Planning Legislation in Tasmania

PLANNING, ENVIRONMENT AND HERITAGE LITIGATION AND LEGISLATION IN TASMANIA

(Address to the Australasian Conference of Planning and Environment Courts and Tribunals by the Hon Justice Alan Blow, Chief Justice of Tasmania, on 5 March 2014)

Tasmania had the first environmental legislation in Australia.  On 10 March 1804, Lieutenant-Governor David Collins issued a General Order – a species of legislative instrument – prohibiting the shooting of any more swans on the River Derwent, saying that “they had been much harassed and disturbed with a consequence this resource might totally fail”.[1]

A lot has changed since then.  The thylacine has become extinct.  The sounds of whales no longer keep the residents of Hobart awake at night.  But there are still swans on the River Derwent, though at some distance from the Hobart CBD.

Litigation about environmental, planning and heritage matters constitutes a significant part of the civil business of the Supreme Court of Tasmania.  Our judges spend about 75 to 80% of their time dealing with criminal cases, including criminal appeals.  As a result of alternative dispute resolution and other innovations, the Court’s workload in the civil jurisdiction is much smaller than it used to be. Although about 250 actions for damages for personal injuries are commenced each year, in 2013 it was only necessary for a judge to assess damages for personal injuries in one case.  And it was only necessary for damages to be assessed in one commercial case. However the judges of the Court published judgments in 12 cases concerning planning, environmental and heritage matters.  That figure does not include two judgments that were published in fisheries cases, which perhaps should be regarded as having environmental significance.

Jurisdiction of the Supreme Court of Tasmania in planning and environmental matters

Generally speaking, the jurisdiction of the Court in planning and environmental matters is supervisory. The Resource Management and Planning Appeal Tribunal (“the RMPAT”) conducts appeals by way of hearings de novo.  There is a right of appeal to the Supreme Court from its appeal decisions, but only on questions of law.[2] Zoning decisions are made by the Tasmanian Planning Commission. Its decisions and those of the RMPAT can be challenged under the Judicial Review Act 2000 – the Tasmanian equivalent of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  There is also a rarely invoked jurisdiction to grant relief in the nature of certiorari, mandamus or prohibition, but not the old fashioned prerogative writs themselves.[3]

Underwood CJ described the role of the Supreme Court in planning matters in Kempster v Manning [2006] TASSC 31 at par[41] as follows:

“This Court exercises a supervisory jurisdiction over the work of the Tribunal. The Court’s job is to ensure that the Tribunal’s decisions are made in accordance with the law. It is not the Court’s job to re-hear an appeal to the Tribunal, nor to substitute its view of the facts for that taken by the Tribunal.”

The Court therefore finds itself hearing cases about such things as procedural fairness, the adequacy of reasons, the meaning (if any) of provisions in planning schemes, jurisdictional error, the statutory consequences of jurisdictional error, the distinction between a modified draft amendment and a substantially new draft amendment, and the rule against sub-delegation.

There is one exceptional situation in which the Court does have jurisdiction to substitute its own view of the facts for that taken by the Tribunal.  The Tribunal has a power to enforce the provisions of planning schemes by making injunctive orders.[4]  There is a separate section conferring a right of appeal to the Supreme Court against orders and decisions made in the exercise of that jurisdiction,[5] and that sort of appeal is not limited to questions of law.[6]

One unavoidable consequence of limiting appeals to questions of law is that there will be appeals where the asserted errors of law are a little removed from the centre of the controversy.  A good example of that phenomenon is to be found in the case of Hobart City Council v Resource Management and Planning Appeal Tribunal (2007) 17 Tas R 137; [2007] TASSC 99. Planning permission was sought for a disused nursing home in a prime residential area to be used by a church group as a low cost boarding house for 27 disadvantaged persons.  Not surprisingly, a large number of representations were made by local residents who did not view the proposal favourably.  The case went as far as the Full Court.  The proceedings there concerned the adequacy or inadequacy of the Tribunal’s reasons for a permit condition reducing the number of on-site parking spaces pursuant to a discretionary provision in the planning scheme.  If one may only argue about questions of law, a determined appellant may end up having to concentrate on non-core gripes.

However the vast majority of planning and environmental cases do not involve concentration on side issues or peripheral points.  It would be wholly inappropriate for judges to be reviewing planning decisions on their merits rather than exercising a supervisory jurisdiction.  It would be unconstitutional for the Court not to have a supervisory jurisdiction over the Tribunal.[7] It follows that a supervisory jurisdiction limited to questions of law is the most appropriate arrangement. The odd case about a side issue or a peripheral point is therefore something that simply has to be tolerated.

