Tomaszewski v Hobart City Council - [2020] TASSC 48

[2020] TASSC 48

COURT: SUPREME COURT OF TASMANIA

CITATION: Tomaszewski v Hobart City Council [2020] TASSC 48

PARTIES:  TOMASZEWSKI, Paul
  HEATH, Rebecca
  v
  HOBART CITY COUNCIL
  WILLAR PTY LTD

FILE NO: 1199/2020
DECISION

APPEALED FROM: P Tomaszewski and R Heath v Hobart City Council
and Willar Pty Ltd and Anor [2020] TASRMPAT 5

DELIVERED ON:  5 October 2020
DELIVERED AT:  Hobart
HEARING DATE:  14 September 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Applications – Generally – Amendment to proposal – Whether amendment or new proposal – Revised plans submitted after public notification – Permit condition requiring compliance with revised plans.

Land Use Planning and Approvals Act 1993 (Tas), s 51(3A).
Addicoat v Fox (No 2) [1979] VR 347; Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584; Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318; Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49, 109 LGERA 190; St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169, referred to.
Aust Dig Environment and Planning [68]

Environment and Planning – Environmental planning – Development control – Applications – Notice and advertising – Advertisement – Re-advertisement – Tasmania – No statutory basis for re-advertisement.

Land Use Planning and Approvals Act 1993 (Tas), s 57(3), (4).
Aust Dig Environment and Planning [92]

REPRESENTATION:

Counsel:
             Appellants:  S B McElwaine SC
             First Respondent:  D J D Morris
             Second Respondent:  A C R Spence SC
Solicitors:
             Appellants:  Shaun McElwaine + Associates
             First Respondent:  Simmons Wolfhagen
             Second Respondent:  Page Seager

Judgment Number: [2020] TASSC 48
Number of paragraphs: 47

Serial No 48/2020
File No 1199/2020

PAUL TOMASZEWSKI and REBECCA HEATH
v HOBART CITY COUNCIL and WILLAR PTY LTD

REASONS FOR JUDGMENT BLOW CJ

5 October 2020

This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal concerning a proposal by the second respondent, Willar Pty Ltd ("the developer"), to develop and use a site in Battery Point for visitor accommodation. In June 2018 the developer applied to the Hobart City Council for discretionary planning approval for the proposed development and submitted documentation that included a set of plans. Thereafter the Council went through the usual process of notifying and advertising the application. During April 2019 the developer submitted revised plans to the Council. The Council repeated the process of notification and advertising. Subsequently a delegate of the Council granted a planning permit that included a condition requiring compliance with the revised plans. The appellants, Paul Tomaszewski and Rebecca Heath, appealed to the Tribunal. Amongst other things, they contended that the submission of the revised plans to the Council amounted to a fresh application for a permit, and that the Council was obliged to refuse it because visitor accommodation had become a prohibited use in the relevant…

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: [2020] TASSC 48
Decision Date: 5 October 2020

CaseChat Overview and Summary

The case of Tomaszewski v Hobart City Council was heard in the Supreme Court of Tasmania. The dispute involved the respondent council's decision to deny a permit for the applicant's proposed development. The applicant sought to amend the initial proposal, submitting revised plans after the initial public notification. The applicant argued that the revised plans should be considered, while the council contended that the revised plans constituted a new proposal, requiring a fresh notification process.

The legal issues before the court were whether the revised plans submitted by the applicant constituted an amendment to the initial proposal or a new proposal altogether, and whether the council had the authority to require compliance with the revised plans as a condition of the permit. The court had to determine the appropriate interpretation of the relevant planning legislation and the council's powers in assessing development applications.

The court held that the revised plans submitted by the applicant were an amendment to the initial proposal, not a new proposal. It found that the council had the authority to require compliance with the revised plans as a condition of the permit. The court emphasised the importance of the public notification process and the need for clarity in development applications. Consequently, the court dismissed the applicant's appeal and upheld the council's decision.

In summary, the Supreme Court of Tasmania determined that the revised plans submitted by the applicant were an amendment to the initial proposal, not a new proposal. The court upheld the council's decision to deny the permit and required compliance with the revised plans as a condition of the permit.

Orders