Jacobs v Hobart City Council - [2024] TASSC 38

[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,…

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.

Keep reading for free

Create a free CaseChat account to read Jacobs v Hobart City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] TASSC 38
Decision Date: 19 July 2024

CaseChat Overview and Summary

In the matter of Jacobs v Hobart City Council, the applicant sought a review of the decision of the respondent to refuse consent for development on a residential property. The dispute primarily revolved around the interpretation of a specific performance criterion in the planning scheme, which required private open spaces to be oriented to take advantage of sunlight. The matter was heard in the Supreme Court of Tasmania. The applicant argued that the Council's interpretation of the phrase "oriented to take advantage of sunlight" was too narrow and failed to consider the broader intent of the planning standards. The Council, on the other hand, maintained that the phrase should be understood to mean that the open space should be generally oriented to the north.

The central legal issue before the court was the interpretation of the phrase "oriented to take advantage of sunlight" within the context of the planning standards. The court had to determine whether the Council's decision to reject the application was lawful, given their interpretation of the phrase. Additionally, the court needed to decide if the Council appropriately considered all relevant factors when assessing whether the proposed development met the performance criterion.

The court held that the Council's interpretation of the phrase "oriented to take advantage of sunlight" was too restrictive and did not align with the broader intent of the planning standards. The court emphasised that the orientation of the open space should be assessed qualitatively, considering its positioning to take advantage of sunlight, rather than merely its general orientation to the north. The court found that the Council failed to conduct a proper qualitative analysis and thus their decision was flawed. Consequently, the court quashed the Council's decision and remitted the matter back to the Council for reconsideration in light of the correct interpretation of the planning standards.

Orders