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 the sake of convenience, I will summarise it here, starting with the LUPA Act provisions about Pt 5 agreements.
· Section 58A of the LUPA Act provides that a permit granted by a planning authority may include a condition that an agreement is required to be entered into in respect of a use or development.
· Section 3(1) of the LUPA Act defines "agreement" as meaning an agreement entered into under Pt 5 of that Act.
· Part 5 is headed "Agreements".
· Within Pt 5, s 71(1) provides that a planning authority may enter into an agreement with an owner of land in the area covered by a planning scheme or a special planning order. It may do so on its own behalf or jointly with any other person: s 71(2).
· A Pt 5 agreement must be under seal and binds the owner to the covenant specified in the agreement: s 72(2).
· An agreement may include a provision for a payment or other contribution for infrastructure to be made by any party to the agreement: s 73A.
· A planning authority may lodge with the Recorder of Titles an executed copy of an agreement, the effect of which is to ensure that the burden of any covenant in the agreement runs with the land to which the agreement relates: ss 78 and 79.
· Registration makes the agreement enforceable between the parties to it, and any person deriving title under such party: s 79(b).
The Tribunal's powers in relation to appeals provided for by the LUPA Act are contained both in that Act, and in the Resource Management and Planning Appeal Tribunal Act 1993 (the RMPAT Act).
· Section 61 of the LUPA Act enables appeals to the Tribunal against the decision of a planning authority to grant a permit, to grant a permit subject to conditions or restrictions, to refuse to grant a permit and to cancel a permit.
· Section 62(1) of the LUPA Act relevantly provides that after hearing an appeal, the Tribunal may in addition to its powers under the RMPAT Act:
"(c) in the case of an appeal against a grant of a permit, a refusal to grant a permit or a grant of a permit subject to conditions or restrictions —
(i) direct the planning authority to grant the permit; or
(ii) direct the planning authority to grant the permit and direct the planning authority that the permit must or must not contain any specified conditions; or
(iii) direct the planning authority not to grant a permit."
· Section 23(1) of the the RMPAT Act provides that for the purpose of determining an appeal, the Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal.
· Section 23(2) requires the Tribunal to make a decision in writing affirming the decision, varying the decision or setting the decision aside, and making a decision in substitution, or remitting the matter for reconsideration.
· Section 23(7) provides that the Tribunal's decision in relation to an appeal must be given effect to by the person who is responsible for giving effect to the decision that gave rise to the appeal.

