R v Resource Planning and Development Commission; Ex parte Dorney (No 2)

(2003) 12 Tas R 69; [2003] TASSC 69

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review at common law
3. › Procedural fairness
4. › Exclusion of rules of natural justice
5. › Under legislation
6. › Town planning
7. › Draft amendment to planning scheme
8. › Hearing as to representations
9. › Whether common law duty of procedural fairness excluded by statutory scheme
10. › Whether radically new proposal emerging after hearing required notification to affected landowners
11. › Land Use Planning and Approvals Act 1993 (Tas), ss 38, 39(1), 40
12. › Resource Planning and Development Commission Act 1997 (Tas), s 10(1)(b)(v)
1. Administrative Law
2. › Prerogative writs and orders
3. › Certiorari
4. › Practice
5. › Tasmania
6. › Effect of Judicial Review Act 2000
7. › Quashing orders in lieu of certiorari
8. › Judicial Review Act 2000 (Tas), s 43
9. › Supreme Court Rules 2000 (Tas), r 627(2)(a)
1. Environment and Planning
2. › Environmental planning
3. › Planning schemes and instruments
4. › Tasmania
5. › Amendments to planning schemes
6. › Alteration of proposed amendments
7. › Whether changes constituted modification or alteration to substantial degree
8. › Whether changes so radical as to transform draft amendment into something different
9. › Land Use Planning and Approvals Act 1993 (Tas), s 41(a)
1. Environment and Planning
2. › Environmental planning
3. › Planning schemes and instruments
4. › Tasmania
5. › Compensation
6. › Land set aside for public purpose
7. › Whether zoning restrictions prohibiting all uses other than passive recreation constituted setting aside for public purpose
8. › Whether 'public purpose' refers to intended future use of land or planning considerations motivating restrictions
9. › Land Use Planning and Approvals Act 1993 (Tas), s 66(1)(a)

Quick Take

The common law duty of procedural fairness applies to the Resource Planning and Development Commission (not councils) in the context of planning scheme amendments under the LUPA Act. Where a radically new and unexpected proposal emerges after a s40 hearing, the Commission must notify affected landowners and afford them an opportunity to respond before making a decision. The term 'set aside for a public purpose' in s66(1)(a) refers to the intended future use of the land, not the planning considerations motivating zoning restrictions; severe restrictions on private rights alone do not constitute setting aside for a public purpose. Changes to a draft amendment that designate all uses except passive recreation as prohibited across a large area of suburban land constitute an alteration to a substantial degree, not a mere modification.