The correct way for Councils to determine an application for planning approval

A timely reminder from Pielage v Launceston City Council

Background

In February this year, the Tasmanian Supreme Court reviewed a decision of the Resource Management and Planning Appeal Tribunal (RMPAT).

The RMPAT’s decision concerned whether or not the Launceston City Council (Council) had failed to determine an application for a planning permit through a series of tied votes.

The substance of the 2 motions were that the:

  1. application for planning approval be approved subject to specified conditions; and
  2. recommendation of refusal made by the Council’s Director of Development Services be adopted.

The voting on both motions was tied. R.28(4) of the Local Government (Meeting Procedures) Regulations 2015 provides that a tied vote results in a motion being determined in the negative.

Council took the view that it had failed to determine the relevant application because it had, in effect, neither approved nor refused the application because:

  • the first motion to grant a permit was lost – i.e. a permit was not granted; and
  • the second motion to refuse planning approval was also lost – i.e. the application was not refused.

Council subsequently gave notice to the applicant pursuant to s.59(2) of the Land Use Planning and Approval Act 1993 (Act) and the applicant then applied to the RMPAT under s.59(3) of the Act for an order determining the conditions on which the permit is granted (i.e. the ‘deemed approval’ process).

It is at this point that the RMPAT, of its own motion, took the view that the first tied decision of the Council constituted a deemed refusal of the application, therefore the provisions of s.59 of the Act were not applicable.

This decision was then appealed to the Supreme Court, the primary contention being that:

“a refusal of an application to grant a permit can only occur as a result of the passing of a positive motion to refuse the development application, and that the tied votes in this case were insufficient to determine the application.” 1

The Decision

The Court held that the RMPAT had erred in concluding that the first motion constituted a deemed refusal. The reasoning of the Court can be summarised as follows:

  • when determining issues of this nature the terms of the relevant motion must be carefully considered;
  • the determination of the first motion in the negative meant that the application would not be approved on the specified conditions – i.e. the permit was not granted on the proposed conditions and this left open the question of whether it would be approved, and if so subject to what (if any) conditions; and
  • the second motion did not cure the issue; it amounted to no more than a decision not to refuse the application – i.e. the permit was not refused.

Key to the Court’s reasoning in this matter is the principle that the decision to grant a permit and the consideration of what planning conditions to attach to that permit are part of a single integrated process. 2  It is for this reason that the Court held that the first motion could not amount to a deemed approval, i.e. no successful decision had been made with respect to the conditions (if any) of approval.

Summary

The key points to take away from this decision are:

  • it is a timely reminder of the operation of R.28(4) of the Local Government (Meeting Procedures) Regulations 2015; i.e. a tied vote results in a motion being determined in the negative;
  • the decision to grant a permit and the consideration of what planning conditions to attach to that permit are part of a single integrated process and this should be considered when crafting motions to avoid, in the case of a refusal, leaving open the possibility of a permit being granted on other or different conditions (as occurred with the Council’s first motion); and
  • as a general rule, motions with respect to the granting of planning approval (with or without conditions), should be expressed in the positive. If such a motion is carried, Council will have determined to grant planning approval. If such a motion is lost, Council will have determined to refuse planning approval.

If you have any queries or would like to discuss any of these issues, please contact:

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

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

1  Pielage v Launceston City Council [2019] TASSC 1 at [6]

2  Meander Valley Council v RMPAT [2013] TASSC 42, 23 Tas R 14

 

Published: 17 April 2019

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