Ward v Hobart City Council
[2012] TASSC 57
•13 September 2012
[2012] TASSC 57
COURT: SUPREME COURT OF TASMANIA
CITATION: Ward v Hobart City Council [2012] TASSC 57
PARTIES: WARD, Jennifer
v
HOBART CITY COUNCIL
FILE NO/S: 149/2012
DELIVERED ON: 13 September 2012
DELIVERED AT: Hobart
HEARING DATE: 4 September 2012
JUDGMENT OF: Evans J
CATCHWORDS:
Environment and Planning – Building control – Council consent and approval – Consent, approvals and permits – Conditions – Duration of condition.
Aust Dig Environment and Planning [318 – 323]
REPRESENTATION:
Counsel:
Applicant: T J Williams
Respondent: P J Ikedife
Solicitors:
Applicant: Gunson Williams
Respondent: Simmons Wolfhagen
Judgment Number: [2012] TASSC 57
Number of paragraphs: 23
Serial No 57/2012
File No 149/2012
JENNIFER WARD v HOBART CITY COUNCIL
REASONS FOR JUDGMENT EVANS J
13 September 2012
In September or October 2010 the applicant, Jennifer Ward, removed a horse chestnut tree on land owned by her and her husband ("the Wards") at 11A (also known as 13) Beach Road, Sandy Bay ("the land"). The proceedings that are the subject of this notice to review relate to her prosecution for this acknowledged conduct.
It is not suggested other than that by removing the tree the applicant breached the Land Use Planning and Approvals Act 1993 ("LUPA"), s63(2)(a), in that she undertook a development in contravention of the City of Hobart Planning Scheme 1982 ("the Scheme"). However, she was not prosecuted for that breach. Instead, she was prosecuted on the ground that by doing as she did, she contravened subs(2)(c) of that section. Her prosecution was founded on the proposition that her removal of the tree breached a condition or restriction of a permit imposed by the Council.
The relevant provisions of LUPA are as follows:
"63(2) A person must not use land in a way, or undertake development or do any other act, that –
(a)is contrary to a State Policy, a planning scheme or special planning order; or
…
(c)constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme or order or a determination of the Appeal Tribunal; or …"
The complaint against the applicant was in the following terms:
"Charge:Undertaking a development in breach of a condition or restriction of a permit
Breach of: Section 63(2)(c) Land Use Planning and Approvals Act 1993
Particulars: On a date between 26 September 2010 and 26 October 2010 at the property situate and known as 13 Beach Road, Sandy Bay in Tasmania within the planning area covered by the City of Hobart Planning Scheme 1982 the Defendant undertook development in a way that constituted a breach of a condition or restriction of a permit imposed by a planning authority, namely condition 1 of a planning permit issued on or about 23 December 2003 following a decision of the Resource Management and Planning Appeal Tribunal by removing or destroying, or authorizing the removal or destruction of a chestnut tree when condition 1 required development to be in accordance with the approved plans and at least one of the approved plans showed the chestnut tree to be retained."
The applicant was convicted by Magistrate C P Webster. She has appealed that conviction by way of a notice to review.
As argued before the learned Magistrate, the essence of the charge against the applicant was that by removing the tree she breached a condition in a planning permit that the tree be retained. The somewhat confusing manner in which the particulars to the complaint are drawn tends to obscure the essence of the charge. They refer to the applicant undertaking a development, a phrase more appropriate to a charge of breaching s63(2)(a). The development that was the subject of the permit was the construction of a house. That development was completed over three years before the removal of the tree. However the particulars conclude with the assertion that "condition 1 [of the permit] required development to be in accordance with the approved plans and at least one of the approved plans showed the chestnut tree to be retained". This suggests that it was asserted that the tree was removed in the course of the development, which was not the case. The obscurity of the particulars was the subject of comment in the course of the hearing before the learned magistrate, and may have contributed to his Honour's failure to explicitly address one of the issues raised before him, that is, whether the asserted condition was in force over three years after the completion of the construction of a house.
Background
On 23 December 2003, the Wards obtained a planning permit that allowed them to develop the land for the purposes of a house. Prior to their development of the land, it had been vacant.
The permit that they obtained was relevantly as follows:
"THE PERMIT ALLOWS :
The development of the land for the purpose of house subject to the following conditions and restrictions.
THE FOLLOWING CONDITIONS AND RESTRICTIONS APPLY TO THIS PERMIT :
1 The use and development shall be substantially in accordance with development application no PLN-03-01733-01 and the drawings submitted and dated 24 June 2003 and 14 August 2003 except where modified below.
Reason for condition
To clarify the scope of the permit.
