Gillard v Launceston City Council (2024) TASSC 37 (Gillard) is a notable decision of the Supreme Court that will impact how planning applications are approached and assessed against the applicable planning scheme.
It is well understood in the Tasmanian planning context that a development application must be rejected if, in respect of any applicable standard, neither an acceptable solution nor a performance criteria is complied with.
It has also been commonly understood that where each applicable acceptable solution or corresponding performance criteria is satisfied, the development application must be approved. However, this latter proposition was rejected by the Supreme Court.
It was recently determined in Gillard that there is a residual discretion in respect of development applications which relate to discretionary uses listed in the Use Table and where the Use Standards do not address and cover all the issues contained in the Zone Purpose statements.
Facts of the matter
The case concerned a property in Elphin Road, Newstead. The property fell within the General Residential Zone under the Launceston Interim Planning Scheme 2015 (Scheme). A permit was sought for the use of the property as a medical centre for a plastic surgery practice, the specific use class under the Scheme was “Business and professional services”.
In the Use Table in clause 10.2, in the discretionary category, it included a notation “Business and professional services” subject to the qualification “If for a medical centre”.
The appellants owned a neighbouring property and opposed the proposal.
The Tasmanian Civil and Administrative Tribunal (Tribunal) had determined that there was no discretion to refuse a proposal that met the Use Standards of the applicable planning scheme.
Planning Schemes in Tasmania are “performance-based schemes”. In respect of each zone there are zone purpose statements, permitted, discretionary and prohibited uses, uses standards, objectives, acceptable solutions, and performance criteria.
The argument put before the Supreme Court was that even where the applicable acceptable solution or the correspondence performance criteria was satisfied, there was a residual discretion to refuse the proposal in accordance with clause 8.8.1(a) of the Scheme.
Clause 8.8.1(a) of the Scheme is as follows:
“8.8 Discretionary Use or Development
8.8.1 The planning authority has a discretion to refuse or permit a use or development if:
(a) the use is within a use class specified in the applicable Use Table as being a use which is discretionary;…”
Decision
The Tribunal determined that there was no discretion to refuse the proposal. It did so in purported reliance upon Clarence City Council v Resource Management and Planning Appeal Tribunal (2018) 232 LGERA 377 (Clarence City Council).
However, his Honour determined that Clarence City Council was distinguishable from Gillard as it dealt with a situation where a “Use Standard” provision covered the field in relation to one relevant consideration, leaving no residual discretion in relation to that consideration. By contrast, in Gillard it was contended that the proposed use would have an adverse effect on residential amenity in respect to matters not specifically addressed by the standards.
His Honour held that if there were any other relevant considerations that were not the subject of Use Standards, then there remained a discretion.
Practical implications of the decision
While this matter concerned the operation of clause 8.8.1 of the Launceston Interim Planning Scheme 2015, the Tasmanian Planning Scheme (which will soon apply to all municipalities in Tasmania) contains a very similar provision, specifically clause 6.8.1. Therefore, this decision will be equally relevant to planning assessments made under the Tasmanian Planning Scheme.
The recognition of a residual discretion ought not be regarded as opening the flood gates or bringing about uncertainty to planning assessments. Nor does the decision elevate zone objectives to the status of standards.
Rather, if a use class is listed as discretionary in the table of uses then one must consider whether the Use Standards “cover the field”, if it does not then there is a discretion to, if supported by expert evidence, advocate a refusal.
More information
The Supreme Court’s decision can be viewed here and the Tribunal’s decision can be viewed here.
If you would like to discuss the implications of the decision, please contact Anthony Spence SC.
| 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: 22 August 2024
