Jacobs v Hobart City Council
[2024] TASSC 38
•19 July 2024
[2024] TASSC 38
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Jacobs v Hobart City Council [2024] TASSC 38 |
| PARTIES: | JACOBS, Paul |
| v | |
| HOBART CITY COUNCIL | |
| CENTACARE EVOLVE HOUSING LTD | |
| FILE NO: | 2563/2023 |
| JUDGMENT | |
| APPEALED FROM: | Jacobs v Hobart City Council [2023] TASCAT 158 |
| DELIVERED ON: | 19 July 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 17 June 2024 |
| JUDGMENT OF: | Porter AJ |
| CATCHWORDS: |
Environment and Planning – Planning schemes and instruments – Matters for consideration of consent authority – Generally – Consideration of development standards – Particular development standards – Performance criterion – Private open space to be "oriented to take advantage of sunlight" – Meaning of phrase – Where acceptable solution satisfied if space located between dwelling and frontage and if oriented specified degrees east or west of true north – Considerations of performance criterion not confined to general orientation to the north – Need for qualitative analysis of positioning so as to take advantage of sunlight.
Aust Dig Environment and Planning [109]
REPRESENTATION:
Counsel:
Appellant: N Billett First Respondent: (Submitted to Court's jurisdiction) Second Respondent: N Street
Solicitors:
Appellant: Billett Legal First Respondent: Hobart City Council Second Respondent: Simmons Wolfhagen
| Judgment Number: | [2024] TASSC 38 |
| Number of paragraphs: | 39 |
Serial No 38/2024 File No 2563/2024
PAUL JACOBS v HOBART CITY COUNCIL and CENTACARE EVOLVE
HOUSING LTD
| REASONS FOR JUDGMENT | PORTER AJ 19 July 2024 |
| Introduction |
1 This is an appeal from a decision of the Tasmanian Civil & Administrative Tribunal – Resource & Planning Stream. The decision relates to the grant of a permit made on 1 February 2023 by the Hobart City Council to Centacare Evolve Housing Ltd. The permit was for a development involving the construction of 22 multiple dwellings and associated work on a site in New Town Road, New Town. A nearby resident, Paul Jacobs (the appellant), appealed to the Tribunal. On 25 August 2023, the Tribunal, constituted by Deputy President R Grueber and Member K Loveday, dismissed the appeal but made directions relating to amended conditions.
2 The appellant appeals to this Court against the dismissal of his appeal to the Tribunal. The appeal relates to the construction of a part of the performance criteria for the particular zone in the Hobart Interim Planning Scheme 2015 (the Scheme). It involves establishing the proper meaning to be given to the requirement that a dwelling must have private open space" orientated to take advantage of available sunlight", as the expression appears in Performance Criteria – P2 within cl 11.4.3 of Scheme – "Site coverage and private open space for all dwellings".
3 The Council has submitted to the Court's jurisdiction while Centacare was the active respondent. The appellant and Centacare (the respondent) agree that the Tribunal erred in law. However, they differ somewhat as to what, in strict terms, is the correct interpretation of the provision, and as to the correct approach to assessments of compliance. I agree that the Tribunal erred in law in the way I will explain, and it follows the appeal should be allowed. It is not strictly necessary for me to decide the point of difference between the parties, but I will make some comments about it.
The proposal and the provisions of the Scheme
4 The site in New Town is at the intersection of Sunnyside Road and Paviour Street. There is road frontage to Paviour Street along the north-east boundary, and road frontage to Sunnyside Road along the south-east boundary. The proposal is for social housing, to be managed by the respondent. It involved demolition of all current buildings on the site and provide for 22 dwellings within a single built form. There would be 11 single storey units on the ground floor and 11 two storey units on the first and second floors. The single storey dwellings would each have one bedroom and a floor area of 35.6 m[2] while the two storey dwellings would each have two bedrooms and a floor area of 73.3 m2. The proposal included a covered communal area and a number of car parking spaces.
[2] The Tribunal's reasons at [51].