No restrictions as to standing to object or appeal

Another important aspect of Tasmania’s planning legislation is that there are no restrictions on the classes of persons who may participate in relation to applications for planning permits by making representations and instituting appeals.  When an application is made to a council or some other planning authority for a discretionary planning permit, s57(5) of the Land Use Planning and Approvals Act 1993 permits “any person” to make representations relating to the application.  If the permit is granted, s61(5) of that Act permits any person who has made such a representation to appeal to the RMPAT.  And any party to an RMPAT appeal may appeal to the Supreme Court on a question of law.[8]

Tasmania’s legislation in relation to environmental and planning matters was rewritten in 1993 and 1994.  Each of the relevant statutes contains, in a schedule, a list of the objectives of the “Resource Management and Planning System of Tasmania”.[9]  One of those objectives is stated to be, “to encourage public involvement in resource management and planning”.  Whilst an open door policy in planning litigation has its disadvantages, there are two important advantages that should not be overlooked.  One is that the Tribunal and the Court do not have to spend time dealing with arguments as to the standing of individuals and organisations, and as to whether or not they have a right to participate in the proceedings.  Secondly, as Stephen J observed in Scurr v Brisbane City Council[10] it relieves decision-makers of another burden.  Speaking of a similar provision in a Queensland statute, his Honour said this:

“It provides the council with the views of those who oppose an application; written grounds of objection will be before it, supported by relevant facts and circumstances and it will thus be relieved of the special burdens associated with decision-making when only one side of the argument is known.”

Legislation giving “any person” the right to make a representation relating to an application for planning approval, and giving any person who has made such a representation a right of appeal, has existed in Tasmania since 1975.[11]

Statutory objectives

The list of objectives of the Resource Management and Planning System of Tasmania has been regarded as significant in a number of Supreme Court cases.  The list reads as follows:

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

(a)  to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

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

(c)  to encourage public involvement in resource management and planning; and

(d)  to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e)  to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.”

The Land Use Planning and Approvals Act 1993 also contains a second list of objectives – the objectives of the planning process – but that list has not received much attention in the judgments of the Supreme Court.  However items in the list of objectives of the Resource Management and Planning System have been taken into account in cases relating to the identification of relevant and irrelevant considerations, statutory interpretation, and the Court’s discretion to order security for costs.

The Full Court considered item (b) in the list of objectives – “to provide for the fair, orderly and sustainable use and development of air, land and water”[12] – in Smith v Hobart City Council (2010) 177 LGERA 444; [2010] TASFC 9.  That was an appeal which, in part, concerned fairness and orderliness.

The appellants in that case wished to subdivide some land in the leafy Hobart suburb of Mount Nelson.  Their land was adjacent to a parcel of land that was large enough to be subdivided, but which did not have a frontage onto a public road, though it did have the benefit of two rights of way leading to public roads.  That adjacent land had a somewhat unfortunate history.  In 1964 the council’s Town Planning Committee approved a road layout for the area.  Unfortunately, 44 years later, the council was unable to find any record as to what that committee approved at that meeting.  In 1972, there was a subdivision that left the adjacent land without a public road frontage.  The town clerk wrote a letter at that time saying that alternative road access would become available from adjoining properties in line with the road layout approval of 1964.  A new planning scheme came into force in 1982, but it made no provision for any direct road access to the property in question.  In 2006 the owner of that property applied for a permit for a subdivision.  That application was neither granted nor refused.  It remained “stalled” because of the road access problem.

When Mr and Mrs Smith applied for a subdivision permit for their land in 2008, the council refused their application for a number of reasons, one of which was that it considered that they should provide public road access to the adjacent land. The Tribunal reversed the council’s decision. A single judge set aside the Tribunal’s decision, and remitted the matter to it.[13]  Amongst other things, his Honour held that the Tribunal had taken into account two considerations which he held to be irrelevant – the fact that the neighbour’s access problems resulted from earlier planning decisions of the council, and the fact that providing access to the adjoining land would impose a significant financial impost on the appellants and confer a financial advantage on their neighbour.[14]

The Full Court took the view that the council and the Tribunal were each required to seek to further the objective of providing for the fair and orderly development of land.  The Full Court therefore varied the order of the primary judge by adding a direction to the Tribunal to the effect that it was required to treat as relevant considerations the past planning decisions and the financial consequences of providing public road access to the adjacent land.

