Boland v Clarence City Council - [2021] TASFC 5

[2021] TASFC 5

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Boland v Clarence City Council [2021] TASFC 5
PARTIES:	BOLAND, Christopher
v
CLARENCE CITY COUNCIL
HAND, Marc
FILE NO:	2782/2018
JUDGMENT
APPEALED FROM:	Boland v Clarence City Council [2018] TASSC 43
DELIVERED ON:	29 March 2021
DELIVERED AT:	Hobart
HEARING DATE:	26 August 2020
JUDGMENT OF:	Wood J, Pearce J, Brett J
CATCHWORDS:

Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Interpretation of performance-based planning scheme – Relevance of acceptable solution when making an assessment against corresponding performance criteria – Acceptable solution relevant to assessment of whether impact of proposal on visual amenity is unreasonable.

Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41; Henry Design and Consulting v Clarence City Council [2017] TASRMPAT 11; Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60; BP Australia Pty Ltd v Perth City (1994) 10 SR (WA) 110; Rowell v Clarence City Council [2012] TASRMPAT 94, referred to.
Aust Dig Environment and Planning [52]

Environment and Planning – Environmental planning – Development control – Control of particular matters – Residential – Dwellings and houses – Meaning of "adjoining lots" and "adjoining buildings".

Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Break O'Day Council v Resource Management and
Planning Appeal Tribunal [2009] TASSC 59, 19 Tas R 94, referred to.

Aust Dig Environment and Planning [165]

REPRESENTATION:

Counsel:

Appellant: C Boland
Respondent: A Walker

Solicitors:

Appellant: Chris Boland Lawyers
Respondent: Dobson Mitchell Allport

Judgment Number:	[2021] TASFC 5
Number of paragraphs:	47

Serial No 5/2021

File No 2782/2018

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

REASONS FOR JUDGMENT	FULL COURT WOOD J PEARCE J BRETT J 29 March 2021
Order of the Court:
Appeal dismissed.

Serial No 5/2021

File No 2782/2018

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

REASONS FOR JUDGMENT

FULL COURT
WOOD J
29 March 2021

1 I agree with the reasons for judgment of Brett J. The appeal should be dismissed.
2 No 5/2021

File No 2782/2018

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

REASONS FOR JUDGMENT

FULL COURT
PEARCE J
29 March 2021

2 I agree with Brett J.
3 No 5/2021

File No 2782/2018

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

REASONS FOR JUDGMENT

FULL COURT
BRETT J
29 March 2021

3 The appellant is the owner of a property at Cremorne. The property is located in a residential area, on the corner of Frederick Henry Parade and Cremorne Avenue. It comprises a rectangular block which has an area of 601 square metres, with two buildings, one formerly used as a take-away food shop and service station and the other as a residential dwelling. There are neighbouring residential buildings on both sides, 3 Cremorne Avenue, which shares a full length common boundary with the site, and 1 Frederick Henry Parade,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] TASFC 5
Decision Date: 29 March 2021

CaseChat Overview and Summary

The Supreme Court of Tasmania, constituted by Wood J, Pearce J, and Brett J, considered an appeal concerning the interpretation of a performance-based planning scheme. The dispute arose between Mr. Boland, the applicant, and the Clarence City Council, the respondent, regarding the Council's refusal to grant a permit for a proposed development. The core of the disagreement lay in how the Council assessed the impact of the development on visual amenity under the planning scheme.

The central legal issue before the Court was whether, in assessing a proposal against a performance criterion in a performance-based planning scheme, an "acceptable solution" that corresponds to that performance criterion is relevant. Specifically, the Court had to determine if the Council was entitled to consider the acceptable solution when making its assessment of whether the impact of Mr. Boland's proposal on visual amenity was unreasonable, as required by the relevant performance criterion.

The Court reasoned that in a performance-based planning scheme, acceptable solutions are designed to provide a clear pathway to compliance with performance criteria. While not the sole determinant, an acceptable solution is a relevant consideration when assessing whether a proposal meets a performance criterion. The Court held that the Council was entitled to consider the acceptable solution in its assessment of the proposal's impact on visual amenity. The appeal was dismissed, with the Court affirming the Council's approach to the interpretation and application of the planning scheme.

Orders