1. In my opinion, the appeal should be dismissed.

   File No FCA 104/1988

THE QUEEN v THE COMMISSIONER FOR TOWN AND COUNTRY PLANNING EX PARTE ANTHONY McDERMOTT

REASONS FOR JUDGMENT  FULL COURT

CRAWFORD J
25 August 1989

1. As to Ground 1 in the Notice of Appeal I agree with the reasons for judgment of Wright J. However I wish to add some observations of my own.

1. The appellant made application to the corporation pursuant to s464 of the Local Government Act 1962 for approval of a scheme of a building estate, and submitted a proposal plan containing the proposed subdivision with his application. Subsection (3) of s464 provides that upon consideration of certain reports but "(s)ubject to Part XVIII" the corporation may grant or refuse the application. Part XVIII contains s757. That section requires a corporation to refer to the Commissioner for Town and Country Planning each proposal plan submitted to it under s464. By subsection (7) the Commissioner may grant or refuse consent to the corporation giving its approval to the plan and by subsection (8) "the Commissioner shall exercise his power under subsection (7) in such manner as he considers the principles of town planning require". Parliament's intention is clear. No subdivision constituting a building estate shall be approved by a corporation unless the Commissioner has considered the matter and has had an opportunity to refuse his consent to the proposal on town planning principles.

1. I can find nothing in any of the amendments to the Local Government Act 1962 which have been referred to by counsel, from which I can deduce that Parliament has evinced an intention that proposals for building estates need no longer be referred to or considered by the Commissioner.

1. The word "development" when used in s733A and following sections, does not include the making of a subdivision. Even if it did, a proposal for subdivision might be given planning approval by a corporation without it ever being considered by either the Commissioner or the Planning Appeal Board. Assuming, for the purposes of discussion, that a scheme of building estate does fall within the meaning of the word "development", I would still hold that Parliament has not evinced an intention that s757 shall no longer apply in such circumstances. Its express provisions for consent or refusal by the Commissioner based on his consideration of the principles of town planning remain in the Act and are not in conflict with any other provisions.

1. I agree with the reasons for judgment of Wright J. that Ground 2 of the appeal has not been made out. I also agree with what Neasey J. said in relation to this aspect of the case (except for his obvious error in referring to the Planning Appeal Board as the Interim Planning Appeal Board). I also agree with Wright J. in relation to Ground 3, and adopt what was said by Neasey J. after he had referred to the conflicting opinions of town planning experts who gave evidence:–

"… it appears to me on the evidence presented that the Commissioner's reasons for refusing to grant the applications are at least as reasonably arguable as theirs. That is to say, there is no basis in the evidence for suggesting that the view formed by the Commissioner, on which he based his decision, was not reasonably open to him".

1. Accordingly, it is my view that the appeal should be dismissed.