It was of course a matter for the Tribunal to reach its own conclusion as to the most preferable outcome, but I did venture to comment[15] that, “In view of the evidence as to the forgotten committee decision of 1964, the ad hoc landlocking … in 1972, the failure to solve the landlocking problem in an orderly manner when the new planning scheme was created in 1982, and the stalling of the 2006 subdivision application … for several years, the arguably opportunistic decision to try to make the appellants solve their neighbour’s problem might not be seen as consistent with orderly development.”

Item (e) in the list of statutory objectives – “to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State” – was taken into account by the Full Court in a case in 2007.[16] The case concerned a proposed beachside subdivision on the east coast of Tasmania.  One of the questions considered by the Full Court was whether the council and the Tribunal were obliged to consider the provisions of an instrument called the State Coastal Policy.  The majority took the view that local government was one of the “spheres of Government” referred to in item (e); that the legislation should be interpreted as imposing an obligation upon councils to apply the relevant parts of relevant State policies in their discretionary decision-making as to planning permits; and that the relevant provisions of State policies were relevant considerations that the Tribunal was obliged to take into account.[17]

In that litigation an impecunious incorporated association had appealed against a decision of the RMPAT in favour of the developers.  Before that appeal was heard by a single judge, the developers and their architect applied for an order that the association give security for costs.  I refused that application.[18]  In doing so, I took into account items (a), (c) and (e) in the list of statutory objectives:

“(a)  to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity;

(b)  …;

(c)  to encourage public involvement in resource management and planning; and

(d)  …

(e)  to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.”

I commented as follows[19]:

“… the taking of responsibility for resource management and planning by the community, in accordance with the intention of Parliament, is facilitated by the formation of community organisations concerned with the protection of the environment.  For such organisations to serve their purpose, it will be necessary for them to make representations to councils and to initiate and take part in appeals to the Tribunal.  Since the Tribunal is not infallible, there is nothing inherently inappropriate in such an organisation, even an impecunious one, pursuing its objectives by appealing from a decision of the Tribunal.”

In 2012 the objective of providing for the fair and orderly development of land, contained in item (b) of the list of objectives, was taken into account in a Full Court case concerning the interpretation of the Resource Management and Planning Appeal Tribunal Act 1993: Purton v Jackson [2012] TASFC 2. That appeal concerned a dispute with an unfortunate history, during which the Tribunal received a notice of appeal, delivered a decision holding that it had no jurisdiction, and delivered a second decision, 18 months after the first, holding that it did have jurisdiction.[20] There was an appeal to the Supreme Court, raising the question of whether it was to be implied from the provisions of the Resource Management and Planning Appeal Tribunal Act 1993 that a decision of the Tribunal tainted by jurisdictional error would be a nullity, or that such a decision would have full effect unless and until it was set aside.  There was no statutory provision that expressly covered the situation.  At first instance, Wood J held that the Tribunal did not have the power to reverse its earlier decision, commenting that “Objectives of certainty and finality are embedded in the legislative scheme.”[21]

Her Honour’s decision was upheld by the Full Court.  There were a great many statutory provisions that the Full Court regarded as supporting the conclusion that jurisdictional error would not, of itself, render ineffective a decision by the Tribunal disposing of an appeal.  Significantly for present purposes, one of those provisions was the paragraph containing the statutory objectives of fairness and orderliness.  As I said in my judgment at par[24], “The existence of a power on the part of the tribunal to vary or reverse its decisions relating to the use and development of land, possibly years after those decisions are made, would be inconsistent with the statutory objectives of fairness and orderliness.”

In Krulow v Glamorgan Spring Bay Council [2013] TASSC 33, Wood J reached a similar conclusion in relation to the status of an injunctive order made by the Tribunal under s64 of the Land Use Planning and Approvals Act 1993.  That case arose out of a summary prosecution of the operators of a sandstone works. They had been granted a planning permit which contained a condition requiring the installation of a sprinkler system. They failed to install it.  The council obtained an order under s64 requiring them to install the sprinkler system.  They still failed to install it. They were prosecuted for contravening the order. There was a defended hearing in the Magistrates Court.  Defence counsel argued that the prosecutor needed to prove beyond reasonable doubt that the injunctive order was valid; that that meant that there had to be proof beyond reasonable doubt that the planning permit was valid; and that that meant that there had to be proof beyond reasonable doubt that the landowners did not have pre-existing use rights at the time when the permit was granted.  They were found guilty.  On a motion for the review of their convictions, Wood J held that the injunctive order was immune from collateral challenge, quoting was said in the Full Court in Purton v Jackson about the statutory objectives of fairness and orderliness. There was an appeal from her Honour’s decision to the Full Court.  It was unsuccessful.[22]  The principal judgment was delivered by Estcourt J who concluded, at par[168], that the principles underlying the Full Court’s decision in Purton v Jackson were determinative of the appeal.

