West Tamar Council v Resource Management - [2015] TASFC 12

[2015] TASFC 12

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: West Tamar Council v Resource Management

and Planning Appeal Tribunal [2015] TASFC 12

PARTIES:  WEST TAMAR COUNCIL
  v
  RESOURCE MANAGEMENT
  AND PLANNING APPEAL TRIBUNAL
  MOON, Ann

FILE NO: 1152/2015
JUDGMENT

APPEALED FROM: West Tamar Council v Resource Management

and Planning Appeal Tribunal [2015] TASSC 32

DELIVERED ON:  30 September 2015
HEARING DATE:  26 August 2015
JUDGMENT OF:  Porter, Estcourt and Pearce JJ

CATCHWORDS:

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal – Powers and duties on appeal – In determining an appeal Tribunal may exercise all powers that are conferred by legislation on the planning authority – Planning authority able to grant a permit on condition that a planning agreement be entered into with the authority – Tribunal granted permit on condition that an agreement be entered into with the planning authority when the authority did not consent – Tribunal not empowered to do so.

Aust Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine SC
             Respondents:  (Submitted to the Court's jurisdiction)
             Attorney-General
             as amicus curiae  M E O'Farrell SC S-G
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             First Respondent:   Acting Director of Public Prosecutions
             Second respondent   Don Armstrong
             Attorney-General  Acting Director of Public Prosecutions

Judgment Number: [2015] TASFC 12
Number of paragraphs: 57

Serial No 12/2015
File No 1152/2015

WEST TAMAR COUNCIL v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL and ANN MOON

REASONS FOR JUDGMENT FULL COURT

PORTER J
ESTCOURT J
PEARCE J
30 September 2015

Orders of the Court

The appeal is allowed.

The order of 23 July 2015 dismissing the appellant's appeal is set aside, and the appeal allowed.

The matter is remitted to the Resource Management and Planning Appeal Tribunal for determination in accordance with the law.

Serial No 12/2015
File No 1152/2015

WEST TAMAR COUNCIL v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL and ANN MOON

REASONS FOR JUDGMENT FULL COURT

PORTER J
30 September 2015

Introduction

The question to be decided in this appeal is whether the Resource Management and Planning Appeal Tribunal has the power, when determining an appeal to it, to make it a condition of a permit that a planning authority enter into an agreement under Pt 5 of the Land Use Planning and Approvals Act 1993 (the LUPA Act), when the planning authority does not consent.
The background and the critical parts of the primary judge's reasons are set out in the reasons for judgment of Estcourt J, which I have had the advantage of reading. There is no need to repeat any of that. I agree with his Honour's observations about the Tribunal's approach. I also agree that the appeal should be allowed.
In my view, in order to to answer the question posed, it is desirable to analyse the source and nature of the Tribunal's powers. Estcourt J has set out most of the relevant legislation, but for…

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: [2015] TASFC 12
Decision Date: 30 September 2015

CaseChat Overview and Summary

The Supreme Court of Tasmania, constituted by Porter, Estcourt and Pearce JJ, considered an appeal by the West Tamar Council against a decision of the Resource Management and Planning Appeal Tribunal. The dispute concerned the Tribunal's power to impose conditions on a planning permit, specifically its ability to require a planning agreement to be entered into with the planning authority when that authority had not consented to such an agreement.

The central legal issue before the Supreme Court was whether the Resource Management and Planning Appeal Tribunal, when exercising the powers of a planning authority on appeal, could lawfully impose a condition requiring a planning agreement to be entered into with the planning authority, even if the planning authority itself did not consent to that agreement. This involved an interpretation of the Tribunal's powers under the relevant legislation, particularly its capacity to grant a permit on conditions that mirrored those available to a planning authority.

The Court reasoned that while the Tribunal could exercise all powers conferred by legislation on a planning authority, this did not extend to compelling a planning authority to enter into a planning agreement against its will. The power to grant a permit on condition that a planning agreement be entered into presupposes the consent of the planning authority to that agreement. As the planning authority had not consented, the Tribunal lacked the power to impose such a condition. Consequently, the Tribunal had erred in law by purporting to do so.

The Supreme Court allowed the appeal, setting aside the Tribunal's order of 23 July 2015. The matter was remitted to the Resource Management and Planning Appeal Tribunal for determination in accordance with the law.

Orders

Orders of the court

1. The appeal is allowed.

2. The order of 23 July 2015 dismissing the appellant's appeal is set aside, and the appeal allowed.

3. The matter is remitted to the Resource Management and Planning Appeal Tribunal for determination in accordance with the law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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