Gillard v Launceston City Council
[2024] TASSC 37
•19 July 2024
[2024] TASSC 37
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Gillard v Launceston City Council [2024] TASSC 37 |
| PARTIES: | GILLARD, Peter |
| GILLARD, Maureen | |
| v | |
| LAUNCESTON CITY COUNCIL | |
| CRAIG WEBB PTY LTD | |
| FILE NO: | 1696/2023 |
| DECISION | |
| APPEALED FROM: | Craig Webb Pty Ltd v Launceston City Council [2023] |
| TASCAT 108 | |
| DELIVERED ON: | 19 July 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 31 January 2024 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Environment and Planning – Environmental planning – Development control – Matters for consideration of consent authority – Generally – Matters to be considered – Application for permit for medical centre in residential zone – Discretion to permit use for medical centre – "Use Standards" prescribed for certain relevant considerations – Whether discretion to refuse permit on basis of any other relevant considerations.
Aust Dig Environment and Planning [102]
Case cited:
Clarence City Council v Resource Management and Planning Tribunal [2018] TASSC 41, 232 LGERA 377.
REPRESENTATION:
Counsel:
Appellant: ACR Spence SC, N Billett Second Respondent: N Street
Solicitors:
Appellant: Billett Legal First Respondent: Glynn Williams Legal Second Respondent: Simmons Wolfhagen
| Judgment Number: | [2024] TASSC 37 |
| Number of paragraphs: | 33 |
Serial No 37/2024 File No 1696/2023
PETER GILLARD and MAUREEN GILLARD v LAUNCESTON CITY COUNCIL
and CRAIG WEBB PTY LTD
| REASONS FOR JUDGMENT | BLOW CJ 19 July 2024 |
1 This is an appeal from a planning decision of the Tasmanian Civil and Administrative Tribunal ("TASCAT"). It concerns a property at 108 Elphin Road Newstead. The owner of the property is the second respondent to this appeal, Craig Webb Pty Ltd ("the owner").
2 During 2022 the owner applied to the Launceston City Council in its capacity as a planning authority for a permit for use of the property as a medical centre for a plastic surgery practice. At all material times the property was in the General Residential Zone under the Launceston Interim Planning Scheme 2015 ("the planning scheme"). The council refused the application. The owner appealed from that decision to TASCAT. Before that appeal was heard by the tribunal, the council changed its position. It decided to support the issue of a permit, subject to conditions. It took a neutral position at the tribunal hearing and did not call evidence. The owners of a neighbouring property, Peter Gillard and Maureen Gillard, who are the appellants in the present proceedings, ("the appellants") took on the role of contradictors. They opposed the granting of a permit, were represented by counsel before the tribunal, called evidence, and were unsuccessful. TASCAT made a decision in favour of the owner, making orders for a permit to be granted by the council, subject to conditions: Craig Webb Pty Ltd v Launceston City Council [2023] TASCAT 108. This is an appeal from that decision.
3 The right to appeal to this Court against such a decision of TASCAT is limited to questions of law: Tasmanian Civil and Administrative Tribunal Act 2020, s 136.
4 The council filed a notice of submission and took no part in the hearing of this appeal.
5 In the proceedings before the tribunal, the appellants argued against the granting of a permit
on three grounds:
• They argued that the proposed use did not satisfy cl 10.4.14 of the planning scheme, which related to compatibility with the form and scale of residential development and impact on the amenity of nearby sensitive uses. • They argued that the proposed use did not satisfy cl E4.5.1 of the planning scheme, which related to the safety and efficiency of roads. • They argued that the council had a discretion to refuse the proposed use pursuant to cl 8.8.1 of the planning scheme, and that the tribunal, standing in the shoes of the council, should refuse to permit the proposed use, in the exercise of that discretion. 6 The first and second of those arguments failed. The tribunal held that the proposed use did satisfy cl 10.4.14 and cl E4.5.1. Those findings were not challenged in this appeal.
7 The third of the three grounds was also unsuccessful. In its reasons, at [58] to [73], the tribunal considered the structure of the planning scheme and concluded that cl 8.8.1 did not give it a discretion to refuse a permit. The appellants contend that the tribunal erred in law in reaching that conclusion.
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The provisions of the planning scheme
8 The planning scheme was an example of what is now generally referred to as a "performance- based scheme". In respect of each zone there were zone purpose statements, permitted, discretionary and prohibited uses, use standards, objectives, acceptable solutions, and performance criteria.
9 Clause 7.2.1 of the scheme provided as follows:
"The planning scheme area is divided into zones in respect of which the primary
controls for the use or development of land are set out."
10 Clause 10.2 set out a "Use Table" for the General Residential Zone. In that table there was a list of discretionary uses. That list included "Business and professional services", subject to a qualification reading, "If for a medical centre".
11 Clause 7.5 provided as follows:
"7.5 Compliance with Applicable Standards 7.5.1 A use or development must comply with each applicable standard in a zone,
specific area plan or code.7.5.2 A standard in a zone, specific area plan or code is an applicable standard if:
(a)
the proposed use or development will be on a site within a zone or the area to which a specific plan relates, or is a use or development to which the code applies; and
(b)
the standard deals with a matter that could affect, or could be affected by, the proposed use or development.
