Aad Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal

• Jurisdiction: Tasmania
• Judge: Evans J,Blow J,Tennent J
• Judgment Date: 05 September 2011
• Docket Number: 278/2011
• Court: Full Supreme Court
• Date: 05 September 2011

[2011] TASFC 5

[2011] TASSC 16

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Blow and Tennent JJ

278/2011

Aad Nominees Pty Ltd

and

Resource Management and Planning Appeal Tribunal

and

Kingborough Council

and

Behrakis, Peter

Behrakis, Victoria Ann

Behrakis, Dennis

Behrakis, Maria

and

Hayes, John

REPRESENTATION:

Counsel:

Appellant: S B McElwaine and E Judd

Respondent: S Estcourt QC and C Tsamassiros

Land Use Planning and Approvals Act 1993 (Tas), s57.

James Douglas v Hobart City Council [1996] TASSC 49, referred to.

Aust Dig Environment and Planning [212]

Environment and Planning — Environmental planning — Planning schemes and instruments — Development control — Consents, approvals and permits — Interpretation and construction — Generally — Construction of Kingborough Planning Scheme 2000 - Whether reference to all relevant provisions of the scheme includes desired future character statements.

Order of the Court

Appeal dismissed.

REASONS FOR JUDGMENT

FULL COURT

Evans J

1 I agree with the reasons of Tennent J and would also dismiss the appeal.

Blow J

2 I have read the reasons for judgment of Tennent J in draft form, and agree that this appeal should be dismissed, for the reasons stated by her. I would like to add some comments, mainly concerning the Kingborough Planning Scheme 2000. The full text of each of the relevant mind-numbing clauses is set out in her Honour's reasons for judgment, and I am very grateful for that.

3 The planning scheme is very complex, and exceedingly and unnecessarily difficult to comprehend or interpret. Most ordinary people would not have a chance. Most sensible people, or people with a life, would not attempt the task unless they had absolutely no choice. In order to determine how the scheme operates in relation to the appellant's proposed development, it is practically essential to have a law degree, decades of experience in interpreting legal documents, a talent for understanding gobbledygook and misused words, a lot of time, and a very strong capacity for perseverance.

4 The appellant is proposing a large retail business development. The proposed site of that development is in the ‘Business and Civic’ zone. One might think that the council would therefore have a discretion to permit the development. But it is not as simple as that.

5 The site of the proposed development is in the ‘Australian Antarctic Division Headquarters Precinct’. According to cl 6.2.1(m) of the planning scheme, the desired future character of that precinct involves its development ‘as a science/technical park precinct for scientific and or other research and associated complementary purposes’. The proposed development has nothing to do with science, research, or associated complementary purposes. One might think that the scheme would say that the council would therefore either be obliged to refuse it, or else have a discretion to permit or refuse it after taking the desired future character of the precinct into account. But it is not as simple as that.

6 Every application for a planning permit in the area to which the scheme applies needs to be evaluated according to various criteria that are set out in clauses in the planning scheme. Not all clauses contain such criteria, but dozens of them do. Not all clauses apply to a particular development. Some apply only to particular zones. Some apply only to particular uses. Some apply only to particular uses in particular zones. Some apply, regardless of zones or use classes, to particular features of proposed developments. In order to determine whether a particular development is one which the council must permit, one which the council must refuse, or one which the council has a discretion either to refuse or to permit, it is necessary to consider the applicable criteria in the clauses relevant to the proposed development.

7 But it is not as simple as that. Each clause that contains relevant criteria has them arranged in two columns – a left column and a right column. The scheme operates in the following way:

• • If, in respect of each relevant clause, the proposed development satisfies the criteria in the left column, the council must permit the development: cls 3.1.6(a)(i), 3.2.1.1(a). However the council may impose conditions: Land Use Planning and Approvals Act 1993, s58.

• • If in respect of any relevant clause, the proposed development does not satisfy either the criteria in the left column or the criteria in the right column, the council is obliged to refuse it: cls 3.1.6(b), 3.2.2(c).