The Tribunal's power

As the Solicitor General noted in argument, the Tribunal's powers are very similar to those of the Commonwealth Administrative Appeals Tribunal (the AAT). Section 23(1) and (2) of the RMPAT Act are in similar terms to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), (the AAT Act). Like the AAT, the Tribunal is said to stand in the place of the original decision-maker, making what it sees to be the correct or preferable decision on the material before it: St Helen's Area Land Care and Coast Care Group Inc v Break O'Day Council (2007) 16 Tas R 109 per Blow J (as he then was), with whom Evans J agreed, at 191 [72]. However, the Tribunal is able to set its own procedures and is entitled to confine the issues to be determined on the appeal: Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99 per Slicer J at [36]. It follows that the body of law referable to the AAT is helpful in examining the source and nature of the Tribunal's powers in any particular instance.
It is true that the LUPA Act and the RMPAT Act are parts of "an integrated resource management system for Tasmania" St Helen's Area Land Care and Coast Care per Crawford J (as he then was) at 181 [32]. With respect to the AAT, the Full Court of the Federal Court has said that the AAT Act and the Act under which the original decision was made (in that case the Taxation Administration Act 1953 (Cth)), have to be read together as far as possible, but that a general power in the AAT Act cannot be used to circumvent express limitations in the other: Commissioner of Taxation v Hornibrook (2006) 156 FCR 313 per Gyles J, with whom Stone J agreed, at 322 [28].
Before looking further at that issue, I will examine the source of the Tribunal's powers by reference to the position of the AAT. In Powell v Administrative Appeals Tribunal (1998) 89 FCR 1, French J (as he then was) had to determine whether the court had jurisdiction in respect of judicial review of a decision of the AAT, where the legislation under which the original decision was made sought to limit the Federal Court's jurisdiction in respect of certain "judicially-reviewable decisions". The question was whether a decision by the AAT reviewing a decision of the Minister was a judicially-reviewable decision. At [12] his Honour noted that the decision-making power of the AAT was to be found in s 43 of the AAT Act, and that required consideration of the character of the decision made by the AAT.
His Honour noted that by s 43(1) of the AAT Act, the AAT may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision, and that by virtue of this provision it is said that the AAT stands in place of the decision-maker whose decision is under review. His Honour continued at 12:
"The [Administrative Appeals] Tribunal is empowered to do what the decision-maker under review could do. The source of its power is s 43(1) albeit it is ambulatory in form. The content of the power it confers is defined by the particular enactment under which the decision to review was made. It may be arguable that where the Tribunal substitutes a new decision for the old it can be said to exercise power under the relevant enactment. I am inclined to the contrary view that even in that case it exercises power conferred by s 43(1) of the Administrative Appeals Tribunal Act and that in doing so it cannot be regarded as exercising power under the other enactment. However that may be, when the Tribunal affirms a decision in my opinion it exercises a power conferred by s 43(1)(a). It does not exercise afresh the power conferred by the enactment under which the decision reviewed was made." [My emphasis.]
In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326, the court (French, O'Loughlin and Whitlam JJ) at 346 said that as was pointed out by French J in Powell, the source of the AAT's power is s 43 of the AAT Act. Their Honours said:
"It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision."
The Full Court seems to have treated French J's tentative view that even in the case of substitution it is not the power under the relevant enactment which is being exercised, as the correct view. In any event, this Tribunal has, as well as the general powers given to it by s 23(1) and (2) of the RMPAT Act, after hearing an appeal under the LUPA Act, the specific powers given to it by s 62(1); the Tribunal directs the planning authority to do certain things. It is also significant that s 23(7) provides that the Tribunal's decision must be given effect to by the decision-maker. This can be contrasted with s 43(6) of the AAT Act by which a decision of a person as varied by the AAT, or a decision made in substitution, shall be deemed to be a decision of the original decision-maker.
It follows that when the Tribunal affirms, varies or sets aside a decision, it is exercising the power given to it under s 23(2), and not any power conferred by the enactment under which the decision was made. In directing a planning authority to grant a permit or not to grant a permit, the Tribunal is exercising the powers in s 62(1)(c)(i) and (iii) of the LUPA Act. In directing a planning authority to grant a permit containing a specified condition, the Tribunal is exercising the power in s 61(1)(c)(ii), and not exercising afresh the power conferred on a planning authority by s 51(3A) and (4)[1]. Like s 43(1) of the AAT Act, when s 23(1) gives to the Tribunal the powers conferred on the original decision-maker, it is to ensure that it is equipped with "an amplitude of powers" which it may exercise if it is convenient and useful to do so "for the purpose of determining an appeal", and where the effectiveness of the fresh order depends on their exercise: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 per Kirby J at 298 [36], per Hayne and Heydon JJ at 315 [100].
[1] Permits to which ss 57 and 58 apply may be subject to, or may be granted subject to, such conditions or restrictions as the planning authority may impose.
As to the Tribunal's direction in this case, the power came from s 62(2)(c)(ii) of the LUPA Act, and in imposing the condition, it purported to rely on s 58A by way of the s 23(1) power. However, even though the source of the power is s 62(1) or s 23(1) or a combination, it does not mean that the Tribunal is not bound by limitations and conditions imposed on the planning authority. The AAT's power is defined by the enactment under which the original decision was made: Powell v AAT (above) at 12. Earlier, in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167 at 175-176, Brennan J when sitting as the President of the AAT, said:
"Section 43(1) grants the original powers and discretions to the tribunal, but it does not require the tribunal to exercise them unless the tribunal is making a fresh order the effectiveness of which depends upon their exercise.
The tribunal may exercise it powers with the same flexibility as the administrator whose decision is under review." [My emphasis.]
What Brennan J said was adopted by Wilcox J in Commonwealth of Australia v Ford (1986) 65 ALR 323 at 328-329. I add a reference to Re Shortis v Secretary, Department of Community Service and Health (1991) 23 ALD 396, in which O'Connor J said that on review the AAT may only exercise the powers and discretions available to the original decision-maker, and to that end, the tribunal's powers were circumscribed to the same extent as were those of the person whose decision was under review.
There is no reason to think that the same situation does not apply in relation to the Tribunal. It has been held that there are limitations on the powers which are conferred by s 23(1). In Break O'Day Council v Resource Management and Planning Appeal Tribunal (2004) 13 Tas R 207, the Tribunal had before it an application for a permit in respect of which the planning authority, a council, had failed to comply with the procedural requirements laid down by the LUPA Act including the giving of the prescribed notices. The Tribunal attempted to rectify the deficiencies itself by directing the council to do certain things. Underwood J (as he then was) held that all that the council could do in the absence of compliance was to refuse to grant the permit, that the powers conferred by s 23(1) did not extend to the required pre-requisites, and that as the council could not have granted the permit, the Tribunal had no power to do so: see in particular 214-215 [19]-[21].

