Planning appeals: Online portals – when is it not reasonable to expect a person to have made a representation?

In the context of appeals against decisions to grant discretionary planning approval, a third party may apply to join an appeal provided they can establish that:

  1. their interests are affected by the relevant decision, and they made a representation regarding the relevant proposal; or
  2. their interests are affected by the relevant decision, they have a proper interest in the subject matter of the appeal, and it was not reasonable to expect them to have made a representation regarding the relevant proposal.

Commonly, third parties who wish to join appeals make a representation and their application is unopposed, but that is not always the case.

In the recent decision of P Sharman v Hobart City Council and J Scanlan (Decision), the Tasmanian Civil and Administrative Tribunal (TASCAT) considered the test for third parties joining an appeal, specifically the question of when is it not reasonable to expect a representation to have been made.

Briefly, the Decision involved a third-party applicant to join who gave evidence that they attempted to make a representation using the Hobart City Council’s (Council) online portal, that attempt failed for reasons they could not fully explain, and they submitted it was not reasonable to expect them to have made further attempts to lodge a representation.

The Council gave evidence that their online portal was operational at the relevant time, no representation was received from the third party, the online portal included mechanisms for notifying a third party that their representation was received (i.e. delivery of a receipt number), and the online portal contained clear written warnings to the effect that, absent a confirmation email, a representation is considered unsuccessful.

In its decision, the TASCAT held that it was not enough to have made a failed attempt to lodge a representation using an online portal that puts users on notice that a representation is only validly submitted if a confirmation email is received.

The points to take away from the Decision are:

  1. for planning authorities that use online portals to receive representations, ensure your portal has adequate mechanisms and warnings in place regarding successful receipt; and
  2. for everyone else, take care when submitting representations using online portals.

More information

If you have any queries or would like further information about this article, please contact:

Marc Edwards
Special Counsel
M: 0407 205 719

Anthony Spence SC
M: 0400 545 503

Published: 17 November 2022

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