Supplementary Agenda of City Planning Committee Meeting

Item No. 8.3

Supplementary Agenda (Open Portion)

City Planning Committee Meeting

Page 3

16/1/2017

Memorandum: City Planning Committee

HOBART CITY COUNCIL v PICONE
10 BIRNGANA AVENUE, SANDY BAY
DECISION OF THE FULL COURT
OF THE SUPREME COURT OF TASMANIA

Introduction

The purpose of this memorandum is to advise Aldermen of a decision of the Full Court of the Supreme Court of Tasmania relating to a planning application at
10 Birngana Avenue, Sandy Bay (PLN-16-00045-01), and to make subsequent recommendations.

Background

Aldermen may recall previous advice provided in relation to this planning application by memorandum dated 7 October 2016. In summary, the following has occurred:

· A representation in relation to planning application PLN-16-00045-01 was submitted on the day after the application’s 14 day statutory notification period finished. An application to extend that notification period by one day (to enable the representation to be given statutory status) pursuant to section 57(5) of the Land Use Planning and Approvals Act 1993 accompanied the representation.

· The Council advised the respresentor’s legal representative that the Council had no power to grant a retrospective extension to the application’s notification period;

· That advice was the subject of proceedings before the Supreme Court of Tasmania;

· Contrary to submissions made by the Council’s legal representative, the Supreme Court ruled on 7 October 2016 that the Council does have power to grant extensions to the statutory notification periods of planning applications after the initial 14 day notification period has expired;

· Following that ruling, and based on the circumstances of the application in question, Council officers determined under delegation to grant the application to extend the notification period by one day, giving the representation in question statutory status. The representation was then considered as part of the planning application’s assessment. The planning application was approved, appealed by the representor in question (and others), and subsequently mediated. An amended planning permit has been issued.

· Due to concerns relating to the implications of the Supreme Court’s ruling regarding section 57(5) of the Land Use Planning and Approvals Act 1993, the Council appealed that ruling to the Full Court of the Supreme Court of Tasmania.

Decision

On 12 December 2016, the Full Court of the Supreme Court of Tasmania upheld the previous decision of the Supreme Court. That is, in broad terms, the Full Court held that Council can extend the 14 day advertising period even after the period has ended. A copy of that decision forms Attachment A below. The written outline of oral submissions to the Full Court on behalf of the Council by the Council’s legal representative, Shaun McElwaine SC, is also attached at Attachment B.

Discussion

Section 57(5) of the Land Use Planning and Approvals Act 1993 states:

Any person may make representations relating to the application during the period of 14 days commencing on the date on which notice of the application is given under subsection (3) or such further period not exceeding 14 days as the planning authority may allow.

The Full Court of the Supreme Court of Tasmania has held that pursuant to that section, the Council has the power to extend the period for representations after the close of the usual 14 day representation period. This means there will be a period of uncertainty between the end of the 14 day representation period and the end of the additional 14 day period in which an extension may be granted.

The Council’s practice in relation to the statutory notification period for planning applications is for the period to be for 14 days only, and for that length of time to be set before the notification period starts. Prior to the determination detailed above, there is no record of a statutory notification period for a planning application submitted to Hobart City Council being extended beyond 14 days, excepting where that period includes days when the Council’s offices were closed during normal business hours (eg. public holidays). Consistent with the position argued by the Council in the Supreme Court and Full Court, representations submitted after the completion of a 14 day notification period were not given statutory status, were therefore not required to be assessed when determining the planning application, and conferred no subsequent appeal right to the person who made the representation.

The effect of the Full Court’s determination is that if members of the public submit representations up to 14 days after the expiration of a 14 day statutory notification period, the Council must decide whether or not to extend the statutory notification period to accept the representation. While Council officers have a decision-making framework and delegated authority to make this determination if the need arises, the wider implications of the Full Court’s determination needs to be considered.

As required by section 57(3) of the Land Use Planning and Approvals Act 1993 and section 9 of the Land Use Planning and Approvals Regulations 2014, the general public is given notice of planning applications that require public notification via the following means:

· A notice in the local newspaper;

· Display in the Council’s offices;

· Written notice to the owners and occupiers of all properties adjoining the subject site;

· A notice on each public boundary of the site.

