Purton, Mark v Jackson, Maureen Faye

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Evans J,Blow J
• Judgment Date: 19 July 2012
• Court: Full Supreme Court
• Docket Number: 477/2011
• Date: 19 July 2012

[2012] TASFC 2

[2011] TASSC 28

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford CJ, Evans and Blow JJ

477/2011

Purton, Mark

Purton, Judith

and

Jackson, Maureen Faye

Jackson, Athol Charles

Waratah-Wynyard Council

REPRESENTATION:

Counsel:

Appellants: K J Stanton

First Respondents: B R McTaggart

Second Respondent: A C R Spence

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s23(5), (6).

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1, considered.

Aust Dig Environment and Planning [596]

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 of tribunal to reconsider its decision — Original decision involving jurisdictional error.

Order of the Court

Appeal dismissed.

REASONS FOR JUDGMENT

FULL COURT

Crawford CJ

1 Subject to reservations I have concerning the possible application of the Acts Interpretation Act 1931, s20(a), to the circumstances of this case, I agree that for the reasons given by Blow J, the appeal should be dismissed.

Evans J

2 I agree with Blow J's reasons for judgment and would also dismiss the appeal.

3 I mention that support can be found in the following authorities for his Honour's view that, in consequence of the Acts Interpretation Act 1931 (Tas), s20(a), subject to any indication in legislation to the contrary, the prima facie position in Tasmania is that a statutory authority or decision-maker has the power to vary or reverse a statutory decision. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 pars[34], [35], [100] and [113], Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211, Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 at 678 – 679 and Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 430. These decisions refer to the Acts Interpretation Act 1901 (Cth), s33(1), a provision that is in similar terms to the Acts Interpretation Act (Tas), s20(a). See also Edenmead Pty Ltd v Commonwealth of Australia (1984–85) 59 ALR 359, which deals with the impact of the Acts Interpretation Act (Cth), s33(3), on the power to make, grant or issue any instrument, and Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332.

Blow J

4 This appeal concerns some land at Moorleah, south of Wynyard, that is owned by a couple named Jackson. They are two of the respondents to this appeal. For some years they have wanted to build a house on their land. The appellants, Mr and Mrs Purton, own some neighbouring land. They are opposed to the Jacksons' proposal to build a house. The land is within the municipal area of the Waratah-Wynyard Council, which is also a respondent to the appeal. The appellants and the respondents have become entangled in complex, expensive, protracted and messy legal proceedings that have gone on for years. This is a situation that could and should have been avoided. This appeal will not bring the litigation to an end. Whatever the result, there will have to be at least one further hearing of some sort.

5 The unfortunate history of this dispute, so far as is relevant, can be summarised as follows:

• • In September 2008 the Jacksons applied to the council for a planning permit for the construction of a residence pursuant to the Land Use Planning and Approvals Act 1993 (‘the LUPA Act’), s57.

• • The Purtons made a representation to the council under s57(5) objecting to the granting of a permit.

• • On 17 November 2008 the council decided to grant the permit.

• • The Purtons appealed to the Resource Management and Planning Appeal Tribunal (‘the tribunal’). In the course of the appeal proceedings the council's then solicitor raised questions as to whether the relevant planning scheme empowered the council to grant the permit at all and whether, as a result of the council having no jurisdiction to grant a permit, the tribunal had no jurisdiction to hear an appeal. On 26 February 2009 the tribunal, constituted by its chairman, Mr Cooper, decided that that was the situation. Evidently none of the parties argued that the relevant legislation, properly construed, conferred a right of appeal from ‘invalid decisions’, as legislation sometimes does: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. The learned chairman delivered a decision by which he concluded that the tribunal was ‘without jurisdiction to further hear and determine the matter’.

• • The parties had the right to appeal from that decision under the Resource Management and Planning Tribunal Act 1993 (‘the RMPAT Act’), s25(1), or to apply for it to be reviewed under the Judicial Review Act 2000. No such proceedings were instituted at that stage. Evidently the Purtons were content with the tribunal having taken the view that the permit was invalid, and the Jacksons were content that there was no risk of the tribunal interfering with their permit.

• • In May 2009, acting in reliance on the planning permit, the Jacksons applied to the council's permit authority under the Building Act 2000 for a building permit for the proposed dwelling. The permit authority refused that application.

• • The Jacksons appealed to the Building Appeal Board. The board took into account the tribunal's finding that the permit was invalid, and rejected the appeal on the basis that the requisite planning permit had not been granted.

• • The Jacksons applied under the Judicial Review Act for the review of the board's decision. The council and the Purtons were joined as respondents to that application. Porter J set aside the board's decision, declared that the permit was valid in that it was within the council's powers under the LUPA Act, and remitted the building permit appeal to the board: Jackson v Building Appeal Board [2010] TASSC 29. In his reasons, his Honour held that there were a number of provisions in the planning scheme, not referred to in the tribunal's decision of 26 February 2009, that empowered the council to grant the permit.

• • Two days after Porter J gave judgment, the Purtons wrote to the tribunal requesting that their appeal proceed. The Jacksons made written submissions to the effect that the tribunal was functus officio and had no power to deal with the appeal. On 23 August 2010 the tribunal delivered a second decision, determining that it had jurisdiction to hear and determine the appeal, thereby reversing its first decision.

• • The Jacksons appealed to the Court against the tribunal's second decision. The tribunal has not taken any further steps in relation to the appeal to it, pending the outcome of the court proceedings. Wood J heard the appeal, held that the tribunal had no power to proceed to hear and determine the Purtons' appeal against the grant of the permit, and made an order setting aside the tribunal's second decision: Jackson v Purton [2011] TASSC 28.

6 This is an appeal from the decision of Wood J setting aside the tribunal's second decision. The Purtons, as appellants, contend that the tribunal has, and continues to have, the power and the duty to hear and determine their appeal against the granting of the permit. The Jacksons and the council contend that the learned primary judge was correct when she decided that the tribunal no...