5 The use class is "residential", as defined in table 8.2 of the Scheme. The site is located in the Inner Residential Zone as provided for in cl 11 of the Scheme.
6 As I have noted, this appeal relates to part of cl 11.4.3; in particular, performance criterion P2(b). Clause 11.4.3 is as follows:
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11.4.3 Site coverage and private open space for all dwellings
Objective:
That dwellings are compatible with the amenity and character of the area and provide:
(a) for outdoor recreation and the operational needs of the residents; (b) opportunities for the planting of gardens and landscaping; and (c) private open space that is conveniently located and has access to sunlight Acceptable Solutions Performance Criteria A2 P2 A dwelling must have private open space A dwelling must have private open space that: that includes an area capable of serving as (a) is in one location and is not less than: an extension of the dwelling for outdoor
(i) 24m2; or relaxation, dining, entertaining and
(ii) 12m2, if the dwelling is a children’s play and is: multiple dwelling with a finished (a) conveniently located in relation to a
floor level that is entirely more living area of the dwelling; and than 1.8m above the finished (b) orientated to take advantage of ground level (excluding a garage, sunlight. carport or entry foyer);
(b) has a minimum horizontal dimension of:
(i) 4m; or (ii) dwelling with a finished floor
level that is entirely more than
1.8m above the finished ground2m, if the dwelling is a multiple or entry foyer);
(c)
is located between the dwelling and the frontage only if the frontage is orientated between 30 degrees west of true north and 30 degrees east of true north;
(d)
has a gradient not steeper than 1 in 10; and
(e)
is not used for vehicle access or parking.
The facts
7 The appeal to the Tribunal, insofar as it was concerned with the provision of private open space, was limited to the 11 ground floor units. Before the Tribunal it was common ground that the acceptable solution A2 would not be satisfied by the proposal in respect of each of the units. By virtue of cl 8.8.1(b) of the Scheme, (set out later in these reasons), because the proposal relied on the performance criteria to comply with the standard, the exercise of whether or not to grant the permit became a discretionary one. The proposal had to demonstrate compliance with performance criteria P2 for each of the dwellings. The criteria in P2 are cumulative and there is no issue about compliance with P2(a).
8 Each of the 11 units was provided with two areas of private outdoor space, one located to the east and one located to the west. The private open space afforded by those units was to be provided by
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way of two terraces, one located to the north-east of the dwelling accessible through the bedroom, and
the other to the south-west and access directly from the living areas of the dwelling.9 The Tribunal had expert evidence relevant to the P2(b) issue. For the appellant, Neil Shephard said that ordinarily, the location of private open space between the dwelling and northern exposure would maximise the opportunity for sunlight to reach the space; conversely, locating the open space behind the dwelling with a southerly orientation would not. In his view, on the basis of shadow diagrams and other information, the private open space on the south-western facing terraces was not oriented to take advantage of sunlight. As to the rear north-eastern facing terraces, he said that while they enjoy that orientation, the physical features of the site, (including a bank/cutting at the rear), meant there was no sunlight of which such an orientation could take advantage.
10 Michael McClenahan gave evidence for the Council. His evidence was to the effect that the private open space on the eastern elevation was oriented approximately 66.1 degrees east of north, while that on the western elevation was orientated approximately 113.9 degrees west of north. His assessment was that the private open space for the ground floor dwellings was orientated to take advantage of sunlight. In his opinion a consideration of the topographical context of the open space for assessment against cl 11.4.3 P2 was not relevant. As to the second terrace on the western elevation, he said that this orientation was not as advantageous with respect to sunlight access but thought that as secondary, supplementary area, the combination with that available on the eastern terrace was "sufficient to be considered satisfactory in having private open space to a dwelling taking advantage of sunlight so as to facilitate a reasonable amenity for its occupants."
