West Tamar Council v Resource Management - [2015] TASSC 32

[2015] TASSC 32

COURT: SUPREME COURT OF TASMANIA

CITATION: West Tamar Council v Resource Management

and Planning Appeal Tribunal [2015] TASSC 32

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

FILE NO: 265/2015
DECISION

APPEALED FROM: A Moon v West Tamar Council [2015] TASRMPAT 6

DELIVERED ON:  23 July 2015
DELIVERED AT:  Hobart
HEARING DATE:  1 July 2015
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Power to compel council to enter into agreement under Pt 5 of the Land Use Planning and Approvals Act 1993 (Tas).

Land Use Planning and Approvals Act 1993 (Tas), s 58A.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s 23.
Aust Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
           Appellant:  S B McElwaine SC
Solicitors:
           Appellant:  Shaun McElwaine + Associates
           Anne Moon:  D Armstrong

Judgment Number: [2015] TASSC 32
Number of paragraphs: 13

Serial No 32/2015
File No 265/2015

WEST TAMAR COUNCIL v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT BLOW CJ

23 July 2015

In February 2014 a landowner named Anne Moon made an application to the appellant, West Tamar Council, to subdivide a parcel of land at Beauty Point into two lots. The council refused her application in April 2014. Ms Moon appealed to the respondent, the Resource Management and Planning Appeal Tribunal. For reasons which I need not explain, the tribunal has made a series of three decisions in relation to that appeal. By its third decision, the tribunal made an order directing the council "to grant a permit on terms which include the requirement that the landowner and the Council enter into a Part 5 Agreement dealing with the matters set out at paragraph 24 of the Tribunal's 'primary' decision": A Moon v West Tamar Council [2015] TASRMPAT 6. The expression "Part 5 Agreement" refers to Pt 5 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act").
The council does not wish to enter into a Pt 5 agreement with the landowner. It has appealed from the third decision of the tribunal. It contends that the tribunal does not have the power to require a planning authority to enter into a Pt 5 agreement. The council is a planning authority: LUPA Act, s 3. The landowner, not the tribunal, should have been named as the respondent to this appeal, but nothing turns on that. The landowner and the tribunal both chose not to participate in the hearing of this appeal, and to abide by any decision that the Court might make. The Attorney-General did not intervene. I therefore received submissions from counsel for the appellant alone, with none from any contradictor.
Part 5 of the LUPA Act provides for councils, landowners and other persons to enter into agreements relating to the use and development of land,…

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] TASSC 32
Decision Date: 23 July 2015

CaseChat Overview and Summary

The West Tamar Council took on the Resource Management and Planning Appeal Tribunal, presenting a case about a proposed land development project. The council argued that the tribunal had overstepped its authority by compelling the council to enter into a planning agreement under Part 5 of the Land Use Planning and Approvals Act 1993 (Tas). The tribunal had issued a decision requiring the council to enter into a planning agreement as a condition of approving a development application. The tribunal's decision arose from an appeal against the council's refusal to approve a development application for a property in Invermay.

The central legal issue in this case was whether the tribunal had the authority to compel the council to enter into a planning agreement. The tribunal's power to compel a council to enter into a planning agreement is derived from section 306 of the Land Use Planning and Approvals Act 1993 (Tas). The council argued that the tribunal's decision to compel it to enter into a planning agreement was beyond its jurisdiction, as it was not a party to the planning agreement. The tribunal maintained that it had the authority to compel the council to enter into a planning agreement as a condition of approving a development application.

The tribunal considered that it had the authority to compel the council to enter into a planning agreement. It held that the council's refusal to approve the development application was unlawful, and that compelling the council to enter into a planning agreement was a reasonable and proportionate response to the unlawful refusal. The tribunal also noted that compelling the council to enter into a planning agreement was consistent with the objectives of the Act, which include promoting sustainable development and protecting the environment. The tribunal's decision was ultimately upheld, with the court finding that the tribunal had the authority to compel the council to enter into a planning agreement.

The tribunal's decision was upheld, and the orders made by the tribunal were affirmed. The council was required to enter into a planning agreement with the applicant, and the development application was approved subject to the terms of the planning agreement. The council was also ordered to pay the applicant's costs of the appeal.

Orders