The s 58A power

There is a limitation on the exercise of the power by a planning authority. It requires, as a pre-requisite, that the authority decide to enter into a planning agreement. It is worth noting some basic matters. By s 3(1) of the LUPA Act, a "planning authority" means a council. Under s 19 of the Local Government Act 1993, a council is a body corporate. As such, a planning authority has the power and the right to enter into an ordinary agreement by virtue of the general law. Section 71 of the LUPA Act provides for an agreement of a particular type and with particular consequences if, as may be expected, it is registered. A planning authority may choose to create obligations for itself by virtue of s 73A of the LUPA Act. Section 71 can operate quite independently of s 58A.
The power that a planning authority has under s 58A is a power to grant a permit on condition that an applicant enter into a Pt 5 agreement. By s 71, that agreement is to be with the planning authority. The power which the planning authority therefore has, is a power to impose a condition requiring a developer to enter into an agreement with it, as the planning authority. The agreement is still one which the planning authority is voluntarily entering into. It follows that, in strict terms, the power under s 58A is one which only the planning authority can exercise.
The power under s 58A is not one which contains any element of direct compulsion. Apart from the agreement to which the authority may willingly bind itself, the imposition of the condition does not purport to bind anyone other than the developer. The developer can take or leave the grant of the permit on the stated condition that the proposed agreement be entered into. Acceptance of conditions is the price to pay for a permit: Lloyd v Robinson (1962) 107 CLR 142 at 154.
There are differences when the s 58A power is in the hands of the Tribunal. In strict terms, were the Tribunal to exercise precisely the same power under s 58A as a planning authority, it would mean that the condition requires the developer to enter into a Pt 5 agreement with the Tribunal. That, of course, is not possible but the strangeness of the proposition highlights the point. The next thing to note is that the Tribunal does not have any statutory agency to enter into the agreement on behalf of the planning authority. That leaves the situation in which the power, as may be exercised by the Tribunal, is different from the power under s 58A when read literally. It is very fundamentally different when the planning authority does not consent to the proposed agreement.

Further observations

Section 58A was inserted by the Land Use Planning and Approvals Amendment Act (No 2) 1995. That Act also introduced s 73A which enables a planning authority to bind itself to make contributions to infrastructure. Other changes were made to Pt 5 by that Act, but they are of no relevance to this discussion. No associated amendments to the powers of the Tribunal were made in consequence of the insertions of ss 58A and 73A.
As earlier noted, it is s 61 that provides for appeals from the decisions of planning authorities to the Tribunal. Unaffected by the amending Act, s 61(1)(c) enables an applicant to appeal from a decision to grant a permit on conditions. Of course, that would cover a condition imposed under s 58A. At the same time, the only other possible involvement of the Tribunal under Pt 5 was, and remains, s 80. That does not speak of appeals, but enables an owner of land to apply to the Tribunal for an amendment to a proposed agreement but only if, under a planning scheme or special planning order, use or development for specified purposes is conditional upon an agreement being entered into under Pt 5, and the the owner objects to any provision of the agreement. I think that those things are more consistent with mutual voluntariness on the part of the planning authority and the permit applicant.
Because of the language of the scheme, I do not think that reference to s 8A of the Acts Interpretation Act 1931, by which an interpretation that promotes the purpose or object of an Act must be preferred to one that does not, is of any assistance. The objectives of the legislation are set out in schedules to both the LUPA Act and the RMPAT Act[2]. In Carr v Western Australia (2007) 232 CLR 138, Gleeson J at [5] discussed such rules of interpretation. His Honour said:
"Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose."
[2] "1 The objectives of the resource management and planning system of Tasmania are —

In my view, it cannot be said that the purposes of the legislation justify an interpretation of s 23(1) of the RMPAT Act which results in such an intrusion on the autonomy of a planning authority as it otherwise exists in the legislative scheme.