7.5.3 Compliance for the purposes of subclause 7.5.1 consists of complying with
the acceptable solution or the performance criterion for that standard.7.5.4 The planning authority may consider the relevant objective in an applicable standard to help determine whether a use or development complies with the performance criterion for that standard."
12 Clause 10.3 prescribed "Use Standards" for the General Residential Zone in respect of five relevant considerations, namely hours of operation, mechanical plant and equipment, light spill and illumination, external storage of goods, and commercial vehicle parking. In respect of each of those matters an objective was stated. For example, in respect of hours of operation, the stated objective was "To ensure that non-residential uses do not cause unreasonable loss of amenity to nearby sensitive uses."
13 In respect of each objective, "Acceptable Solutions" were set out in a left hand column and "Performance Criteria" were set out in a right hand column.
14 By virtue of cl 7.5.1 and cl 7.5.3 (above), a proposed use was required to comply with either an acceptable solution or a performance criterion for each relevant standard. It is common ground that a development application had to be rejected if, in respect of any applicable standard, neither an acceptable solution nor a performance criterion was complied with.
15 In this case either an acceptable solution or a performance criterion was complied with in respect of each of the five Use Standards prescribed by cl 10.3. It should be noted that whilst those Use Standards dealt with five relevant considerations it remained likely that there would be other relevant considerations that were not the subject of Use Standards.
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16 Clause 8.8 of the scheme provided as follows:
"8.8 Discretionary Use or Development 8.8.1 The planning authority has a discretion to refuse or permit a use or development if:
(a) the use is within a use class specified in the applicable Use Table as being a use which is discretionary; (b) the use or development complies with each applicable standard but relies upon a performance criterion to do so; or (c) it is discretionary under any other provision of the planning scheme, (d) and the use or development is not prohibited under any other provision of the planning scheme."
17 In order for cl 8.8.1 to apply, at least one of paragraphs (a), (b) and (c) had to be satisfied, and paragraph (d) also had to be satisfied. In this case, (a), (b) and (d) were all satisfied.
18 Clause 8.10 of the scheme commenced as follows:
"8.10 Determining Applications
8.10.1 In determining an application for any permit the planning authority must, in
addition to the matters required by ss 51(2) of the Act, take into consideration:
(a) all applicable standards and requirements in this planning scheme; and (b) any representations received pursuant to and in conformity with ss 57(5) of the Act, but in the case of the exercise of discretion, only insofar as each such matter is relevant to the particular discretion being exercised.
8.10.2 In determining an application for a permit for a discretionary use the planning authority must, in addition to the matters referred to in subclause 8.10.1, have regard to:
(a) the purpose of the applicable zone …".
19 Clause 10.1.1 set out "Zone Purpose Statements" for the General Residential Zone. They read
as follows:
"10.1.1 Zone Purpose Statements 10.1.1.1 To provide for residential use or development that accommodates a range of dwelling types at suburban densities, where full infrastructure services are available or can be provided. 10.1.1.2 To provide for compatible non-residential uses that primarily serve the
local community.10.1.1.3 Non-residential uses are not to adversely affect residential amenity, through noise, activity outside of business hours, traffic generation and movement, or other off site impacts.
10.1.1.4 To encourage residential development that respects the existing and
desired neighbourhood character.
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10.1.1.5
To encourage residential use and development that facilitates solar access, integrated urban landscapes, and utilisation of public transport, walking and cycling networks."
The discretion question
20 Before the tribunal, the appellants contended that if all applicable Use Standards were satisfied, the council retained a discretion to refuse or permit the proposed use by virtue of cl 8.8.1(a) and the provision as to a medical centre in the Use Table in cl 10.2. They argued that the tribunal was required to have regard to the Zone Purpose Statements in cl 10.1.1, and that the application should be refused on the basis that it was not in harmony with those Zone Purpose Statements.
21 The tribunal rejected that argument. It took the view that if it was satisfied that all applicable Use Standards were satisfied, then a permit had to be granted. In effect, it held that in that situation there was no residual discretion despite the Use Table in cl 10.2 showing "Business and professional services" as a discretionary use subject to the qualification reading, "If for a medical centre". The owner contends that the tribunal was correct.
22 The tribunal relied upon the decision of Brett J in Clarence City Council v Resource Management and Planning Tribunal [2018] TASSC 41, 232 LGERA 377. That case concerned the Clarence Interim Planning Scheme 2015, a very similar performance-based scheme. There was a dispute between two landowners and the Clarence City Council, which had refused subdivision approval because their proposal did not provide for any of their land to be dedicated as public open space. The applicable planning scheme incorporated a council policy document relating to public open space. There was a performance criterion which stated, "Public open space must be provided as land or cash in lieu, in accordance with the relevant Council policy." The Resource Management and Planning Appeal Tribunal concluded that the relevant policy did not require any land or cash to be provided in respect of the proposed development. It held that there was therefore no basis for a requirement to provide for public open space, and that the subdivision should have been approved by the council.