2The following management of the area around the Horse Chestnut Tree is to be followed:
(i)the bed of ornamental plants under the drip line is to be removed, ideally by the use of herbicides to avoid root damage;
(ii)soil moisture deficiency is to be corrected by providing adequate irrigation to penetrate the subsoil level;
(iii)prior to any commencement of construction work, the area defined by two thirds of the diameter of the drip line of the tree is to be mulched to a depth of 200mm with a suitable grade of shredded pine bark. An area slightly greater than the mulched area must be roped off and no machinery or personnel allowed to enter; and
(iv)at the time of foundation excavation, a suitably qualified horticulturalist is to be present to treat any root tissue that is unearthed or damaged.
(v)The final selection of the footing design is to be determined in consultation with the Council's Technical Officer – Arboriculture prior to the footings being commenced.
Reason for condition
To ensure the Horse Chestnut tree is retained.
3 The proposed rear boundary fence is to be of a design to minimise the degree of excavation required in the vicinity of the Horse Chestnut Tree. A detailed plan is to be submitted to the satisfaction of Council's Director Development and Environmental Services, prior to the issue of final building approval.
Reason for condition
To ensure the limitation of damage to the Horse Chestnut Tree resulting from constructions works."
Two drawings dated 24 June 2003 that were submitted with the development application contained a circle indicating the position on the land of the horse chestnut tree, together with the notation: "Existing chestnut tree to be retained".
The Wards constructed their house in compliance with the planning permit, and in July 2007, certificates as to the completion and occupancy of the house were issued referrable to the same. Mr Ian Stanley, the Council's Manager of Development Appraisal, gave evidence that this was when the development of the building was finished.
Approval was necessary for the removal of the tree
Consistent with the Scheme 1.5.1 and the definitions given to "Development" and "Works" in 1.7.1, the tree could not be removed without Council approval. The Scheme specified two bases upon which the Council had a discretion to refuse or permit the removal of the tree. The first basis was SchF, 6.1(i), which applied as the land was adjacent to property listed in the Heritage Register. In this regard, I reject the submission of Ms Ikedife, counsel for the Council, that SchF had no application as it was, in effect, subservient to SchI which deals with the clearing of land. No inconsistency or the like between the provisions of these schedules provides any basis for concluding that they cannot stand together, and there is no provision in the Scheme to the effect that, notwithstanding that the terms of SchF are wide enough to encompass the removal of trees, they should be construed otherwise. The second basis was SchI, 1.2(b), which applied as the land contained a tree that "has been required to be retained as a condition of … a planning permit that … has already been implemented".
The applicant did not obtain the Council's approval for the removal of the tree.
The issues
Before the learned Magistrate, Mr Williams, counsel for the applicant, contended firstly that it was not a condition of the planning permit that the tree be retained; and secondly, that if such a condition was a term of the permit it had been satisfied and it was no longer in force for the purposes of a prosecution under s63(2)(c). The second of these submissions put the life of the condition in issue.
Insofar as two of the drawings submitted with the development application contained the notation: "Existing chestnut tree to be retained", it is manifest that the proposed development did not involve removing the tree. The learned Magistrate found that it was a condition of the planning permit that the tree be retained. This finding was plainly open. Condition 1 of the permit in substance specified that the development be substantially in accordance with the drawings submitted with the development application. As two drawings included the notation mentioned, it can be inferred that it was a condition of Council's approval of the development that the tree be retained.
In his written reasons for decision, the learned magistrate appropriately summarised the facts and correctly distinguished evidence that had no bearing on his decision. As to the issues for his determination, his Honour went on to say:
"9 …
The defence raised two arguments namely:-
1)That the defendant by the removal of the tree did not undertake development in a way that constituted a breach of condition or restriction of a permit because at the time the tree was removed, development had been completed as a certificate of completion had been issued. That is Mrs Ward's actions constituted (if anything) a breach of a condition which required use to be in accordance with the approved plans not the offence for which she has been charged. Mr Williams argued that the concepts of “use” and “development” were completely different concepts.
2)That it was not a condition of the permit that the tree be retained. That the requirements to retain the tree (if that is what was intended) is not a specific condition of the permit.
10 Ms Ikedife, the Council's Counsel rebuts the arguments of the defendants as follows:-
1)The removal of the tree is 'development' and that is why it is appropriate to use the word 'development' in the charge. 'Development' is defined s3(1) of the Act to include
'(e) the construction or carrying out of works'
'Works' is defined to include
'(a) any change to the natural or existing conditions on topography of land including the removal, destruction on lopping of trees and the removal of vegetation or topsoil…….'