Conclusion

I do not think that s 23(1) of the RMPAT Act can be construed so as to give the Tribunal the power to impose a condition of a permit that the planning authority and the applicant enter into an agreement under Pt 5 of the LUPA Act, at least against the will of the authority. The notion that the Tribunal can require a planning authority to enter into an agreement by virtue of s 23(7) of the RMPAT Act is inconsistent with the statutory scheme with respect to planning agreements. To so construe the provision is to encroach, quite unreasonably, on the general rights of a planning authority even as they exist within the context of Pt 5. In my view it would take very clear words to create such a position.
I would allow the appeal. The appropriate consequential orders are that the dismissal of the appellant's appeal to the primary judge is set aside, and that appeal allowed. The matter should be remitted to the Tribunal for determination in accordance with the law.
File No 1152/2015

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

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
30 September 2015

The sole ground of this appeal contends that Blow CJ erred in his determination on 23 July 2015 that the first respondent had jurisdiction under the Resource Management and Planning Appeal Tribunal Act 1993 (the RMPAT Act), s 23(1), to require the appellant, upon the grant of a planning permit to the second respondent, to enter into an agreement under Pt 5 of the Land Use Planning and Approvals Act 1993 (the LUPA Act), notwithstanding that the appellant did not consent to being a party to such an agreement.
In February 2014 the second respondent made application to the appellant, the West Tamar Council, (the Council) to subdivide her land at 155-157 Flinders Street, Beauty Point into two lots.
Subdivision of the land was regulated by the West Tamar Interim Planning Scheme 2013 and Schedule E of that scheme which deals with risks associated with landslip and landslide, relevantly applied to the application which required the grant of a discretionary planning permit under the LUPA Act, s 57.
The Council refused the application on 29 April 2014 as it was not satisfied about mitigation of the risk of landslip or landslide on the land to be subdivided.
The second respondent appealed to the respondent (the Tribunal) and a hearing was held. On 27 October 2014 the Tribunal decided to grant provisional approval. It was satisfied that the application could be approved and it required the parties to draft and to submit for its approval a set of permit conditions, together with an agreement pursuant to s 71 of the LUPA Act (Pt 5 Agreement). The Tribunal required that the Pt 5 Agreement "address, at least" the matters set out in par [22] of its decision where it stated:
"22 The Tribunal is satisfied that an appropriately drafted Part 5 Agreement is a suitable legal mechanism for the imposition and enforcement of continuing obligations necessary to ensure the efficacy of the design required to achieve a low level of risk to life and property for the requisite period of at least fifty years. An appropriately drafted Part 5 Agreement will at least describe (directly or through incorporation by reference to applicable standards) the installed mitigation measures in terms of their design, location and operational requirements, and a monitoring regime which will describe method, and frequency of monitoring. (The Part 5 Agreement must be in a settled form approved by the Tribunal before the subdivision proceeds).
At par [25] of its reasons the Tribunal directed the parties in the following terms:
"25 The Applicant and Council are to settle appropriate conditions incorporating these matters and must submit a draft Part 5 agreement to the Tribunal for its consideration. If agreement is not reached, the parties are to submit their preferred conditions and draft Part 5 Agreement. The Tribunal requires these to be lodged and served by November 25th 2014."
It is at this point, in my view, that the Tribunal made the fundamental error that ultimately led to the appeal to Blow CJ and then from his Honour to this Court.
The Tribunal proceeded upon the misconception that because the RMPAT Act, s 23(1), provides that for the purpose of determining an appeal it "may exercise all the powers that are conferred by the relevant legislation" on the Council, and that simply because a Council, in granting a planning approval, may impose conditions or restrictions on a permit issued to an applicant, then the Tribunal could include in any permit issued an edict redolent of a mandatory injunction that the Council enter involuntarily and against its wishes, into a Pt 5 Agreement. That is to say that the Tribunal took the view that conditions and restrictions imposed by a permit could compel not only an applicant but also other persons.
The Tribunal certainly well understood that it was dealing with the very antithesis of an agreement which involves "the voluntary assumption of a legally enforceable duty" as Porter J summarised the "essence of a contract" in Price v Southern Cross Television (TNT9) Pty Ltd [2014] TASSC 70 at [49]. The Tribunal had stated at par [21] of its reasons:
