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RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

Citation: Timber World Pty Ltd v Meander Valley Council and Teen Challenge Inc.
[2017] TASRMPAT 37B

Parties: Appellant: Timber World Pty Ltd

Respondent: Meander Valley Council

Second Respondent: Teen Challenge Inc.

Subject Land: 137 Main Road, Meander

Appeal No: 47/17P

Jurisdiction: Planning Appeal

Hearing Date(s): Submissions were made in writing

Decision Date: 8 June 2017

Delivered At: Hobart

Before: GP Geason, Chairman

Solicitors: Appellants: A Beeson, Simmons Wolfhagen


First Respondent: Shaun McElwaine & Associates
Second Respondent: Unrepresented

Catchwords: Planning Appeal Jurisdictional argument categorisation of use under


planning scheme- Notice of development- s56 Land Use Planning and
Approvals Act 1993
REASONS FOR DECISION
Introduction

1. Meander Valley Council (the Council) approved a development application made by Teen
Challenge Inc (the Applicant and Second Respondent) granting it a permit for a women and
childrens rehabilitation centre in the former Meander Primary School.

2. The applicable Scheme is the Meander Valley Interim Planning Scheme 2013 (the Scheme).

3. By an application to the Tribunal, the Appellant challenges the validity of that permit. The
application puts four matters in issue, and requests a preliminary ruling in relation to them. It is
well established that the Tribunal has jurisdiction to determine those matters necessary to satisfy
itself as to the existence of its jurisdiction in and over a matter before it 1. If the application is
successful the Tribunal will be without jurisdiction to determine the appeal 2.

4. The Appellant submits the following matters it says effect the validity of the permit:

a) Council has incorrectly categorised the application as one for a Hospital Services Use under
the Scheme.

b) The notice given by the Council pursuant to s57(3) of the Land Use Planning & Approvals
Act 1993 (LUPA) and Regulation 9(3) of the LUPA Regulations, was deficient because it
inaccurately specified the content of the development application.

c) The development application was invalid due to the Applicants failure to provide a site
specific study in accordance with Clause E11.6.1 of the Scheme; and

d) The development application was invalid due to the Applicants failure to provide a Bush Fire
Management Plan in accordance with Clause A2.1 of the Bush Fire Hazard Code.

5. The Tribunal has received written submissions from the Appellant and Council. Council opposes
the application and submits inter alia that the matters are not suitable for preliminary ruling. The
Applicant has declined the opportunity to make submissions.

6. The first two matters are capable of being determined by reference to the development
application. The issues raised fall for determination against the content of that document,
essentially anchored in time. A Tribunal hearing could not add to the content of that application.
Nor could it correct the Councils determination of the use classification based upon it.

7. As such categorisation of the use applied for is not a matter which requires evaluative judgment,
based on facts which are yet to be found by the Tribunal at hearing as Council submits. If the
development application was ambiguous or incomplete the Council could have obtained further
information about it at the time. It did not do that. It is not submitted that it had insufficient
information to carry out the task.

8. Categorisation of use is mandated by Clause 8.2.1 of the Scheme. Clause 8.2.4 provides guidance
with respect to the categorisation of a use when the position is not clear, directing that the use
should be categorised in the most similar use class. If falling into more than one class, the Council
is required to categorise the use by reference to the class which predominately applies. The use

1
See for example Attorney General for the State of Tasmania v Estcourt & Anor [1995] 4TASR 355 at [365] and [373]; Purton v Jackson [2016] TASSC 56 at
[25]; R v Resource Management & Planning Appeal Tribunal; ex-parte Calvary Hospital Inc [2000] TASSC 19 at [17]; Craig v South Australia (1995) 184 CLR
163 at [179]
2
See for example Drewitt v Glenorchy City Council & Rivers Australia Pty Ltd [2010] TASRMPAT 65.

File No: 47/17P Page 2 J No. 37B-2017


class determines the approach required to be taken in the assessment and it is different as
between the chosen class and the alternatives

9. The relevant use categories in this appeal Hospital Services, Residential, and Educational. They are
defined in Table 8.2 of the Scheme:

Hospital services: Use of land to provide health care (including preventative


care, diagnosis, medical and surgical treatment,
rehabilitation, psychiatric care and counselling) to persons
admitted as in-patients. If the land is so used, the use
includes the care or treatment of out-patients.

Residential Use of land for self-contained or shared living


accommodation. Examples include an ancillary dwelling,
boarding house, communal residence, home based
business, hostel, residential aged care home, residential
college, respite centre, retirement village and single or
multiple dwellings.

Educational & occasional care Use of land for educational or short term care purposes.
Examples include a child care centre, day respite facility,
employment training centre, kindergarten, primary
school, secondary school and tertiary institutions.

