Michell Hodgetts & Associates Pty Ltd v Resource Management and Planning Appeal Tribunal

Court:Full Supreme Court
Docket Number:1079/2010
Judge:Tennent J, Porter J, Wood J
Judgment Date:04 Jul 2011
Jurisdiction:Tasmania

[2011] TASFC 2

[2010] TASSC 61

SUPREME COURT OF TASMANIA (FULL COURT)

Tennent, Porter and Wood JJ

1079/2010

Michell Hodgetts & Associates Pty Ltd
and
Resource Management and Planning Appeal Tribunal

and

Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd Trading as Cradle Mountain Water

and

Central Coast Council

Water and Sewerage Industry Act 2008 (Tas), ss56O, 56P, 56Q, 56R, 64, 66, 88.

Land Use Planning and Approvals Act 1993 (Tas), ss51(3A), 57, 61, 62.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss23, 25.

Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 79 ALJR 414 ; DOMA Pty Ltd v The City of Hobart [1983] Tas R 132, referred to.

Aust Dig Environment and Planning [217]

Environment and Planning — Environmental planning — Development control — Consents, approvals and permits — Conditions — Power to impose.

REASONS FOR JUDGMENT
FULL COURT
Tennent J
1

On 30 July 2009, an application was made to the Central Coast Council (‘the Council’) for the approval of a 71 lot subdivision in the Ulvertsone area. Because the application related to a subdivision, the Council had a discretion as to whether to grant or refuse the permit (seeLand Use Planning and Approvals Act 1993 (‘LUPA’), s57). If granted, such a permit could be subject to such conditions or restrictions as the Council might impose (LUPA, s51(3A)). The Council was required, by reference to the Water Sewerage Industry Act 2008 (‘WSIA’), s56O, to give notice of the application to the relevant regulated entity, which in this case was Cradle Mountain Water (‘CMW’). It did so.

2

WSIA, s56P(1) and (2), provided for the manner in which CMW could deal with the application once it had notice of it. They provide:

‘(1) The relevant regulated entity may make submissions to the planning authority on an application that is the subject of a notice under section 56O(1) and the relevant regulated entity is taken to be a person who has made representations under section 43F(5) or 57(5) of the Land Use Planning and Approvals Act 1993 if it has made any such submissions.

(2) A submission made under subsection (1) by a regulated entity to a planning authority may include a submission that –

  1. (a) the regulated entity does not object to the granting of the permit; or

  2. (b) the regulated entity does not object if the permit is subject to conditions specified by the regulated entity; or

  3. (c) in the case of a discretionary development permit or combined permit, the regulated entity objects to the granting of the permit on any specified ground.’

3

CMW did not object to the granting of the permit but sought that a particular condition be imposed on any permit granted. The condition sought was in the following terms:

‘The Developer is required to pay CMW [Cradle Mountain Water] a water and sewerage headwork's [sic] in accordance with the [Cradle Mountain Water] water and sewerage headworks policy in effect on the date the final survey plan is lodged with [the] Council. Payment is to be made under [Cradle Mountain Water] prior to [the] Council sealing the final plan of survey.’

4

The Council in due course issued a planning permit to the developer. The permit contained a number of conditions which included the above. The developer's representative (‘the appellant’) appealed,inter alia, against the Council's decision to impose that condition to the Resource Management Planning and Appeal Tribunal (‘the Tribunal’) created under the Resource Management and Planning Appeal Tribunal Act 1993 (‘the RMPAT Act’). The Tribunal determined that the condition was void and severable from the permit. It however imposed an alternative condition which was in the following terms:

‘The Developer is to pay a Cradle Mountain Water Headworks charge in the sum of $4018.00 indexed in accordance with the Consumer Price Index (All Groups – Hobart) for each Equivalent Tenement. Payment is to be made to the Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd trading as Cradle Mountain Water immediately prior to the sealing of the final plan of survey.’

