Krulow v Glamorgan Spring Bay Council

[2013] TASFC 11

Tasmania Full Court

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For Australian Law.

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Interrogate

Catchwords

1. Environment and Planning
2. › Civil enforcement proceedings
3. › Resource Management and Planning Appeal Tribunal
4. › Orders under s64 of LUPA Act
5. › Whether orders enforcing permit conditions infringed pre-existing use rights under s20(3)
6. › Whether orders affected by jurisdictional error remain valid until set aside
7. › Land Use Planning and Approvals Act 1993 (Tas), ss 20(3), 63, 64, 65
1. Administrative Law
2. › Jurisdictional error
3. › Inferior tribunals
4. › Whether absence of pre-existing use rights is a jurisdictional fact or condition of jurisdiction
5. › Whether misconstruction of statute by tribunal constitutes jurisdictional error
6. › Application of Craig v South Australia categories to administrative tribunals
1. Administrative Law
2. › Collateral challenge
3. › Prosecution for breach of tribunal order
4. › Whether validity of order is an element of the offence
5. › Whether collateral challenge available as defence to prosecution
6. › Statutory construction of enforcement scheme
7. › Land Use Planning and Approvals Act 1993 (Tas), ss 64(7), 65
1. Equity
2. › Waiver
3. › Waiver of statutory rights
4. › Pre-existing use rights under planning legislation
5. › Whether consent to tribunal orders without asserting pre-existing use rights constitutes waiver
6. › Whether statutory rights conferred for individual benefit may be waived

Quick Take

Civil enforcement orders made by the Resource Management and Planning Appeal Tribunal under s64 of the LUPA Act remain valid and effective until set aside by the Supreme Court on appeal, even if potentially made in breach of the Act, and are capable of founding a prosecution under s64(7). Collateral challenge to such orders is not available as a defence to prosecution. A party who consents to civil enforcement orders without asserting pre-existing use rights under s20(3) waives those rights for the purposes of the orders and any prosecution for their breach. The absence of pre-existing use rights is neither a jurisdictional fact nor a condition of the Tribunal's jurisdiction under s64.