Timber World Pty Ltd v Meander Valley Council - [2020] TASSC 27

[2020] TASSC 27

COURT: SUPREME COURT OF TASMANIA

CITATION: Timber World Pty Ltd v Meander Valley Council [2020] TASSC 27

PARTIES:  TIMBER WORLD PTY LTD
  v
  MEANDER VALLEY COUNCIL

FILE NO: 2312/2019
DECISION

APPEALED FROM: Timber World Pty Ltd v Meander Valley Council

and Teen Challenge Inc [2019] TASRMPAT 12

DELIVERED ON:  26 June 2020
DELIVERED AT:  Hobart
HEARING DATE:  29 April 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Validity of provision in planning scheme – Uncertainty.

King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184; Richard Bejah Insurance and Financial Services Pty Ltd v Maning [2002] TASSC 36, 123 LGERA 349, distinguished.
Aust Dig Environment and Planning [52]

REPRESENTATION:

Counsel:
             Appellant:  N J Tweedie SC and A Beeson
             Respondent:  S B McElwaine SC
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent:  Shaun McElwaine + Associates

Judgment Number: [2020] TASSC 27
Number of paragraphs: 26

Serial No 27/2020
File No 23/12/2019

TIMBER WORLD PTY LTD v MEANDER VALLEY COUNCIL

REASONS FOR JUDGMENT BLOW CJ

26 June 2020

This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal concerning a proposal by an association named Teen Challenge Inc to establish a rehabilitation centre on the site of a former primary school in the village of Meander. The Meander Valley Council approved a development application and granted a permit for the proposal. Timber World Pty Ltd, the appellant in the present proceedings, appealed to the Tribunal but was unsuccessful. The appellant pursued only one ground of appeal, contending that the proposal did not comply with standards in the Meander Valley Interim Planning Scheme 2013 relating to bushfire-prone areas. The Tribunal, constituted by its Chairperson, Ms M Duvnjak and two other members, Mr M Ball and Mr M Kitchell, concluded that the critical provision in the planning scheme was ultra vires, and dismissed the appeal: Timber World Pty Ltd v Meander Valley Council and Teen Challenge Inc [2019] TASRMPAT 12.
Timber World has appealed to this Court pursuant to s 25 of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"). An appeal under that section is limited to questions of law. The appellant contends that the Tribunal made errors of law in relation to the ultra vires issue, and further errors of law relating to the way it disposed of the appeal. Teen Challenge Inc chose not to participate in these proceedings. Its solicitors filed a notice of submission.
On 17 February 2015 the Minister for Planning and Local Government, Mr P C Gutwein, issued a legislative instrument named "Interim Planning Directive No 1 – Bushfire-Prone Areas Code". The Bushfire-Prone Areas Code contained in that directive became part of the planning scheme. That Code suspended and replaced the provisions of an earlier instrument called "Planning Directive No 5 – Bushfire-Prone Areas Code" which had previously been part of…

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: [2020] TASSC 27
Decision Date: 26 June 2020

CaseChat Overview and Summary

The dispute between Timber World Pty Ltd and the Meander Valley Council arose from the application of a provision within the council's planning scheme that was deemed ambiguous. The plaintiff, Timber World, challenged the validity of this provision, arguing that its vagueness rendered it ineffective and therefore unenforceable. The case was heard in the Supreme Court of Tasmania, where the court had to determine whether the provision in question was so uncertain that it could not be properly applied.

The primary legal issue the court faced was whether the ambiguous provision within the planning scheme was valid and enforceable. This involved interpreting the nature and extent of the uncertainty, and assessing whether it was so significant that it rendered the provision incapable of being understood and applied. The court also had to consider whether this uncertainty contravened the statutory framework governing planning schemes in Tasmania, particularly the requirement for clarity and certainty in such regulatory instruments.

In its decision, the court examined the specific wording of the provision and the context in which it was used. It concluded that the provision was indeed too uncertain to be applied effectively, thereby rendering it invalid. The court held that the requirement for clarity and precision in planning instruments is fundamental to ensure that all parties can understand and comply with the regulations. The court's reasoning was grounded in the statutory mandate for planning schemes to be clear and unambiguous, and it found that the provision in question failed to meet this standard. As a result, the court ruled that the provision was invalid and unenforceable.

The court's final order declared the provision in the Meander Valley Council's planning scheme to be invalid due to its uncertainty. This decision provided clarity to the parties involved and reinforced the importance of precision in regulatory instruments.

Orders