Cai v Launceston City Council - [2024] TASSC 10

[2024] TASSC 10

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Cai v Launceston City Council [2024] TASSC 10
PARTIES:	CAI, Susan
v
LAUNCESTON CITY COUNCIL
TRC MULTI PROPERTY PTY LTD
FILE NO:	2023/587
DELIVERED ON:	15 March 2024
DELIVERED AT:	Hobart
HEARING DATE:	12 March 2024
JUDGMENT OF:	Estcourt J
CATCHWORDS:

Administrative law – Judicial review – Grounds of review – Error of law – Tribunal's interpretation of words in a planning scheme – "directly associated with" and "a subservient part of" – Ordinary and grammatical meaning in light of context and purpose of scheme to be applied – Correct test identified by Tribunal – The question of whether the test was met by the evidence is a question of fact and beyond the scope of an appeal under s 136 of the Tasmanian Civil and Administrative Tribunal Act 2020 – Ground of appeal dismissed.

Tasmanian Civil and Administrative Tribunal Act 2020 (Tas), s 137.
Land Use Planning and Approvals Act 1993 (Tas), s 42.
Kempster v Manning [2006] TASSC 31, considered.
The Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd [2021] TASFC 12, applied.
Aust Dig Administrative Law [1030]

Administrative law – Judicial review – Grounds of review – Error of law – Contention that Tribunal impermissibly narrowed test for classification of uses by failing to consider whether ancillary uses served visitor accommodation in a subordinate capacity – Relevant test correctly identified by Tribunal – Failure to consider relevant considerations not established – Ground of appeal dismissed.

Aust Dig Administrative Law [1030]

Administrative law – Judicial review – Grounds of review – Error of law – Contention that the Tribunal erred by distinguishing the classification of ancillary uses as a separate question from whether the uses were directly associated with and a subservient part of the visitor accommodation use – Classification of ancillary uses not actually in issue before Tribunal – No error of law detected – Ground of appeal dismissed.

Aust Dig Administrative Law [1030]

Administrative Law – Judicial review – Grounds of review – Irrelevant considerations – Contention that Tribunal took into account irrelevant considerations as to commercial utility, star ratings and business needs of visitor accommodation – Considerations of evidence as to nature and quality of visitor accommodation not irrelevant to issues arising in planning appeal – Ground of appeal dismissed.

Aust Dig Administrative Law [1034]
Administrative law – Judicial review – Grounds of review – Error of law – Contention that Tribunal erred in

law in that a finding that unspecified retail use could be approved as a use directly associated with and subservient to visitor accommodation would prevent enforcement of planning permit – Any future retail use not directly associated with or a subservient part of approved visitor accommodation would in any event be a breach of the planning scheme – Ground of appeal dismissed.

Land Use Planning and Approvals Act 1993 (Tas), s 63(2)(a).

Aust Dig Administrative Law [1030]

REPRESENTATION:

Counsel:

Appellant: C Scott

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: [2024] TASSC 10
Decision Date: 15 March 2024

CaseChat Overview and Summary

In the matter of Cai v Launceston City Council, the applicant sought judicial review of a decision made by the Launceston City Council in relation to a planning application. The court was required to determine whether the Council's interpretation of the planning scheme was legally sound, specifically focusing on the phrases "directly associated with" and "a subservient part of." The dispute centred around whether the Tribunal had correctly applied the ordinary and grammatical meaning of these phrases in the context and purpose of the planning scheme.

The primary legal issue was whether the Tribunal had erred in its interpretation of the relevant phrases in the planning scheme. The applicant argued that the Tribunal had misapplied the legal principles in determining the meaning of these phrases. The court was tasked with examining whether the Tribunal's interpretation was legally sound and whether it had followed the correct principles in doing so. Additionally, the court needed to assess whether the Tribunal had correctly determined that the question of whether the evidence met the identified test was a question of fact, thus beyond the scope of an appeal under section 136 of the Tasmanian Civil and Administrative Tribunal Act 2020.

The court found that the Tribunal had correctly identified the test to be applied in interpreting the phrases "directly associated with" and "a subservient part of" within the context of the planning scheme. It held that the ordinary and grammatical meaning of these words, in light of the context and purpose of the scheme, was correctly applied. The court emphasised that the question of whether the evidence met the test was a factual matter, which was outside the scope of an appeal under section 136 of the Act. As a result, the court dismissed the ground of appeal, affirming the decision of the Tribunal.

Orders