Criminal Law – Evidence – Confessions and admissions – Statements – Admissions by accused or counsel at trial and after conviction – Prosecution for use of land without planning permit – Issue whether use of land for operation of mobile coffee cart was incidental to permitted use for motel – Concession by defence counsel that planning permission was necessary for use for coffee cart operation.

Evidence Act 2001 (Tas), s 184.
Stubley v Western Australia [2011] HCA 7, 242 CLR 374, referred to.
Aust Dig Criminal Law [2758]

Environment and Planning – Environmental planning – Planning offences – Use of land contrary to planning scheme – Mobile coffee cart operated without permit – Whether a use of land – Whether incidental to use of land for motel.

Land Use Planning and Approvals Act 1993 (Tas), s 51(1).
Aust Dig Environment and Planning [266]

REPRESENTATION:

Counsel:
             Appellants:  N Davidson, J Bloomfield
             Respondent:  S B McElwaine SC
Solicitors:
             Respondent:  Simmons Wolfhagen

Judgment Number: [2020] TASFC 7
Number of paragraphs: 51

Serial No 7/2020
File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),
SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE
v KINGBOROUGH COUNCIL

REASONS FOR JUDGMENT FULL COURT
BLOW CJ
BRETT J
GEASON J
20 October 2020

Order of the Court

Appeal dismissed.

Serial No 7/2020
File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),
SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE
v KINGBOROUGH COUNCIL

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
20 October 2020

I agree with Brett J.

File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),
SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE
v KINGBOROUGH COUNCIL

REASONS FOR JUDGMENT FULL COURT

BRETT J
20 October 2020

In 2018, the appellants, Anthony and Deborah Gamble, who are the owners of the Kingston Motel, allowed the appellants, Shelley Slaghuis and Ritchie Paine, to set up and operate their mobile coffee cart on the motel property. They received no payment for doing so, but gained the advantage of customers of the motel being able to utilise and access the coffee cart. The cart was located near the boundary of the property and was accessible to members of the public. The owners of the motel provided some chairs, an awning and artificial turf to be used in conjunction with the coffee cart.
Before commencing operations, Ms Slaghuis, on the advice of representatives of the respondent, obtained a certificate of registration under the Food Act 2003. However, neither the owners of the motel nor the operators of the business applied for planning…

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.

Continue reading Gamble v Kingborough Council

Details

AGLC: Gamble v Kingborough Council [2020] TASFC 7
Case: [2020] TASFC 7
Decision Date: 20 October 2020

CaseChat Overview and Summary

In *Gamble v Kingborough Council*, the Supreme Court of Tasmania, constituted by Blow CJ, Brett J, and Geason J, considered an appeal concerning the use of land for the operation of a mobile coffee cart. The central dispute revolved around whether this use was incidental to the permitted use of the land as a motel, or if it required separate planning permission. The defence had conceded at trial that planning permission was necessary for the coffee cart operation.

The primary legal issue before the Full Court was whether the concession made by defence counsel regarding the necessity of planning permission for the coffee cart operation was binding on the appellant. The Court was required to determine the legal effect of this concession and whether it precluded the appellant from arguing that the coffee cart operation was, in fact, incidental to the motel's permitted use.

The Court reasoned that a concession made by counsel during proceedings, if clear and unequivocal, is generally binding on the client. In this instance, the concession was found to be explicit and unambiguous, effectively admitting that planning permission was required for the coffee cart's operation. Consequently, the Court held that the appellant was bound by this concession and could not subsequently challenge the necessity of planning permission. The appeal was dismissed.

Orders