Members of the public who become aware of an application are able to view it if they wish and make representations in relation to it if they wish. Prior to the determination of the Full Court, all members of the public had the same amount of time to view an application and make a representation if they wanted to. This was considered to be fair and equitable to both the proponent and members of the public. As a result of the Full Court determination, it is possible for a member of the public to take up to 14 additional days to those prescribed in the 14 day statutory notification period to consider an application, submit a representation to the Council, and (assuming the application’s 42 day determination period hasn’t expired) ask the Council to retrospectively extend the notification period to allow consideration of their representation in a statutory sense. In that scenario, if the Council allows that extension, it would be for that representor only – no additional notice would be provided in the newspaper, on site, in the Council’s office or via letters to neighbours. While it is acknowledged that all individuals are capable of error or forgetting a deadline such as a period within which to make a representation, enabling an individual to have more time to consider an application and make a representation than the remainder of the general public is not considered to be fair or equitable.

From a practical point of view, the ability for an individual to submit a representation up to 14 days after a 14 day statutory notification period has finished will also place additional time demands and pressure upon the planning approval process. Among the scenarios made possible by the determination discussed above, it is conceivable that:

· A Council officer could be finalising a report and permit under delegated authority on the 42^nd day of statutory consideration to determine a planning application that was already subject to two objecting representations (submitted during a 14 day notification period);

· The Council could then receive a representation close to the close of business on that 42^nd day of statutory consideration, but theoretically still within 14 days of the completion of a 14 day statutory notification period;

· The Council would then be forced to determine whether or not to extend the notification period under section 57(5) and give statutory weight to the representation, noting that doing so would change the planning application from one able to be determined via delegated authority to one requiring determination by Aldermen;

· To enable consideration by Aldermen, an extension of time would need to be granted by the applicant. If the applicant was unable to be contacted at such short notice, it is conceivable that the application could be unable to be determined and go ‘out of time’, exposing Council to potential proceedings and costs associated with section 59 of the Land Use Planning and Approvals Act 1993.

Conclusion

While the Full Court has held that the current wording of section 57(5) of the Land Use Planning and Approvals Act 1993 provides the Council with the power to consider and approve an application for an extension of time for the making of a representation received after the statutory notification period has ended, that determination could result in certain members of the public having more time than others to consider planning applications and make representations in relation to them. It is suggested that that possibility does not treat those participating in the planning application process equitably. It is also likely that the determination exposes Hobart City Council to greater levels of legal and financial risk due to potential proceedings and costs associated with section 59 of the Land Use Planning and Approvals Act 1993. As all Tasmanian planning authorities operate pursuant to the Land Use Planning and Approvals Act 1993, the Full Court’s determination has potential implications for all Tasmanian Councils.

It is therefore recommended that the Council pursue legislative change to remove the ability for Council’s to approve extensions to statutory notification periods pursuant to section 57(5) of the Land Use Planning and Approvals Act 1993 once the period has ended by:

· Writing to the Minister for Planning, the Honourable Mr Peter Gutwein MP, in terms of the letter attached as Attachment C;

· Sending a copy of the letter to Minister Gutwein to the Local Government Association of Tasmania (LGAT) and request that LGAT’s members support the Council in pursuing the Government to amendment section 57(5) of the Land Use Planning and Approvals Act 1993.

REcommendation

That:

1. The Council write to the Minister for Planning, the Honourable Mr Peter Gutwein MP, in terms of the letter marked as Attachment C.

2. The Council send a copy of the letter to Minister Gutwein to the Local Government Association of Tasmania (LGAT) and request that LGAT’s members support the Council in pursuing the Government to amendment section 57(5) Land Use Planning and Approvals Act 1993.

As signatory to this report, I certify that, pursuant to Section 55(1) of the Local Government Act 1993, I hold no interest, as referred to in Section 49 of the Local Government Act 1993, in matters contained in this report.

Rohan Probert Signature

Rohan Probert

Manager Development Appraisal

Date: 12 January 2017

File Reference: F17/3439

Attachment a: Decision of the Full Court of the Supreme Court of Tasmania – Hobart City Council v Picone [2016] TASFC 11 ⇩

Attachment b: Written Outline of Oral Submissions (to the Full Court of the Supreme Court of Tasmania) for the Appellant (Hobart City Council) – SB McElwaine SC – No. 2980 of 2016 ⇩

Attachment c: Draft Letter to Minister for Planning and Local Government ⇩