11 Monica Cameron gave evidence for the respondent. In her opinion it was a preferential option to locate private open space on eastern and western elevations rather than north and south, as they would access sunlight for longer periods during the day between the two. The private open spaces on the eastern elevation would receive sunlight throughout the morning, while those on the western side, would receive sunlight in the afternoon. As the spaces will receive sunlight through most of the day, and are provided on two different building elevations, the areas were considered sufficiently orientated to take advantage of sunlight.
The Tribunal's decision
12 The relevant ground of the appeal to the Tribunal was that the application failed to demonstrate compliance with cl 11.4.3, P2. After setting out the evidence and addressing the capabilities of the areas as provided for in the first part of P2, the Tribunal said:
"[47] In M Cubitt & T Powell v Launceston City Council & Ors [2022] TASCAT 47 at [41]- [46] the Tribunal considered what was meant by ‘orientated to take advantage of sunlight’ for the purposes of P2(b) in an identical provision in the Launceston Interim Planning Scheme 2015. The Tribunal concluded that the term required consideration of whether the area is orientated to take advantage of sunlight by reference to orientation to north. That requirement will effectively exclude consideration of the western terraces which are on the south-western elevation of the building and cannot be said to be oriented to north.
…
[51] Mr Shephard … considered that the space was not orientated to take advantage of sunlight because the actual sunlight to the private open space would be quite restricted. As noted in Cubitt v Launceston City Council, the standard requires that the area be orientated to take advantage of sunlight and does not require an assessment of an appropriate level of solar access. The fact that the level of sunlight might be low does not mean that the standard is not met. What is required is that the space be orientated in respect of north to take the best advantage of what sunlight might be available.
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[52] That orientation does not necessarily have to be determined by reference to the longest axis of the space. The shorter sides of the space are orientated 23.9 degrees west of north, based on Mr McClenehan's evidence that the longer access is orientated 66.1 degrees east of north. Given that the relevant space is rectangular it will be orientated to take advantage of the, albeit poor, sunlight.
[The Tribunal then discussed the convenience of location of the areas as referred to
P2(a), and found the requirements were made out.]
[56] The proposal will comply with P2. The third ground of appeal is not made out."
The grounds of appeal
13 As pursued, the grounds are as follows:
"1
The Tribunal erred at [51] and [52] by failing to properly construe clause 11.4.3 P2 of the Hobart Interim Planning Scheme 2015 which relevantly requires that there is an area of private open space that is 'oriented to take advantage of sunlight.'
1.1 The Tribunal found that:
(a) The standard does not require an assessment of an appropriate level of solar access; (b) The fact that sunlight might be low does not mean that the standard is not met; (c) That what is required is that the space be oriented in respect of north to take the best advantage of what sunlight might be available; and (d) That orientation does not necessarily have to be determined by reference to the longest access of the space and may be determined by reference to the shorter side of a rectangular area of open space. 1.2 The Tribunal failed to find that for private open space to be oriented to take advantage of sunlight requires that it is oriented to make use of the sunlight that is available to the Site. 2 The Tribunal erred by way of a constructive failure to exercise jurisdiction in applying the performance criterion under clause 11.4.3 P2 of the Hobart Interim Planning Scheme 2015 in that it failed to consider and make a finding as to what sunlight was available to the Site, including where and when that sunlight occurred, and whether the private open space for each dwelling was oriented to take advantage of that sunlight.
3 The Tribunal erred by asking itself the wrong question in that it substituted a test of how private open space was 'oriented in respect of north' in place of the test required by clause 11.4.3 P2 of the Hobart Interim Planning Scheme 2015 which requires the private open space to be oriented to take advantage of sunlight."
14 In essence, the three grounds really involve the same question, that being whether the Tribunal was wrong in its interpretation of what the Scheme required by virtue of the phrase in criterion P2(b) – "oriented to take advantage of sunlight". An error in the proper construction of a provision is an error of law. The application of the wrong test is an error of law and such an error, or a failure to apply the mind to the question the law prescribes, amounts to a constructive failure to exercise jurisdiction: Ex parte Hebburn Ltd; re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 cited in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, 206 CLR 57 at [80]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [41].