2)It is a clear condition of the permit that the tree be retained for the following reasons:-
a)The plan shows the tree in the garden of the property and marks it 'existing chestnut tree to be retained'. The permit condition 1 requires the use and development to be substantially in accordance with that drawing and therefore required retention of the tree.
b)Other conditions of the permit exist for the purpose of ensuring the retention of the tree for example condition 2 states at the end for the condition 'reasons for conditions: To ensure that the horse chestnut tree is retained.
c)The process in the Planning Appeals Tribunal and the conditions imposed by that Tribunal on the permit and the reasons give[n] by the Tribunal indicate that the purpose of the conditions were to preserve the tree.
d)The RMPAT decision or T & K Berger –v- Hobart City Council and S Mehrab – Khani [2010] TASRMPAT 243 supports the interpretation proposed by the complainant. (Although that decision does not bind a Magistrate)
11 I prefer the submissions of the complainant and find:-
1)That it was a condition of the planning permit in respect of the land owned by the defendant that the tree be retained
2) That Mrs Ward caused the tree to be removed.
3)The removal of the tree was a development that constituted a breach of a condition of a planning permit issued on or about the 23 December 2003
I find the complaint proved."
The applicant's grounds of appeal include a contention that the learned magistrate erred in determining that he could convict on the basis that he preferred the submissions advanced on behalf of the complainant. I reject this contention insofar as it relates to his Honour's finding in par 11 (1) of his decision, that it was a condition of the planning permit that the tree be retained. In pars 9 (2) and 10 (2), his Honour summarised the conflicting submissions made to him with regard to whether the permit contained such a condition, and, in my view, it was sufficient for his Honour to state as he did with regard to this conflict, that he preferred the submission of the complainant. However, his Honour did not explicitly address the further issue raised on behalf of the appellant as to the life of the condition, that is the proposition that it was spent by the time the tree was removed, as the development that was the subject of the permit had been completed over three years previously. This issue was clearly identified in the course of counsels' closing submissions to his Honour. Ms Ikedife categorised it as a contention: "that the permit condition for the retention of the horse-chestnut tree relates only to the development of the property and that development, ie, the construction work having been completed the permit condition requiring the retention of the horse-chestnut tree is no longer either valid or enforceable".
With regard to this issue, Mr Williams said:
"Now the point is very simple … the development is finished, it's over, it finished when the certificate of completion issued, she complied with the requirement in relation to development, and she can't possibly be guilty of what she's been charged with."
Whilst his Honour, in substance, identified this issue in the first sentence of par 9 (1) of his decision, he did not thereafter address it.
The alternative constructions that could be given to the condition, that bear on its life, are many and varied. Was it a condition that the tree be retained:
· during the development; or
· for so long as the tree did not constitute a danger; or
· for so long as the tree lived; or
· for ever?
As I have said, as two of the drawings submitted with the development application contained the notation: "Existing chestnut tree to be retained", it could be inferred that it was a condition of Council's approval of the development that the tree be retained. However, conditions 2 and 3 of the planning permit went further. They detailed measures that had to be taken during the course of the construction of the home to sustain the tree and protect it from damage. No condition was imposed as to sustaining the tree or protecting it from damage after the construction was complete. This is consistent with an intention on the part of the Council that, following the completion of the construction, the tree would not be the subject of conditions contained in the planning permit, but would be subject to the generally applicable provisions of the Scheme to which I have referred in par[11] of these reasons, with the result that the tree could not be removed without the approval of the Council. Such an approach was reasonable and logical as it retained for the Council the sort of flexibility that was desirable in the event that for any reason it became appropriate at some future time to approve the removal of the tree.
In one sense it can be said that for the Council to have imposed a condition, with regard to the tree, that operated beyond the construction of the home, would have been otiose, save insofar as the condition imposed requirements that differed from the provisions of the Scheme that applied to the tree in any event. For this reason, and bearing in mind that a breach of a condition of a planning permit can be a basis for a prosecution, it is to be expected that if the Council had intended to impose conditions with regard to the tree that operated after the construction of the house, and differed from those that applied in the ordinary course, it would have clearly so specified and would not have left this to be inferred from a notation on two drawings. If, for example, the Council had intended to impose a condition that the tree be retained indefinitely, regardless of whether it was dead or a danger, and that this condition should run with the land, then it is to be expected that this would have been clearly specified on the face of the planning permit.
In the absence of any indication in the planning permit that the condition that the tree be retained and the related conditions as to the sustenance and protection of the tree should operate after the construction of the house, I am unable to infer such an intention. That being so, whilst it is clear that the applicant's conduct contravened s63(2)(a), it did not, as found by the learned magistrate, contravene s63(2)(c).
The applicant's conviction is quashed.
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