West Tamar Council v Tasmanian Planning Commission

[2013] TASSC 16

[2013] TASSC 16

COURT:  SUPREME COURT OF TASMANIA

CITATION:      West Tamar Council v Tasmanian Planning Commission [2013] TASSC 16

PARTIES:  WEST TAMAR COUNCIL
  v
  TASMANIAN PLANNING COMMISSION

FILE NO:  138/2012
DECISION

UNDER REVIEW:  West Tamar Planning Scheme 2006 amendment 5/2009

[2010] TASPComm 10

DELIVERED ON:  10 May 2013
DELIVERED AT:  Hobart
HEARING DATE:  13 December 2012
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Tasmanian Planning Commission – Modification of planning permit when planning scheme amended – Whether Commission bound by planning scheme.

Land Use Planning and Approvals Act 1993 (Tas), s43H(1)(b)(ii).
Aust Dig Environment and Planning [52]

REPRESENTATION:

Counsel:
             Applicant:  D J D Morris
             Respondent:  No appearance
             Attorney-General:  P Turner
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  No appearance
             Attorney-General  Director of Public Prosecutions

Judgment Number:  [2013] TASSC 16
Number of paragraphs:  23

Serial No 16/2013
File No 138/2012

WEST TAMAR COUNCIL v TASMANIAN PLANNING COMMISSION

REASONS FOR JUDGMENT  BLOW CJ

10 May 2013

1. This is an application under the Judicial Review Act 2000 for the review of a decision made by delegates of the respondent, the Tasmanian Planning Commission. The decision related to an application by a developer, Ecclestone Lakes Pty Ltd, under s43A of the Land Use Planning and Approvals Act 1993 ("the LUPA Act") for the rezoning of some land at Riverside, and for a planning permit for a residential subdivision of that land. On 31 January 2012, the delegates made a decision giving the Commission's approval to a draft amendment of the relevant planning scheme, and modifying the permit for the subdivision, which had been granted at an earlier stage by the West Tamar Council. In its original form, the permit contained a condition requiring the developer to make a payment in lieu of the provision of land for public open space. That condition was deleted by the Commission when it modified the permit. The council is aggrieved by the deletion of that condition, and has therefore applied for judicial review of the Commission's decision.

1. The respondent and the developer both chose not to take any part in these proceedings. The Attorney-General intervened in the proceedings pursuant to s39 of the Judicial Review Act.  At the hearing he was represented by counsel, who opposed the application.

1. The deleted condition read as follows:

"PUBLIC OPEN SPACE AND LANDSCAPING

41When the Final Survey Diagram is submitted for sealing, payment must be provided for cash in lieu of the provision of land for Public Open Space equal to 5% of the value of the approved lots as determined by a registered land valuer procured at the subdivider's expense."

1. For reasons explained below, the condition was ultra vires.  The council contends that the Commission should not have deleted it altogether, but should have modified it so that it was consistent with the applicable planning scheme – the West Tamar Planning Scheme 2006 – and with the Local Government (Building and Miscellaneous Provisions) Act 1993 ("the LGBMP Act"). The council contends that, in deciding to delete the condition altogether, the Commission erred by taking into account an irrelevant consideration, and by failing to take into account a relevant consideration. Further, it contends that the Commission erred in law in determining that the deleted condition was "unfair and unreasonable".

Condition 41 was ultra vires

1. The only provision in the planning scheme that empowered the council to require a cash payment when no public open space was provided as part of a residential subdivision was "Acceptable Solution" A1.2 in cl S11.5.3 in Schedule 11.  That provision read as follows:

"Where insufficient or unacceptable land is offered, payment equivalent to 5% of the unimproved value of the whole area subject to the proposal excluding any balance area not subject to intensification. The unimproved value of the land is to be determined by an independent valuation, procured by Council at the proponent's expense."

1. Condition 41 required a payment "equal to 5% of the value of the approved lots", not 5% of the unimproved value as specified in the planning scheme.  That was inappropriate for two reasons.  First, there was a small dwelling on the land, and that made its value greater than its unimproved value.  Further, the delegates considered that the "unimproved value" was the value of the land as a single parcel, ignoring any subdivision approval or any works carried out.  

