The decision of Cai v Launceston City Council [2024] TASSC 10 was recently handed down by the Supreme Court of Tasmania and provides guidance, particularly to town planners, on the classification of use in planning assessments. The decision confirms the well understood principles of classifying uses as “ancillary uses” in Tasmania.
The case was an appeal of the decision of the Tasmanian Civil and Administrative Tribunal (Tribunal) to affirm Launceston City Council’s grant of a planning permit for the use and development for a 4.5 – 5 star hotel, referred to as “The Gorge Hotel”, in Launceston. At the time the planning application was made the development was estimated to cost in the vicinity of $50 million to develop.
The planning permit was for several uses, specifically, visitor accommodation and other associated “ancillary uses” including a general retail and hire, food services, community meeting and entertainment and hotel industry.
The key issue was whether the Tribunal correctly identified and applied the test of whether the general retail and hire, food services, community meeting and entertainment and hotel industry uses could properly be characterised as “ancillary uses” to the visitor accommodation in that they are “directly associated with” and a “subservient part” of that use.
The Supreme Court affirmed the Tribunal’s decision and dismissed the appeal.
The key takeaways from the decision are that:
- the classification of use and whether a use is ancillary to another use is a question of fact, not a question of law;
- it is correct to have regard to the nature of the proposal when considering whether a use is ancillary to another use. For example, visitor accommodation comes in many different forms, what will be an ancillary use of a 4.5 – 5 star hotel is likely to be different to what is ancillary to backpacker accommodation; and
- it is important that adequate information on the nature of the proposed use/s is obtained to inform a planning assessment on the classification of use.
Whether one use is “ancillary” to another use is a matter that regularly requires consideration when undertaking planning assessments, particularly in the context of the preparation of development applications. It is important to be aware of how the test should be applied as it is likely to impact what standards of the applicable planning scheme are required to be satisfied for a permit to be granted.
In this respect, town planners in Tasmania play an important role in establishing whether a use is ancillary for any given application. However, it is important to note that a town planner may need to draw upon other experts to inform an assessment on whether a use is ancillary to another, for example in this case what was determinative was evidence from experts in the hospitality industry.
The Supreme Court’s decision can be viewed here, and the Tribunal’s decision can be viewed here.
More information
If you would like to discuss the implications of the decision, please contact:
Anthony Spence SC
Principal
M: 0400 545 503
E: aspence@pageseager.com.au
Victoria Lightfoot
Associate
T: (03) 6235 5176
E: vlightfoot@pageseager.com.au
Published: 18 April 2024
