The recent decision of Gore v Central Highlands Council & Anor [2023] TASCAT 117 resolves any lingering uncertainty surrounding the question of whether covenants in an agreement made under Part 5 of the Land Use Planning and Approvals Act 1993 (Tas) (Part 5 Agreements) are relevant considerations when granting a planning permit.
What are Part 5 Agreements?
Part 5 Agreements are contracts between an owner of land and the relevant Council that are registered on title. As they attach to land, all future owners will be bound by the terms of the agreement. Part 5 Agreements are typically used to protect environmental values or restrict development on private land in perpetuity. Although their scope is broad, they must not require or allow anything to be done which would contravene or not comply with a planning scheme or planning permit.
The issue in Gore
The Appellant appealed the Council’s decision to refuse their application for planning approval to change the use of their land to operate visitor accommodation. Parties were joined to the proceeding, and those parties sought to enlarge the grounds of appeal to introduce the existence and effect of a Part 5 Agreement registered on title to the relevant land.
Decision
The Tribunal held that in this case neither itself nor the Council had jurisdiction to consider the existence and effect of a Part 5 Agreement when determining whether a planning permit should issue. This was so because:
- Part 5 Agreements are of limited relevance in the Tasmanian Planning Scheme; several discrete provisions in the State Planning Provisions refer to such agreements, however those provisions were not relevant in this case.
- “There is nothing in the LUPAA Act that prohibits a planning permit from being granted that might be contrary to an agreement made under Part V” (see para [24]), and the granting of a planning permit does not allow an approved use and/or development to be carried out in contravention of an existing Part 5 Agreement.
- Part 5 Agreements can be amended or extinguished – it would be up to the permit holder to take any necessary action in this respect prior to commencing any contravening use and/or development.
More information
If you would like more information about this article, please contact:
Marc Edwards
Special Counsel
M: 0407 205 719
E: medwards@pageseager.com.au
Sophia Sadri
Lawyer
T: (03) 6235 5161
E: ssadri@pageseager.com.au
Published: 1 December 2023