1. When no land is provided in a subdivision for public open space, the LGBMP Act, s117, empowers a council, before approving a plan of subdivision, to require security for an amount not exceeding the value of one twentieth (or 5%) of the whole area comprised in the plan. That section is silent as to whether the amount in question is to be calculated by reference to the improved value of the land or its unimproved value. However s116, which provides for the purchase of additional land for public open space contains a provision requiring the relevant land to be valued as at the date of lodgement of the plan of subdivision: s116(6). The delegates referred to that subsection in their decision. It does not necessarily follow from the presence of that subsection in s116 that land must be valued according to its unimproved value for the purposes of s117.

1. However it is clear that Condition 41 required a greater payment than the planning scheme authorised.  The council accepts that the requirement that the developer pay an amount "equal to 5% of the value of the approved lots" was beyond its power.

An irrelevant consideration?

1. The land to which the decision under review relates is part of a 19.20 hectare parcel of land that was originally owned by the developer and comprised in a single certificate of title.  A permit for a 24-lot low density subdivision covering part of that land was given by the council in March 2009.  The decision under review related to the balance of the land.  At the time of the original 24-lot subdivision, the developer provided 4.46 hectares of land – more than 20% of the 19.20 hectares – by way of public open space. 

1. Clause S11.5.3 of the planning scheme made it possible for the council to require the provision of at least 2,000m², or 5% of the total subdivision area, whichever was the greater, by way of public open space; the provision of cash in lieu; or the provision of a smaller area of land with a reduced payment of cash in lieu.  The delegates addressed the relevant provisions of the planning scheme in the reasons for their decision.  They considered the provision of the 4.46 hectares at the time of the 24-lot subdivision and concluded:

"Clearly, by providing 4.46 ha of public open space from a block of 19.20ha, the owner has more than satisfied the 5% requirement … Condition #41 should be deleted.

However, even if we are wrong in our interpretation a further argument can be raised (as Mr Armstrong did) on the basis of fairness and reasonableness. We concur with Mr Armstrong that it would be unfair and unreasonable to require the applicant, having contributed an area of land in excess of what is required by the planning scheme, to also be required make a cash contribution in respect of the latest phase of development of the block."

1. By ground 1(a) of its grounds of review, the council contends that the subdivision being considered by the delegates was a different subdivision from the original 24-lot subdivision, and that the provision of public open space pursuant to the earlier subdivision was therefore an irrelevant consideration.  Counsel for the council submitted that the Commission was obliged by the planning scheme to make a decision that would require the developer, as a condition of the permit, to provide land for public open space, or to make a payment in lieu, in accordance with cl S11.5.3.

1. Counsel for the Attorney-General did not argue against the contention that the planning scheme obliged the council, when it issued a permit for a residential subdivision, to require the provision of public open space and/or cash in lieu in accordance with cl S11.5.3. However he submitted that when the Commission or its delegates modify a permit pursuant to s43H(1)(b)(ii) of the LUPA Act, which is what the delegates did in this case, the provisions of the relevant planning scheme are not binding on the Commission or its delegates.

1. I agree. A council, in its capacity as a "planning authority", is obliged by s48 of the LUPA Act to observe a planning scheme in respect of all use or development undertaken within the area to which it relates. When there is an appeal to the Resource Management and Planning Appeal Tribunal in relation to an application for a permit, that tribunal is empowered by s23(1) of the Resource Management and Planning Appeal Tribunal Act 1993 to "exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal", but it is not authorised to impose a permit condition that the original decision-maker had no power to impose. When a person applies to a council under s43A of the LUPA Act for both an amendment to a planning scheme and a permit, the council is constrained by s43C(3), which requires it to make its decision "as if the planning scheme … had been amended in accordance with the draft amendment which has been initiated … in response to a request under section 43A". However there are no express restrictions, nor in my view any implied restrictions, on the scope of the Commission's power to modify, delete or add permit conditions under s43H(1). That is the subsection that applies when a person has applied for both the amendment of a planning scheme and a permit. It reads as follows:

"(1)   At the same time as the Commission makes its decision to reject or approve the draft amendment, it must —  

(a)confirm the decision of the planning authority under section 43F(1) in relation to the permit; or

(b)if the planning authority's decision was to grant a permit —

(i)   refuse the permit; or

(ii)  modify or delete conditions or restrictions attached to the permit or add new conditions or restrictions to the permit; or

(c)if the planning authority's decision was to reject the permit, grant a permit subject to such conditions or restrictions as the Commission thinks necessary; or

(d)if the Commission's decision is to reject the draft amendment in accordance with section 41(b), refuse the permit."

