Council, does your planning scheme contain an ‘infinite’ assessment?

Background

Meander Valley Council granted planning approval to Teen Challenge Inc. to convert and use the former Meander Valley Primary School as a residential rehabilitation centre for women and children.

Timber World Pty Ltd appealed this decision to the Resource Management and Planning Appeal Tribunal. The Tribunal determined that it lacked jurisdiction to proceed to deal with the appeal (Timber World Pty Ltd v Meander Valley Council and Teen Challenge Inc [2017] TASRMPAT 37).

Council appealed that decision to the Supreme Court. The Supreme Court identified various errors in the Tribunal’s decision and returned the matter to the Tribunal (Meander Valley Council v RMPAT [2018] TASSC 9).

In August 2019, the Tribunal convened a hearing to determine the proposal.

The issue – was the relevant control ultra vires?

Timber World’s grounds of appeal concerned whether or not the proposal complied with a discretionary planning control in Code E1.0 Bushfire-Prone Areas Code of the Meander Valley Interim Planning Scheme 2013. The control concerned a performance criteria for vulnerable use in bushfire-prone areas.

At the conclusion of the hearing Council queried the validity of part of the contested planning control. The relevant part provided that, where a vulnerable use is proposed in a bushfire prone area, it must be demonstrated that there is no suitable alternative site with a lower-risk.

The crux of Council’s argument was that:

  • a detailed comparative analysis of all potential, lower-risk sites was required to demonstrate compliance; and
  • such a task was infinite in its scope.

The questions before the Tribunal were:

  • is the relevant part of the control so vague and so uncertain in its operation that it is not a lawful exercise of the delegated power set out in the Land Use Planning and Approvals Act 1993 and therefore ultra vires?
  • if the answer to the above is ‘yes’, can that part of the control be severed, allowing the balance to apply?

In considering the first question, noting the decision of Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 the Tribunal observed at [22] that:

“ambiguities and uncertainties arising from the form of expression used in regulations are a matter of construction and interpretation. The different question arises if, after a meaning has been placed on subordinate legislation by these methods, it is found that no certain objective standard has been prescribed. It is in those cases that the subordinate legislation may be ultra vires.”

The Tribunal held that, whilst the meaning of the relevant part of the control was not ambiguous, the scope of the inquiry necessary to apply it was so uncertain that the control was incapable of being applied in an objective sense.

Turning to the question of severance, the Tribunal held that the relevant part of the control operated interdependently with the balance of the contested control and, for this reason, it could not be severed.

The Tribunal dismissed the appeal because the sole planning control relied upon by Timber World was held to be ultra vires, and therefore of no effect.

Practical application

The practical lessons to take away from the Tribunal’s decision are that:

  1. whilst the meaning of a planning control may be clear or capable of being understood, if the extent of the inquiry or exercise necessary to apply the control is too vast (or in this case, an ‘infinite’ exercise) the control may be ultra vires, therefore invalid; and
  2. it is appropriate for a Council to query the validity of provisions in its own planning scheme, and such queries can properly be raised late in a proceeding.

The following link can be used to access the decision:

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/tas/TASRMPAT/2019/3.html

The Tribunal’s decision was recently appealed to the Supreme Court; the outcome of that appeal will be addressed in a future article.

If you have any queries or would like any further information about this article, please contact:

Marc Edwards
Senior Associate
M: 0407 205 719
E: medwards@pageseager.com.au

Anthony Spence
Principal
M: 0400 545 503
E: aspence@pageseager.com.au

Published: 17 October 2019

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