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Discussion
15 The law in relation to the construction of provisions in planning schemes is well settled. It accords with the approach to the interpretation of legislation: see Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14, 27 Tas R 405 at [49]; Wilderness Society Inc v Wild Drake Pty Ltd [2021] TASFC 12, 34 Tas R 341 at [112]-[114]; Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council [2022] TASFC 5 at [19]-[20].
16 In summary, the task begins with the ordinary grammatical meaning of the text to be interrupted having regard to its context. The words used in the text are the surest guide; context includes having regard to the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 270 at [4] and [47]. The statutory purpose resides in the statutes text and structure, and may appear by inference: Lacey v Attorney-General for Queensland [2011] HCA 10, 242 CLR 573 at [44]. Words that have an apparently clear ordinary or grammatical meaning may be given a different legal meaning after the process of construction is complete: R v A2 [2019] HCA 269, CLR 507 at [32]. The task remains throughout to discern the meaning of the statutory text, not to define unexpressed legislative intention or remedy perceived legislative inattention: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531 at [65].
17 At least in part, cl 4.1.1 accords with this approach. It provides that terms in the Scheme have their ordinary meaning unless they are defined. "Private open space" is defined as an "outdoor area of the land or dwelling for the exclusive use of the occupant …". Neither the phrase "oriented to take advantage of sunlight" nor any relevant word within that phrase, is defined
18 Context derived from the overall structure and other relevant provisions of a scheme is particularly important in the construction of performance criteria: Raff Angus Pty Ltd v Resource Management & Planning Tribunal [2018] TASSC 60, 28 Tas R 224 at [22]. In the present case, the parties agree that the relevant zone purpose statements in the Scheme form part on the context. (They disagree however, on what role those statements have when it comes to assessing compliance with the performance criteria.)
19 The Tribunal's reasons at [47], [51] and [52], as set out above, show that it adopted a construction of the requirement in P2(b) which requires consideration of whether the private open space is oriented to take advantage of sunlight solely by reference to its orientation to north; that is, the space must be "oriented in respect of north to take the best advantage of what sunlight might be available." Additionally, it concluded that the orientation of the space is determined by measuring any axis of it for its northerly alignment.
20 Of course, it can immediately be seen that such an approach will, in all cases, inevitably exclude consideration of open spaces that, speaking generally, have a west-north-westerly, westerly or south- westerly aspect. It is matter of common experience and knowledge that spaces with such directional aspects, ignoring structures and the like which may affect the situation, have access to sunlight in the mid to late afternoon. In this case, the Tribunal's approach led to the exclusion of the western terraces of the units concerned, with the evidence of Mr McClenehan and Ms Cameron then being ignored. In the result, so was that of Mr Shephard.
21 In terms of aids to interpretation, the zone purpose statements for the Inner Residential Zone, set out in cl 11.1, make reference to (among other things), provision for a variety of residential uses and dwelling types in inner urban and historically established areas, the encouragement of residential development at higher densities in certain generic locations, and the provision of a high standard of residential amenity. Perhaps of more relevance are the objectives set out in cl 11.4.3. Generally, such objectives are important aspects of context: Raff Angus (above). The particular objective, cl 11.4.3(c), is to provide "private open space that is conveniently located and has access to sunlight." In terms of
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compliance, cl 7.5.4 enables consideration of relevant objectives "to help determine whether a use or
development complies with the performance criterion … ."22 The relationship between acceptable solutions and performance criteria was explained by Brett J in Raff Angus (above) at [22] and again by his Honour, (Wood and Pearce JJ agreeing), in Boland v Clarence City Council [2021] TASFC 5 at [20]-[21]. Acceptable solutions and performance criteria are separate and sufficient methods of complying with a scheme standard. Acceptable solutions are intended to provide a certain quantifiable way of complying with a relevant standard, whereas performance criteria will prescribe a quality test requiring an evaluative judgment. That is not to say however, that an acceptable solution is necessarily irrelevant to an evaluative assessment. In respect of some performance criteria, consideration of the acceptable solution may arise by necessary implication.