• • If the proposed development does not satisfy the criteria in the left column of every relevant clause but, in respect of each relevant clause, satisfies either the criteria in the left column or the criteria in the right column, the council has a discretion to permit it or refuse it: cls 3.1.6(a)(ii), 3.2.1.1(b).

8 The appellant's proposed development falls within the last of these categories. It is one that the council had a discretion to permit or refuse. But it is not as simple as that. The planning scheme does not spell out whether, in deciding whether to permit or refuse the development, the council must, or must not, or may, take into account the fact that this development is incompatible with the statement of desired future character for the Australian Antarctic Division Headquarters Precinct. That is what this case is about.

9 The council, the Resource Management and Planning Appeal Tribunal, and the learned primary judge all took the view that that was a relevant consideration. But the appellant contends that the only relevant considerations were those relevant to the clauses where the proposed development did not satisfy the criteria in the left hand column.

10 In order to resolve that controversy, it is necessary to apply the ordinary rules relating to the interpretation of legislation. However, as counsel for the appellant pointed out with apparent glee, one of those rules does not apply. The Acts Interpretation Act 1931, s8A, which requires a purposive approach to legislation, does not apply to planning schemes. Some planning schemes contain clauses that make that section applicable, but this planning scheme does not.

11 A planning scheme is a piece of legislation. As a general rule, the words of a piece of legislation should be given their ordinary meaning: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 26 CLR 129 at 161 – 162; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at par[78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at par[47]. In my view the critical question concerns the meaning of some words in cl 3.1.5, which say that ‘an application for use or development must also show that it can perform in relation to … applicable desired future character statements’.

12 Of course those words are expressed in jargon that does not have any literal meaning. The ordinary jargon meaning of the words I have quoted is that an application in respect of a proposed development must satisfy the applicable statements of desired future character. The appellant's application did not do that. There is no reason to give the clause a more limited meaning or a modified meaning. Tennent J has explained why that is so.

13 I agree that the appeal should be dismissed.

Tennent J

14 The appellant sought a planning permit from the Kingborough Council (‘the Council’) to develop a site known as ‘Spring Farm’ at Channel Highway, Kingston (‘the land’). The land comprised an area of a little under six hectares. There were some buildings on the site which it was proposed would be demolished. The appellant sought to build a large retail development which included a supermarket, a discount department store, various specialty shops, a restaurant, a fitness centre and a petrol station. The land faces onto the highway. It is about 100 metres south of an existing industrial estate. On its southern boundary stands the Antarctic Division headquarters. A residential development is emerging to the east of the site.

15 The Council refused to grant the permit sought, and identified 15 grounds for that refusal based on provisions in the Kingborough Planning Scheme 2000 (‘the Scheme’). The appellant appealed the Council's refusal to the Resource Management and Planning Appeal Tribunal (‘the Tribunal’). When the Tribunal dealt with the matter, it did so by reference to 14 of those grounds, ground 11 having been abandoned. In respect of the various grounds, the Tribunal found some parts of the Scheme referred to simply did not apply, and that others did not provide a stand alone basis for refusal. It also found in respect of some grounds that, contrary to the Council's view, the proposal met the relevant Acceptable Solution. As to other grounds, the Tribunal found that Alternative Solutions were satisfied.

16 Ground 5 related to the refusal of the permit by reference to cl 6.2.1(m) of the Scheme. At par[39] of its reasons, the Tribunal said in relation to this:

‘39 Accordingly, the Tribunal's view is that the proposal, being distinctly and markedly contrary to the desired future character statement set out for the Australian Antarctic Division Precinct in clause 6.2.1(m), must be refused pursuant to clauses 3.1.5 and 3.1.6(a)(ii) of the Scheme. This is so even in the light of the uncontradicted evidence that never has there been a single proposal for any development of such a nature for the site. This is even so when the proposal is able to demonstrate a level of compliance with other relevant parts of the Scheme. It is so because that is what the scheme provides.’

The Tribunal's decision in respect of this clause gave rise to an appeal to a single judge of this Court. On 19 April 2011, the learned Chief Justice published reasons and dismissed the appeal from the Tribunal's decision. These reasons relate to an appeal from that last...