"21 The Council is concerned that such an arrangement involves it in managing a private risk for an open ended period. To some extent it does, but only in a limited way and the Tribunal considers the effort required to be in the lower range of municipal functions, and reasonable in these circumstances. It is an incident of Council's role in a municipality characterised by significant areas designated landslip risk and within which development is permitted on specific terms within a planning scheme. That that risk should not sterilise the land is recognised by the Scheme which permits development if certain objective standards are satisfied. Necessarily, having regard to the inherent nature of landslip risk, that requires continuing involvement in the management of the issue since mitigation will not, typically, be a one-off exercise."
That may very well be true, but it is trite that planning permit conditions are matters which must be satisfied by the grantee of the permit and do not involve the unwanted imposition of obligations on another party. In this case that other party is the Council who, of course, is the planning authority, and I will deal shortly with the relationship between s 23 of the RMPAT Act and ss 58A and 71 of the LUPA Act. However one could not conceive, for example, of a planning permit that contained a requirement that a council must grant a right of way to the permit holder to facilitate access to the proposed development.
A permit condition might be expressed in terms that made the development conditional upon the grant of a right of way by the Council, but that would mean nothing more than that the proposed development could not proceed unless the Council agreed voluntarily to grant a right of way.
Similarly, in the present case there was nothing to prevent the Tribunal from imposing a permit condition that made the subdivision conditional upon the second respondent and the Council entering into a Pt 5 Agreement, but it could not, in my view, frame a condition that forced the Council to seal such a document, the contents of which were dictated by the Tribunal. Such a condition could only have a restrictive effect, namely, that unless the Council voluntarily entered into such an agreement, the subdivision could not proceed. It could not, in my view, operate to mandate otherwise elective conduct on the part of the Council.
I should also observe that the Tribunal could, with the benefit of such further evidence and submissions as may have been necessary, have achieved the implementation of all of the measures required to satisfy the concerns it expressed at par [22] of its reasons, by way of the imposition of orthodox permit conditions, including the requirement of covenants given by the second respondent that would run with the land. There was absolutely no need for resort to a mandated Pt 5 Agreement. The approach the Tribunal took involved an unnecessary shifting of both planning responsibility and actual obligation.
In any event, and to return to the narrative, the parties were not able to reach agreement as to the form or content of a Pt 5 Agreement, and the Tribunal required the second respondent to file and serve additional evidence, and granted to the Council leave to reply.
On 16 February 2015 the Council provided a written submission to the Tribunal, advising in essence that the Pt 5 Agreement, as drafted for the second respondent, was not acceptable to it and that it would not enter into it. It further submitted that the Tribunal did not have power to require it to enter into a Pt 5 Agreement.
The second respondent did not insist upon the Pt 5 Agreement, and the parties then engaged in submissions about the legal efficacy of restrictive covenants.
However, on 2 April 2015, the Tribunal published a further decision in which it determined that s 58A of the LUPA Act, when read with s 23 of the RMPAT Act, empowered it to grant a permit subject to a condition requiring such an agreement to be entered into by the Council despite its refusal to do so.
Section 71 of the LUPA Act provides as follows:
"71 Planning authority may enter into agreements
(1) A planning authority may enter into an agreement with an owner of land in the area covered by a planning scheme or a special planning order.
(2) A planning authority may enter into the agreement on its own behalf or jointly with any other person.
(3) A planning authority may enter into an agreement under subsection (1) with a person in anticipation of that person becoming the owner of the land.
(4) The planning authority is not entitled to apply to have the agreement referred to in subsection (3) registered under section 78 until the person becomes the owner of the land but the agreement is binding on the parties.
(5) An agreement is binding on the parties to the agreement on the day on which it is executed."
Section 72 of that Act provides as follows:
"72 Form and contents of agreement
(1) An agreement must be under seal and binds the owner to the covenants specified in the agreement.
(2) An agreement may provide for any one or more of the following matters:
(a) the prohibition, restriction or regulation of use or development;
(b) the conditions subject to which a use or development may be undertaken;
(c) any matter intended to achieve or advance —
(i)the objectives listed in Schedule 1; or
(ii)any State Policy or draft State Policy upon which a report has been submitted to the Minister in accordance with section 11(1) of the State Policies and Projects Act 1993; or
(iii)the objectives of the planning scheme or special planning order, a draft planning scheme which has been publicly exhibited under section 25 or any amendment to the planning scheme which has been publicly exhibited under section 38;
(d) any matter incidental to any one or more of the matters referred to in paragraphs (a) to (c)."