Exemptions from the Resource Management and Planning System

There are some situations in which land is exempt from the Resource Management and Planning System of Tasmania and its laudable objectives.  One such situation exists when a piece of land is declared to be a private timber reserve pursuant to s11(1) of the Forest Practices Act 1985.  When such a declaration is made, the provisions of a planning scheme do not apply to forestry operations on the land in question.[23]  As a result, the only controls on forestry in such reserves are controls pursuant to forestry legislation.

The system for creating private timber reserves is set out in the Forest Practices Act 1985.  That Act includes provisions for objections and appeals. An application to have land declared as a private timber reserve is made by the landowner to the Forest Practices Authority: s5.  Such applications are publicly advertised: s6.  Not everyone has the right to object to such an application.  Objections may be made by local councils, State authorities, persons with legal or equitable interests in the land or the timber on it, and owners of land adjoining, or within 100 metres of, the boundary of the proposed private timber reserve: s7.  There is a right of appeal to the Forest Practices Tribunal: s9(1). The Tribunal reviews decisions on their merits.  It can dismiss an appeal, quash a decision, or give directions to the Forest Practices Authority about a decision: s9(6).  It has power to make “such order as to costs as it thinks necessary”: s37(13).  Decisions of the Tribunal can be reviewed under the Judicial Review Act 2000, but such applications are rare, and I am not aware of any successful application for judicial review of one of its decisions.

Another well known exception to the Resource Management and Planning System of Tasmania exists in relation to the proposal by Gunns Limited for a pulp mill in northern Tasmania.

In November 2004 that project was declared to be a “project of State significance” pursuant to s18 of the State Policies and Projects Act 1993.[24]  The effect of such a declaration is that the provisions of statutes and planning schemes as to approvals, permits, the imposition of conditions, and so forth do not apply.[25]  However the State Policies and Projects Act 1993, s20, still requires the Tasmanian Planning Commission, previously known as the Resource Planning and Development Commission (“the RPDC”), to undertake an assessment of the project.  On 14 March 2007 Gunns Limited advised the then Premier, the Hon Paul Lennon, that they were withdrawing from the RPDC assessment process because of financial pressure directly related to the RPDC being unable to give a definite end date for its assessment.[26]  As a consequence, the Parliament enacted legislation – the Pulp Mill Assessment Act 2007 – which took the assessment process out of the hands of the RPDC and gave that role to the Parliament.  The Parliament subsequently approved the project and passed resolutions which resulted in a “Pulp Mill Permit” coming into effect on 30 August 2007. The 2007 Act contained a provision saying that that permit lapsed if the project was not “substantially commenced” within four years of the permit coming into force: s8(4).

Four years later, a dispute arose as to whether substantial commencement had occurred.  An association named Tasmanian Conservation Trust Inc brought an action against Gunns Limited seeking declarations which, if granted, would at least arguably have left Gunns Limited in need of new permits and/or new legislation.  That litigation was still pending when Gunns went into receivership.  Gunns had unsuccessfully sought security for costs, asserting impecuniosity on the part of the plaintiff association.[27]

In February of this year, legislation was enacted to amend the time limit for the substantial commencement of the project.  It has been extended from four years to ten years.[28]  As far as I know the Tasmanian Conservation Trust has shown no sign of wanting to proceed any further in its action for declarations.

Another piece of special legislation that had an impact on litigation in the Supreme Court of Tasmania was the Parliament Square Planning Permit Act 2012.  The history of the litigation that led up to this legislation is somewhat unfortunate. The Government proposed the redevelopment of a site behind Parliament House.  The proposal involved the demolition of a State Government office building at 10 Murray Street, and of the former Government Printing Office, at 2–4 Salamanca Place. A developer was engaged to demolish those buildings and build a new office building.  A planning permit was granted.  The Government Printing Office was an art deco building, and had been entered in the Heritage Register pursuant to the Historic Cultural Heritage Act 1995. The Tasmanian Heritage Council approved its demolition.  Two members of the public appealed to the RMPAT against the granting of both the planning permit and the Heritage Council’s approval.  Their appeals were unsuccessful.[29]  One of the unsuccessful appellants appealed to the Supreme Court, and was partly successful.[30]  Porter J remitted the matter to the Tribunal for reconsideration, but only in relation to the proposed demolition of the building in Salamanca Place.  There was no direction for the Tribunal to be differently constituted.  There was a further hearing before the same three members, and they again affirmed the original decisions of the planning authority and the Heritage Council.[31]

