Smith, John v Hobart City Council

Court:Full Supreme Court
Docket Number:226/2010
Judge:Evans J, Blow J, Wood J
Judgment Date:21 Dec 2010
Jurisdiction:Tasmania

[2010] TASFC 9

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Blow and Wood JJ

226/2010

Smith, John
Smith, Penny
and
Hobart City Council

Aust Dig Environment and Planning [184]

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), s85(a).

Environment and Planning — Environmental planning — Development control — Control of particular matters — Subdivision — Principles governing consent or approval — General principles — Refusal based on lack of access to adjoining lot — Relevant considerations — Duty to further objective of providing for fair and orderly development.

REASONS FOR JUDGMENT
FULL COURT
Evans J
1

I agree with the reasons of Blow J and agree that the appeal should be allowed to the extent of varying the order of the learned primary judge by adding the directions to the tribunal specified by Blow J.

Blow J
2

This appeal concerns an application by the appellants for a permit for a subdivision. They own a bushland block at 502 Nelson Road, Mount Nelson. Its total area is about 2.26 hectares. They want to subdivide it into 12 residential lots. They applied to the Hobart City Council (‘the council’) for the necessary permit under theLand Use Planning and Approvals Act 1993 (‘the LUPA Act’), s57. The council refused that application.

3

There is a similar property that adjoins the appellants' land. That property is 512 Nelson Road. That property does not have a frontage onto any public road. The owner of 512 Nelson Road applied for a permit for a subdivision of that land in 2006, but that application has neither been granted nor refused. It has remained ‘stalled’, essentially because of the lack of direct road access to that property.

4

The appellants' plan of subdivision, as lodged with the council, made provision for a cul-de-sac running off Nelson Road, but not connecting with 512 Nelson Road. One of the reasons for the council refusing the appellants' application was that the plan did not provide for road access, through their land, to 512 Nelson Road. Council considered that any subdivision of their land should include provision for a public road giving such access. There was a second reason for the council's refusal, but it is not relevant to this appeal.

5

In refusing to approve the appellants' plan of subdivision, the council relied upon theLocal Government (Building and Miscellaneous Provisions) Act 1993 (‘the LGBMP Act’), s85(a). That provision reads as follows:

‘The council may refuse to approve a plan of subdivision if it is of the opinion –

(a) that the roads will not suit the public convenience, or will not give satisfactory inter-communication to the inhabitants both of the subdivision and the municipal area in which it is …’.

6

The appellants appealed to the Resource Management and Planning Appeal Tribunal. They were successful:J and P Smith v Hobart City Council [2009] TASRMPAT 94. The tribunal set aside the council's decision and, in substitution for it, made a decision approving the appellants' plan of subdivision.

7

The council appealed, and was successful:Hobart City Council v Smith (2010) 172 LGERA 272, [2010] TASSC 11. Porter J held that the tribunal had erred in law in the following respects:

  • • In directing itself ‘as a matter of law, that the planning power could not be properly used in … a way which may ultimately impose a burden on the developer and consequentially confer an advantage on an adjoining landowner’.

  • • In taking into account two considerations that he held to be irrelevant, namely (i) that the problem of road access to 512 Nelson Road had been created by past planning decisions of the council; and (ii) that a requirement that the appellants provide for access to 512 Nelson Road would impose a significant financial impost on them and confer a significant financial advantage on the owner of that property.

8

His Honour set aside the orders of the tribunal and ordered a rehearing by it of the appeal from the council's decision. He also ordered that the tribunal be differently constituted.

9

The appellants contend that his Honour's conclusions as to errors of law were themselves erroneous. Specifically,

  • • They contend that the tribunal did not direct itself that the planning power could not be properly used in such a way as to impose a burden on them and confer an advantage on the adjoining landowner, but made a perfectly proper merits-based decision.

  • • They contend that the past planning decisions of the council and the financial consequences of a requirement to provide road access to 512 Nelson Road were relevant considerations that the tribunal properly took into account.