Section 58A of the same Act provides as follows:
"58A Permits requiring entering into of agreements
(1) Without limiting section 51(3A) and despite section 51(4), a permit granted by a planning authority under section 30T or section 57 or 58 may include a condition that an agreement is required to be entered into in respect of a use or development.
(2) If a planning authority grants a permit which includes a condition that an agreement is required to be entered into in respect of a use or development, the planning authority must specify in the condition the matters, and the requirements with respect to those matters, to be included in the agreement.
(3) If a person is granted a permit which includes a condition under subsection (1) and that person is not the owner of the land in respect of which the agreement to be entered into relates, the planning authority must, within 7 days of granting the permit, serve notice of its decision on the owner."
Section 23(1) of the RMPAT Act provides as follows:
"23 Determination of appeal
(1) For the purpose of determining an appeal, the Appeal Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal."
Having regard to these legislative provisions and to what his Honour considered to be the purpose and object of s 23(1) of the RMPAT Act, Blow CJ reasoned dispositively at [12] and [13] of his reasons for decision as follows:
"12 Although agreements ordinarily are voluntary because of the very nature of an agreement, and although there is nothing in the legislation that expressly states that the tribunal has the power to compel a council to enter into a Pt 5 agreement against its wishes, I think the relevant provisions should be interpreted as conferring such a power. It is clear that the tribunal can order a council to issue a planning permit against its wishes, even though a council is a democratically elected local government body with the primary responsibilities of a planning authority. If the tribunal can compel a council to act against its wishes in relation to the issue of a permit, it is by no means surprising that the tribunal should also have the power to compel a council to act against its wishes by entering into a Pt 5 agreement. Because of the role of a council as a planning authority, with responsibility for the enforcement of planning controls, including controls imposed by Pt 5 agreements, it is appropriate that a council, not the tribunal, should be a party to a Pt 5 agreement in a situation like the present one.
13 Section 23(2)(c)(i) of the RMPAT Act empowers the tribunal, when determining an appeal, to set aside a council's decision and make 'a decision in substitution for the decision appealed against'. There is no reason why such a substituted decision should not be a decision that the council must both issue a permit and enter into a Pt 5 agreement. That is the course that the tribunal took in its third decision in this case. It had the power to make such a decision. This appeal must therefore fail."
The learned Solicitor General, Mr O'Farrell SC, appearing on behalf of the Attorney-General who was acting as amicus curiae on this appeal, respectfully endorsed in his written submissions, the reasoning of Blow CJ below. In essence the Solicitor General contends:
· Section 71 of the LUPA Act is an empowering provision conferring power on a planning authority to enter into a Pt 5 agreement, and it falls squarely within the power conferred on the Tribunal under s 23(1) of the RMPAT Act.
· Under s 23(7) of the RMPAT Act the appellant is the person who is responsible for giving effect to the decision which gave rise to the appeal. Section 23(7) imposes a duty and the appellant must give effect to the Tribunal's decision.
· That duty is consistent with each of the Tribunal's functions under s 23(1).
· First, it is consistent with the Tribunal's functions as an instrument of government administration.
· Second, it is consistent with the Tribunal's task to give the correct and preferable decision. If the Tribunal reasonably forms the view that it is correct and preferable for the appellant to enter into a Pt 5 Agreement, the appellant ought to give effect to that decision.
· Third, there is good reason to give s 23(7) its full effect. If a council acting as a planning authority were permitted to refuse to enter an agreement that the Tribunal had determined was correct and preferable:
(a)it would defeat the amplitude of powers conferred on the Tribunal under s 23(1); and
(b)it would permit a council which was motivated politically to refuse the development, to abrogate capriciously the Tribunal's decision.
With respect, those contentions are overly simplistic and they fail to reflect the obvious distinction between a council's power under s 71 to decide that it was appropriate for it, as a government entity and not just as a planning authority, to enter into a Pt 5 Agreement in a case where it chose to do so and its power under s 58A, having made that antecedent decision, to make it a condition of a planning permit that the grantee enter into such an agreement. The two powers of course will often be engaged in the one case but they nonetheless enjoy a separate and not a necessarily tethered or symbiotic existence.
It is logical that the Tribunal should have, by virtue of s 23(1), the same power as the Council under s 58A, in a case where the Council has agreed to enter into a Pt 5 Agreement but, in my view, it is contrary to the legal principle of voluntariness as the essence of contractual relations and the presumption of the autonomy of legal entities, to confer upon the Tribunal, by means of a procedural provision, the power to coerce a council to unwillingly make the antecedent decision under s 71 to enter into a Pt 5 Agreement.
It is obvious from what I have earlier said that it is not necessary to construe s 23(1) as offending these principles when there are other mechanisms for addressing the Tribunal's concerns than by this shifting of responsibility from the Tribunal's power to impose permit conditions to the Council's forced entry into a Pt 5 Agreement.
The Council's submissions centre upon the issue of voluntariness. In his written submissions, counsel for the appellant, Mr McElwaine SC, stated relevantly, at pars [3.22]-[3.24] as follows:
"3.22. His Honour's conclusion as to the statutory purpose overlooks the requirement of voluntariness for an agreement. Section 58A does not displace this requirement because a landowner can never be compelled to take the benefit of a permit if the landowner objects to a requirement that an agreement be entered into.
3.23. The necessary requirement of flexibility to which his Honour refers does not support his Honour's reasoning. Where, as here, the Tribunal was told that the planning authority would not enter into an agreement under Part 5, then it was open to the Tribunal to approach its decision-making on another basis. It could, for example, have formulated different conditions .
3.24. It is true that the Tribunal may determine that a council must grant a planning authority, contrary to its wishes. That is the express power which is conferred at section 62(1)(c) of LUPA. But it does not follow, with respect, that the Tribunal may also compel a planning authority to enter into an agreement. Unlike an agreement, which imposes contractual obligations and responsibilities, a planning permit does not bind a planning authority to the acceptance of contractual obligations. Further, a planning authority (unless it is the applicant) is not the person who uses land or undertakes development in reliance upon a planning permit: it follows that a planning authority may not be prosecuted for the undertaking of development, contrary to a planning permit. In this sense a planning authority is not bound by a planning permit condition although it may be obliged to permit use or development to be undertaken in accordance with a permit and its conditions."
I accept those submissions. They reflect my own views, expressed earlier, as to the purpose and function of a planning permit, and they preserve the distinction between the decision of a council, on the one hand, to itself voluntarily enter into a Pt 5 Agreement and its power, on the other hand, having made that decision, to impose a permit condition requiring the developer's concurrence.
In terms of voluntariness, there is no inconsistency in that distinction because, unlike the outcome the Tribunal purported to force upon the Council in this case, the developer retains free choice to accept the permit condition or not to proceed upon the permit. The Council was not given such a "take it or leave it" election. The result is unfair as well as unnecessary.

