West Tamar Council v Resource Management

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.