23 On appeal, the Clarence Council argued that there was a discretion to impose a public open space requirement even though the Council policy did not require provision for public open space in the relevant circumstances and the relevant performance criterion was therefore satisfied. It argued that there remained a general discretion to refuse a permit on the basis that provision should have been made for public open space. Brett J rejected that argument. He said the following at [59]:
"When the relevant performance criterion and these provisions of the policy are regarded as a whole, it can be seen that the intended operation of the planning scheme in respect of the taking of public open space in this zone in the event of subdivision, is that the requirement for public open space will be assessed against the policy. The policy is comprehensive and provides a clear basis for the taking of public open space. It would be contrary to the intended operation of a performance-based scheme to proceed in the manner contended for by the appellant, that is, that notwithstanding that the assessment of public open space against the policy leads to a conclusion that public open space ought not be taken, wider planning considerations can justify a contrary outcome. … Such a process has the capacity to lead to unpredictable and arbitrary outcomes and make otiose the performance criterion relevant to the particular objective."
24 That case is distinguishable from the present case. It dealt with a situation where a "Use Standard" provision in a performance-based scheme covered the field in relation to one relevant consideration, namely public open space, leaving no residual discretion in relation to that consideration. In this case, as the tribunal observed at [57], it was contended that the proposed use "would have an adverse effect on residential amenity in respect to matters not specifically addressed by the standards". (My emphasis.)
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25 TASCAT relied upon a comment by Brett J in that case at [56]:
"A performance-based system employs a top down approach, where the various levels of objectives and principles are eventually distilled into a practical test defined by performance criteria and acceptable solutions. This approach provides a reasonable level of predictability which is the intended operation of such a scheme".
26 In this case, the planning scheme prescribed performance criteria and acceptable solutions in relation to five relevant considerations. It thus provided a reasonable level of predictability in relation to those five relevant considerations. But it also made it clear that the use of land in the General Residential Zone for a medical centre was discretionary. In my view the effect of the provisions as to the Use Standards in relation to the five relevant considerations was only to circumscribe the exercise of the discretion. If there were any other relevant considerations that were not the subject of Use Standards, then there remained a discretion.
27 The reasoning which led the tribunal to take a different view appears in the following passage
in its reasons, at [71]:
"… it would be logically inconsistent with Brett J's analysis of the way in which a performance based planning scheme operates, to determine that a use which is discretionary pursuant to cl 8.8.1(b) is to be assessed only by compliance with the relevant standards, while one which is discretionary pursuant to cl 8.8.1(a) is to be assessed for compliance with those standards and also more broadly against the purpose statements. To do so would insert a significant level of uncertainty into the assessment, which would undermine the 'reasonable level of predictability which is the intended operation of such a scheme' referred to by Brett J."
28 By reasoning in that way, the tribunal gave no weight to the fact that the Use Table in cl 10.2 of the planning scheme, under the heading "Discretionary", expressly provided for a medical centre to be a discretionary use in the relevant zone. The tribunal gave no weight to the fact that the five relevant considerations that were the subject of Use Standards prescribed by cl 10.3 would, at least sometimes, not have been the only relevant considerations. I need not address the nature of the discretion conferred by clause 8.8.1(b) when cl 8.8.1(a) and (c) are not engaged. The fact that certain uses were prescribed as discretionary in the Use Table in cl 10.2 is enough to warrant a different approach to the exercise of the cl 8.8.1(a) discretion.
29 At the hearing of this appeal, counsel for the owner relied on some of the objectives stated in Schedule 1 to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). Part 1 of the schedule lists the "Objectives of the Resource Management and Planning System of Tasmania". One of those objectives, stated in cl 1(b) of that part, is "to provide for the fair, orderly and sustainable use and development of air, land and water". Counsel also relied on two of the objectives of the planning process established by the LUPA Act, as stated in Part 2 of Schedule 1. Those two objectives read as follows:
"(a) to require sound strategic planning and co-ordinated action by State and local
government; and(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land".
30 However there is nothing unfair, disorderly or unsustainable involved in a planning authority or a tribunal, given a discretion to permit a particular use, being entitled to take into account relevant considerations that are not the subject of prescribed acceptable solutions or performance criteria. The existence of a limited and circumscribed discretion is in no way inconsistent with any of the statutory objectives that counsel sought to rely upon.
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31 In my view it is quite clear that it was the duty of the tribunal to take into account any relevant considerations relied upon by either party that were not the subject of the Use Standards prescribed by cl 10.3 and, for that purpose, to have regard to the Zone Purpose Statements in cl 10.1.1 of the planning scheme as required by cl 8.10.2(a) thereof.
32 The parties presented the tribunal with conflicting evidence from two expert witnesses as to whether the proposed use was in harmony with the Zone Purpose Statements. The tribunal concluded, at [57], that it was unnecessary to determine whether the evidence of one expert or the other was to be preferred because that evidence was irrelevant. For the reasons I have stated, it erred in law by treating that evidence as irrelevant.
Conclusion
33 For the reasons stated I allow the appeal, I set aside the decision appealed against, and I return the matter to the tribunal for reconsideration in accordance with these reasons.
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