1. I do not think there is any reason to interpret that subsection as imposing an implied restriction whereby the Commission must comply with an applicable planning scheme when deleting, modifying or adding a permit condition.  The Commission stands above planning schemes.  It makes them and amends them.  If its power to modify, delete or add permit conditions under s43H(1) was restricted, it could circumvent any such restriction by amending the applicable planning scheme so as to permit the desired modification, deletion or addition.  Any such restriction would therefore be pointless.

1. The Commission is required by s6(3) of the Tasmanian Planning Commission Act 1997 ("the TPC Act") to perform its functions and exercise its powers in a manner that furthers the objectives set out in Schedule 1 to that Act.  Clause 1(b) of that Schedule provides that one of the objectives of the resource management and planning system of Tasmania is "to provide for the fair, orderly and sustainable use and development of air, land and water".  The delegates' reasons for deleting condition no 41 had to do with the "fair" development of land.  In substance they decided that, the developer having provided 4.46 hectares of land by way of public open space at the time of the original 24-lot subdivision, it would be unfair to require a cash payment in lieu of further public open space.  There was nothing in the planning scheme that made that an irrelevant consideration because the Commission and its delegates were not bound by the planning scheme. 

1. Clause 1(b) made fairness a relevant consideration.  The delegates did not take any irrelevant consideration into account.  Ground 1(a) must therefore fail.

Failure to take into account a relevant consideration?

1. Ground 1(b) of the council's grounds of review asserts that the Commission "failed to take into account a relevant consideration, namely, that the provisions of the West Tamar Planning Scheme 2006 imposed public open space requirements for proposals for development of 2 lots or more". 

1. This ground must also fail.  The only relevant provisions of the planning scheme are those in cl S11.5.3, which I have discussed.  The delegates were well aware of them.  They were not bound by them, for the reasons stated above.  The provisions as to public open space in the planning scheme were no doubt a relevant consideration, but fairness was a competing consideration.  Therefore the fact that the delegates did not make a decision that conformed with those requirements does not compel a conclusion that they failed to take them into account. 

Error as to Condition 41 being "unfair and unreasonable"?

1. Ground 2 of the council's grounds of review asserts that the delegates "erred in law in determining that Condition 41 … was 'unfair and unreasonable' on the basis that Ecclestone Lakes Pty Ltd have [sic] previously contributed an area of land in excess of what is required by the West Tamer Planning Scheme 2006 under a different development application".

1. In relation to this ground, counsel for the council argued that Condition 41 was not so unreasonable that no planning authority would impose such a condition.  He referred to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 2 KB 223, Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30, and Michell Hodgetts & Associates Pty Ltd v Resource Management and Planning Appeal Tribunal (2011) 182 LGERA 434.

1. In my view those submissions were misconceived.  The Commission's powers to override a council's decision by granting, refusing or modifying a permit pursuant to s43H(1) are completely different from the power of a court to quash an administrative decision that is so unreasonable as to be beyond a statutory decision-making power.  When the Commission or its delegates use the powers conferred by s43H(1) to vary or reverse a council's decision about a permit, they are concerned with much wider questions than the validity or otherwise of the council's decision.  Because of the provisions of the TPC Act, s6(3), it is their duty to make a decision which, in their view, best furthers the objectives of the resource management and planning system of Tasmania as set out in Schedule 1 to that Act.  It is therefore the duty of the Commission and its delegates, when appropriate, to improve on a council's decision by exercising one of the powers conferred by s43H(1). 

1. When the delegates concurred with the proposition that the requirements of Condition 41 would be "unfair and unreasonable", they were not saying that Condition 41 was so unreasonable that no council should have imposed it.  They made no such error of law.  It was open to them to take the view that its operation would be unfair and unreasonable, in the ordinary sense of those words, and that is all they did.  This ground must also fail.

Conclusion

1. For these reasons, the application is dismissed.