Local government – case law update

The Supreme Court of Tasmania has recently handed down two decisions which impact upon local government. Summaries of those decisions are set out below.

Hobart City Council v Picone [2016] TASFC 11

This decision concerned the construction of s.57(5) of the Land Use Planning and Approvals Act 1993 (LUPAA).

The owner of land which neighboured land owned by Mr and Mrs Picone made application to the Hobart City Council (Council) for discretionary planning approval. Mr and Mrs Picone wished to make a representation in response to the application, however that representation was lodged 1 day after the 14 day representation period had closed. Mr and Mrs Picone’s solicitors wrote to the Council seeking an extension of the 14 day period, citing s.57(5) of the LUPAA as a provision which permitted such an extension to be granted.

Council refused to grant the extension, advising Mr and Mrs Picone that it did not have the power to do so. Mr and Mrs Picone successfully appealed that decision via judicial review proceedings in which the Supreme Court held that the Council did have the power to grant the extension using s.57(5).

That decision was affirmed on appeal to the Full Court of the Supreme Court.

The upshot of the 2 cases is that:

  1. the power afforded by s.57(5) of LUPAA is intended to be a wide and general power, exercisable in a variety of circumstances, which allows a council to extend the relevant timeframe for no longer than a further period of 14 days; and
  2. the power can be exercised either before or after the closure of the first 14 day period.

This decision is significant because exercising the discretionary power in s.57(5) to allow a representation that would otherwise be out of time, grants appeal rights under s.61(5) of the LUPAA that otherwise would not arise.

Latrobe Council v Sheehan [2017] TASSC 18

This decision concerned the correct method of complying with the notification requirement in s.133(2) of the Local Government Act 1993 (LG Act), a provision concerned with the recovery of rates.

Latrobe Council (Council) served an abatement notice on Mr and Mrs Sheehan requiring them to do certain work in relation to their house in Latrobe. Council alleged that Mr and Mrs Sheehan did not comply with the abatement notice. The General Manager of the Council had the necessary work done and Council charged Mr and Mrs Sheehan for the cost of that work. Mr and Mrs Sheehan did not pay those costs and Council took proceedings in the Magistrates Court to recover the debt.

The Magistrates Court dismissed the Council’s claim, citing a failure to comply with the notification requirements prescribed in s.133(2) of the LG Act. That decision was appealed to the Supreme Court which dismissed the appeal.

The upshot of the decision is that:

  1. S.133(2) and (3) of the LG Act prevent a council from suing a ratepayer for a debt in reliance upon s.133(1) without first giving the ratepayer 14 days’ notice of its intention to do so;
  2. the underlying policy of S.133(2) and (3) of the LG Act is that ratepayers must be given at least 14 days’ warning of a council’s intention to institute court proceedings so that they have a reasonable opportunity to pay the amount claimed without court proceedings being instituted against them;
  3. it would be inconsistent with that underlying policy for a council to give notice under s.133(2) before the relevant debt has been either incurred or the amount quantified – section 133(2) should be interpreted as applying only to debts that have been quantified and have become payable; and
  4. no particular form of words needs to be used when a council gives notice in writing pursuant to s133(2). Any form of words that informs the debtor that the council proposes to sue to recover the debt must be sufficient.

This decision is significant because it:

  • clarifies the operation of s.133(2) as a pre-requisite to a council recovering a debt in reliance on the power in s.133(1) of the LG Act; and
  • provides clear guidance for the timing of a s.133(2) notice – i.e. after the relevant debt has been quantified and become payable.

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

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

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

Published: 11 April 2017

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