5

The appellant thereafter appealed that decision pursuant to the RMPAT Act, s25, to a single judge of this Court. That appeal could only relate to a question of law. On 17 December 2010, Evans J dismissed that appeal. This is an appeal from his decision. The grounds of appeal pursued by the appellant are in the following terms:

‘1 That the learned Judge erred in law in holding the Council had power to impose the headworks charge referred to in the Decision of the Tribunal at paragraph 27 (“the Headworks Charge”) for existing infrastructure belonging to and administered by Cradle Mountain Water (“CMW”) when CMW did not have power to impose or seek such a charge.

2 That the learned Judge erred in law to the extent that His Honour's finding in paragraph 21 and paragraph 24 of the Decision that a Council retains a general planning power to impose conditions referrable to water and sewerage amounted to an implied holding at law that Council and therefore the Tribunal could impose the Headworks Charge.

3 That the learned Judge erred in law in upholding the Headworks Charge requiring payment for headworks to CMW when CMW did not have power to levy the Headworks Charge or seek it as a condition of the subdivision permit.

…..

7 That the learned Judge erred in law failing to uphold the Appellant's Submission that the Headworks Charge was objectively unreasonable because it was based on a policy decision taken by CMW without recourse to the regulator and in contravention of the Statutory Scheme.’

Relevant parts of the decision appealed from
6

Evans J succinctly dealt with the appeal before him in pars[20] to [24] of his decision. He said:

‘20 It is beyond question that the provision of water and sewerage services is of fundamental importance to many aspects of the responsibilities of a planning authority. This State is divided into municipal areas,Local Government Act 1993, s16(1). Each municipality has a council, Local Government Act, s18(1). A council is a planning authority, LUPA, s3. A planning authority is responsible for land use and planning within its municipal area, and a planning scheme for an area must, amongst other things, further the objectives set out in LUPA, Sch1, Local Government Act, s20(1)(a) and LUPA, s51(2)(a). Those objectives include providing for: the fair, orderly and sustainable use and development of land and water; sustaining the potential natural and physical resources to meet the reasonably foreseeable needs of future generations; protecting public infrastructure and other assets; and enabling the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community. Consistent with these objectives, planning authorities must have power in relation to water and sewerage services and it is inevitable that planning schemes must, as the Scheme in this case does, contain numerous provisions referable to these services. As already mentioned, the Scheme's objectives in relation to subdivisions in the residential zone include ensuring that each lot has appropriate sewerage and water services. The acceptable standard for these services in the residential zone is connection to a reticulated sewerage system and connection to a reticulated water supply of a specified pressure; see the Scheme cl 6.3.1, (2) and (3), and P2. The Scheme contains broadly similar provisions referable to sewerage and water services in at least eight zones besides the residential zone.

21 Whilst a regulated entity may make submissions to a planning authority about an application for a permit, it is not obliged to do so, s56P(1). A planning authority may assume that a regulated entity has no submissions to make if submissions are not received within the time specified, s56P(3). If a regulated entity does not make submissions on an application for a permit, but the planning authority considers that conditions referable to water and sewerage services should apply to the grant of the permit, plainly, the authority should impose those conditions. That a planning authority retains the power to impose conditions referable to water and sewerage services is recognised by s56Q(2)(b) which requires that a condition imposed by a planning authority must not conflict with a condition required by a regulated entity. So, contrary to the appellant's contention that the effect of the provisions of WSIA is to deprive planning authorities of the power to impose conditions referable to water and sewerage, that Act implicitly recognises that planning authorities retain such a power. I accordingly agree with the Tribunal that the Council retains a general planning power to impose conditions of the nature in question.

22 For the above reasons, I reject the first and third grounds of appeal set out in par[4] of these reasons. Whilst this disposes of the proposition that the Tribunal did not have the power to impose the condition in contention, I will address the second ground of appeal, which challenges the Tribunal's conclusion that it was also authorised by WSIA and the IPO to impose the condition in contention. The Tribunal did not hold that the IPO authorised the imposition of the condition. However, in pars[9] – [12] of its decision, the Tribunal did conclude that WSIA was one of two sources for its power to impose a condition containing the charge in question. In the condition the Tribunal characterises the charge as a “Headworks charge”. In par[11] of its decision, the Tribunal said that the terms “developer charges” and “headworks charges” are interchangeable. The term “developer charges” is not defined in WSIA. In par[11] of its decision the Tribunal said that this term means a charge that is levied in relation to...

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