Relevant or irrelevant considerations
10

The tribunal had evidence before it as to the sequence of events that resulted in 512 Nelson Road not having a frontage onto any public road. There was evidence of the following facts:

  • • 512 Nelson Road was originally part of a slightly larger property known as Lot 58.

  • • Before 1972 there was a subdivision of Lot 58 which resulted in the formation of a ‘battle axe’ block comprising six acres and known as 512 Nelson Road. It had a frontage onto Nelson Road of a little under 80 feet, and was about that wide for the first 150 feet or thereabouts back from Nelson Road. It then opened out behind four smaller residential blocks, to a width of about 330 feet, and extended back about another 750 feet to its rear boundary.

  • • On 21 July 1964 there was meeting of the council's Town Planning Committee which approved a road layout. However the council was unable to find any record as to what that committee approved at that meeting.

  • • In 1972 the council and the Minister for Lands and Works approved a further subdivision of 512 Nelson Road, dividing it into two lots. Lot 1 comprised the front area measuring about 80 feet by about 150 feet with a frontage onto Nelson Road. Lot 2 comprised the rear area measuring about 350 feet by about 750 feet, with a right of way 12 feet wide running along the western boundary of Lot 1 to Nelson Road. In a letter dated 5 December 1972, the Town Clerk wrote:

    ‘Lot 1 was by a previous subdivision left as a road inlet for the development of lot 58. This is no longer required as alternative road access will become available from the adjoining properties, in line with a road layout approval by the Town Planning Committee on 21st July 1964.’

  • • As a result of that subdivision, Lot 2, the present 512 Nelson Road, did not have a frontage onto any public road, but it did have rights of way over adjoining properties, to Nelson Road on the north side and Lalwinya Court on the south side.

  • • No provision was made for any direct road access to 512 Nelson Road in the City of Hobart Planning Scheme 1982.

11

The tribunal also had evidence as to the likely financial consequences of the provision of public road access to 512 Nelson Road through the appellants' subdivision. That evidence suggested that one lot in the subdivision would need to be sacrificed to provide such access, and that the sale price of such a lot would be in the order of $180,000 or thereabouts.

12

In par[43] of his reasons, the learned primary judge said the following:

‘The last two considerations said to be irrelevant to the issue under s85(a) are that the solutions to the access problems of No 512 were put forward to cure a problem created by earlier planning decisions of the Council, and that to provide access to the adjoining lot would impose a significant financial impost, and at thesame time confer a financial advantage on the owner of No 512. For the reasons which I have already given in relation to grounds 1 to 4, I agree that these matters are irrelevant to the proper determination of issues under s85(a), and I would add, to the broader exercise facing the Tribunal, excluding of course, any arguments of improper purpose.’

13

The appellants' application to the council was an application to which the LUPA Act, s51, applied. By virtue of s51(2)(a), the council was required to seek to further the objectives of the resource management and planning system of Tasmania, which were set out in Sch1 to the LUPA Act. Part 1 of that schedule contained the following:

‘1 The objectives of the resource management and planning system of Tasmania are —

  1. (a) …; and

  2. (b) to provide for the fair, orderly and sustainable use and development of air, land and water; …’.

14

The tribunal was also required to seek to further those objectives. By virtue of theResource Management and Planning Tribunal Act 1993 (‘the RMPAT Act’), s5(3), the tribunal is part of the State's resource management and planning system. The same objectives are set out in Sch1 to that Act.

15

It follows that, when this matter was before them, the council and the tribunal were each required to seek to further the objective of providing for the ‘fair’ and ‘orderly’ development of land.

16

In my view the evidence as to the financial consequences of providing public road access through the subdivision to 512 Nelson Road was relevant to the determination of the subdivision application because it related to the question whether a requirement to provide such access would be fair or unfair. It was open to the council and the tribunal to conclude that, in all the circumstances, putting the appellants in a position where they could not subdivide without providing road access to the...

To continue reading

Request your trial