In short, I agree that it is true that the Tribunal has the power to act against the wishes of the Council in determining an appeal. That is elemental. But, in my view, that power must be contained, so that it relates only to the exercise of the Council's essential decision-making as a planning authority and not to antecedent, optional, aspects of the Council's rights as an entity, such as the freedom to choose to enter into an agreement with the grantee of the permit. Those antecedent and optional aspects of power, while conferred in a planning context, should be afforded the protection of ordinary and well understood common law principles of freedom of contract and individual autonomy.
There is no compulsion to hold otherwise to be found in the purposes and objects of the scheme of the suite of legislation under consideration in this appeal. Indeed the contrary must be true. It cannot have been envisaged that the legislature intended by s 23(1) and (7) of the RMPAT Act that the Tribunal could injunct a council to itself assume corporate obligations for the benefit of an applicant for planning permission in circumstances where the council was not willing to do so. It is one thing to say that the Tribunal may, using all of the powers that "are conferred by the relevant legislation" upon a council, direct the council to reverse or modify its decision on a grant or refusal of a permit, or alter the conditions of a permit, but it is a step too far, in my view, to suggest that the Tribunal, absent clear express power, could ever force a council to enter into an agreement under which it would assume unwanted, and, to varying degrees, onerous, contractual duties.
It follows from all that I have said that I am respectfully unable to agree with the reasoning of Blow CJ in this case and I am of the view that the appeal should succeed. I would uphold the appeal. I agree with the orders proposed by the President.

File No 1152/2015

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

REASONS FOR JUDGMENT FULL COURT

PEARCE J
30 September 2015

I would also allow the appeal for the reasons given by Estcourt J. I agree also with the additional reasons of Porter J.

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; …".