23 The only part of Acceptable Solution A2 in cl 11.4.3 that would seem to directly relate to sunlight is A2(c), with a particular orientation to the north being a requirement for compliance. The word "sunlight" is not mentioned at all in A2 itself. Where it appears in Objective (c) and in P2(b), it would have its ordinary meaning; adjectivally, "lit by the sun". It is used in contra-distinction to "daylight" elsewhere in cl 11.4 of the Scheme.[1]
[1] Objective (c) in cl 11.4.2 – "Setbacks and building envelopes for all dwellings" – refers to the provision of "separation between dwellings on adjoining properties to allow a reasonable opportunity for daylight and sunlight to enter habitable rooms and private open space."
24 To be compliant with A2(c), private open space for a dwelling must be located between the dwelling and the frontage, and only if the frontage is oriented between 30 degrees west of true north and 30 degrees east of true north. Any private open space not located between the dwelling and the frontage, has to be considered under P2. Of course, orientation to the north is not mentioned in P2(b), and it would seem the Tribunal seems merely to have adopted a slightly modified version of A2(c). On one view, it effectively added words to the provision when that is not justified: Taylor v The Owners - Strata Plan No 11564 (above) at [38]. The approach taken cannot properly be drawn from A2(c).
25 Although the parties agreed the Tribunal's approach was wrong in law, they did not completely agree on precisely what "orientated" means in P2(b), although in the end, I think the difference was one of emphasis. The appellant argues that it means the open space must be placed in a definitive position with reference to the points of a compass, saying that contextually this has regard to the relationship between the dwelling, the open space and the available sunlight. However, the submission continues, "[T]he performance criterion requires that the area of open space is to be so orientated such that it takes advantage of sunlight not merely that it is to be placed to the north of the dwelling."
26 The respondent says "orientation" in P2(b) means placement in a definitive position, but by reference to that which enables it to take advantage of sunlight, not by reference to cardinal points on a compass. Counsel relies on dictionary definitions to show that the word has both the meaning of to place in a definitive way by reference to points of the compass, and "to adjust with relation to surroundings, circumstances, facts etc." In oral argument, counsel for the appellant was content to embrace that meaning, while arguing regard is to be had to compass points.
27 To the extent there is any real point of difference, in practical terms it is of no great consequence. The orientation of open space relative to the points of compass, particularly a north/south orientation, would ordinarily be a part of the consideration of whether there is an orientation to take advantage of sunlight. But as I have mentioned, a non-northerly orientation does not necessarily preclude a location or position with the capacity to take advantage of sunlight.
28 Both parties also make the point that the Tribunal's approach involves orientation using the boundaries of the areas of private open space. Accepting that the Tribunal said that the orientation does
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not necessarily have to be determined by reference to the longest axis, its approach focuses on how the boundaries or edges are orientated relative to north, in preference to an analysis of a placement of the private open space in terms of it taking advantage of sunlight. Circular or angular spaces would, on the Tribunal's approach, present difficulties.
29 I am satisfied the Tribunal erred in law in its approach and that the grounds are made out. It ought not to have followed the earlier Tribunal decision of Cubitt v Launceston City Council. Counsel were generally agreed on the correct interpretation of the provision, and I accept the position as outlined by them.
30 What is required by P2(b) is an assessment of the sunlight available to the site, and then an examination of whether the private open space is positioned so as to take advantage of that sunlight. To that extent, the test requires a qualitative analysis, not a generalised quantitative assessment of positioning by reference to north. Through its focus on the boundaries of the open space being generally referable to the north on the assumption that it provides the "best advantage of what sunlight might be available"2, the Tribunal failed to assess whether the positioning, whatever that might be, in fact enabled the open space to take advantage of sunlight.