There was a second appeal to the Supreme Court, relating only to the affirming of the decision of the Heritage Council and only to the building in Salamanca Place.  The appeal concerned a very restrictive legislative provision that governed works applications in respect of places registered under the Historic Cultural Heritage Act 1995.  The section[32] read as follows:

“The Heritage Council or planning authority may only approve a works application in respect of works which are likely to destroy or reduce the historic cultural heritage significance of a registered place or a place within a heritage area if satisfied that there is no prudent and feasible alternative to carrying out the works.”

The “no prudent and feasible alternative” test had also existed under the Australian Heritage Commission Act 1975 (Cth), s30(1), but that Act had been repealed, and that test no longer has a place in the relevant Commonwealth legislation.  When the first appeal came before the Court, Porter J held that the Tribunal had erred in its approach to that test.  When the second appeal came before the Court, I held that the Tribunal had failed to give adequate reasons in its second decision for the conclusion that it had reached as to the “no prudent and feasible alternative” test.  I made an order setting aside the Tribunal’s second decision, and adjourned the matter for further submissions.[33]  Counsel for the developer subsequently submitted that I should not have set the Tribunal’s second decision aside, but should have required the three members to produce a third and better set of reasons. I reserved my decision as to that submission. About three weeks later, the Government introduced legislation that was designed to bring that litigation to an end.  It passed both Houses within a week.  It gave effect to the planning permit, extinguished the rights of appeal, and exempted the Salamanca Place land from the heritage legislation.[34]

Subsequently the Historic Cultural Heritage Act 1995 was amended to get rid of the “no prudent and feasible alternative” test.  The amendments took effect on 1 March 2014.[35]  In substance, when there is a proposal for demolition or renovations in relation to a place on the Tasmanian Heritage Register, the Tasmanian Heritage Council now has discretionary powers to veto the issue of a planning permit, or to require the imposition of conditions on one, or to express a lack of interest.

In the relevant second reading speech[36], the Minister for Heritage, the Hon Brian Wightman MHA, said the following about the relevant amendments:

“The most significant amendments are contained in Part 6 of the Bill.  These deal with works to places that are entered on the Tasmanian Heritage Register.  This Part is to be repealed and replaced with provisions which will simplify processes for property owners and developers, reduce red tape and streamline the approval process for works to heritage listed places.

The amendments have been developed and refined in association with the Local Government Association of Tasmania and some of our finest planners in Local Government. I thank these people for assisting in creating greater alignment between our heritage legislation and the Land Use Planning and Approvals Act 1993.

I am pleased that these amendments will finally realise the original intention of the legislation when it was introduced in 1995 …”.

Of course the heritage significance of a place remains a very important consideration for the Tasmanian Heritage Council to take into account.  Similarly, councils will still have to take the heritage significance of places into account when making decisions in relation to planning permits.  One of the items required to be taken into account in the list of “objectives of the planning process” set out in Schedule 1 to the Land Use Planning and Approvals Act 1993 is:

“(g)  to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value”.

Conclusion

In this State special legislation relating to specific developments is very rare, as it should be.  Very few proposed projects have been declared to be projects of State significance in the 20 years that the State Policies and Projects Act 1993 has been in force.  Some of the more controversial projects that have been the subject of declarations under that Act have not proceeded.  Nearly all major developments are dealt with in accordance with the routine procedures of the Tasmanian Planning Commission, local councils, the Tribunal, and the Court.  Most appeals to the Tribunal are resolved by means of consent decisions, often after mediation.  In the past the Tribunal has dealt with anything up to 108 defended hearings per year, but that figure has been gradually declining. Last financial year it dealt with only 17 defended hearings.  This may in part be a consequence of a decline in commercial activity, but it also tends to suggest that mediation processes are gaining in strength, and that the quality of decision-making at lower levels is improving.

As this voyage through some of the recent planning cases in our Supreme Court and the related legislation has shown, things have got a lot more complicated since Lieutenant-Governor Collins forbade the shooting of swans.  However the essential objectives remain much the same, and it is not my place to offer an opinion as to how well they are being fulfilled.  I only have the relatively straightforward task of deciding from time to time whether decision-making accords with the law.