Observations
31 The remaining issue between the parties concerns the use of zone purpose statements in determining an application for a permit, as provided for in cl 8.10 of the Scheme. For the purposes of this case, it is not necessary for me to decide the point but in deference to the arguments, succinct as they were, and having regard to the point given its wider application, I will say something about it. Clause 8.10 provides 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 ss51(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 ss57(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; (b)
any relevant local area objective or desired future character statement for the applicable zone;
(c) the purpose of any applicable code; and (d) the purpose of any applicable specific area plan, 8 No 38/2024
but only insofar as each such purpose, local area objective or desired future character statement is relevant to the particular discretion being exercised. "
32 The respondent suggests that cl 8.10.2 only applies "in the context of the consideration of a discretionary use, ie, a use class that is listed as discretionary within the applicable use table." [My emphasis]. It follows, the respondent says, that as the use in this case was a permitted use within the Inner Residential Zone, regard was not to be had to the zone purpose statements in determining compliance with a standard. The appellant submits that cl 8.10.2 means what is says; where the exercise is a discretionary one, regard must be had to those statements in the determination process.
33 First, the permit sought in this case was for development, not use, a point to which I will return. Second, and in any event, I do not accept the respondent's argument. Clauses 8.7 and 8.8 need to be looked at, and I will set them out in their entirety.
"8.7 Permitted Use or Development 8.7.1 A use or development must be granted a permit if:
(a)
the use is within a use class specified in the applicable Use Table as being a use which is permitted;
(b)
the use or development complies with each applicable standard and does not rely on a performance criterion to do so; and
(c)
the use or development is not discretionary or prohibited under any other provision of the planning scheme.
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"
34 In my view the combined effect of these provisions, cl 8.7.1(b) and cl 8.8.1(b) in particular, is clear; where the use or development relies on a performance criterion to be compliant, there is a discretion to refuse or permit the use or development. That is so notwithstanding that in the case of a use, it is within a class of use permitted in a zone.
35 That said however, cl 8.10.2 does not apply in this case for a different reason. Clause 8.10.2 only refers to an application for a permit for a discretionary use. "Use" and "development" are quite distinct things, and mutually exclusive: Land Use Planning and Approvals Act 1993, s 3; Gamble v Kingborough Council [2020] TASFC 7 at [18]. The application was for a permit for development. It is not immediately clear why regard to the matters set out in cl 8.10.2 is mandated for the determination of an application for a permit for a discretionary use, and not in relation to a discretionary development, and the point was not argued.
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36 Even if it were the case that regard must be had to, for instance, zone purpose statements, in determining a discretionary development, they are not to be raised to the status of standards: see generally Boland v Clarence City Council (above) at [9]-[11] and Von Witt v Hobart City Council [1995] TASSC 12 at [13]. On the other hand, if having regard to the cl 8.10.2 matters is not mandated, and cl 8.10.1 applies, I can see no reason a planning authority could not take one or more of them into account where relevant in a particular case. In the circumstances of this case, I do not need to say anything further.
Outcome
37 For the reasons I have given, the appeal will be allowed. The decision of the Tribunal of 25 August 2023 is set aside.
38 The parties are agreed that there is no need for me to order that the matter be reconsidered by a differently constituted tribunal. This is not a case in which the law would require the original decision- makers to disqualify themselves on the ground of a reasonable apprehension of bias. This case involves an error of law in failing to properly construe the performance criterion and consequently failing to approach the issue in the correct way. No controversial findings of fact will need to be re-visited, and to start the whole process over again would be costly. However, it should be left to the proper administrative processes, and perhaps the views held by the members themselves, to determine the makeup of the Tribunal. See Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46 at [9]-[18]; Gibson v Resource Management and Planning Appeal Tribunal [2011] TASSC 72 at [57]-[58]; Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42 at [23]-[24].
39 I order the matter be returned to the Tribunal, as originally constituted or otherwise constituted in accordance with the directions of the President of the Tribunal or delegate, for reconsideration in accordance with these reasons. The parties are also agreed as to the appropriate orders for costs. I order that the respondent, Centacare Evolve Housing Ltd, pay the appellant's costs of the appeal. I grant to that respondent an indemnity certificate pursuant to s 9 of the Appeal Costs Fund Act 1968.
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