10. The site is zoned village under the Scheme. Hospital Services is a permitted use in the zone;
residential is a discretionary use.

The Appellants argument

11. The Appellants argument is grounded in the factual matters submitted by the applicant in support
of its development application. They assert the correct categorisation under the Scheme is
Residential. It is submitted that because those using the service are not admitted as in-patients, an
essential component of the definition of Hospital Services is not satisfied and therefore cannot
apply.

12. In the Statement of Facts and Contentions prepared by the Council, Council relies on the concept
of rehabilitation as a characteristic of the proposal as the basis for placing the use in the Hospital
Services category. At [36], it says of its contention:

Accordingly, there is no question that the proposed residential rehabilitation program


fits within the term Rehabilitation and falls within the broad concept of Health Care
as referred to in the definition of the use calls Hospital Services.

13. As to Councils reliance upon a rehabilitative focus, the Appellant submits that rehabilitation is
an inapposite description of the proposed activity, because the term cannot mean any activity
which has the effect of restoring a person to health in this context. It argues the meaning is more
focussed than that. It submits that in context, it refers to persons who have received medical
treatment and require a period of recovery under the supervision of medical professionals.

14. It also submits that it is self-evident that the proposal is not concerned with health care, because,
at Attachment 5 to the planning submission, under the heading Home of Hope Submission, the
proposal is introduced as . a 12 to 18 months residential AOD rehabilitation program, within a
therapeutic community. (AOD refers to alcohol and other drugs). At page [30], the same

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document states that Detox must be completed prior to entering the program and is not
completed onsite.

15. The Appellant notes a religious focus is emphasised, referring to excerpts within the Home of
Hopes submission that Scripture memory verse is part of each stage of the program. It
observes that the planning application, by way of example, refers to a Run Baby Run course
which includes Bait of Satan and the Father heart of God as course elements. As such it says
this is not a health service but a religious one. It submits that there is no reference to medical
treatment within the student weekly schedule and submits that use of the word student
belies a health care facility. It notes that there is two hours of chapel each day and two hours of
church on the weekend.

16. It points out that there is no suggestion that the Applicant (or operator) holds a licence to
operate a hospital under the Health Service Establishment Act 2006 and submits that the plans
contained in the development application are not consistent with health services or the Hospital
Services categorisation.

The Development Application

17. The development application is the source material for Councils assessment of the development
proposal. The development application was prepared by Rebecca Green & Associates a business
operated by Rebecca Green, who is a qualified town planner. Ms Green is also an accredited
person under Part IVA of the Fire Service Act 1979, holding a level 3A certification. (This is relevant
in respect of acceptable solutions appearing at Clause E1.5.1.1 of the Scheme). It is well
established that the categorisation of a development against the Use classifications contained in the
Scheme will be a matter for the Council. The applicants characterisation is not determinative of
the correct classification in that respect. The Appellants application does not challenge that
proposition.

18. By the same token, statements of fact about what it is that is proposed by the development are
matters entirely for the Applicant. Council is not vested with any power to embellish those facts,
or adapt them to suit its interpretation. If it requires further information it can request it pursuant
to s54 of LUPA. The responsibility vested in it is to identify the relevant use class by reference to
the facts as stated by the Applicant. Clause 8 describes the process and is referred to above.

19. The application described building work and the change of use application in these terms:

Description of work: Home of Hope Rehabilitation Centre for women and children.

Use of Building: Residential / education / hospital services.

20. Ms Green provided Council with a detailed description of the proposal 3 referencing the Scheme as
appropriate. She described the proposal as one which involved the conversion of the existing
school to a Home of Hope rehabilitation centre for women and children. Home of Hope will be a 12 to 18
month residential AOD (alcohol and other drugs) rehabilitation program that provides women with
children, pregnant women, and single women suffering from addictions and life controlling issues, access to
safe, stable environment. The program will follow the structure of the Teen Challenge program. In
overview, the program consists of the following structure:

6 week transitional group;

12 month residential program; and

3
Some of the detail about the proposal has been reproduced earlier in these reasons in the outline of the Appellants submission. It is not repeated here.

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6-12 month internship (optional).

The program is to cater for up to 12 students and their children at any one time. Students receive
individual support and counselling via mentors, external clinical psychologists and / or onsite counsellors.

21. The application included information with respect to staffing, discloses that minimal visitation from
public or family members will occur and that school aged children will be enrolled at schools in
Deloraine. It is noted that at around the seventh month stage, students are encouraged to engage
in employment or volunteer positons within the community until they have completed their
program. Classes are intended to be made available through TasTAFE for students with literacy
and numeracy issues and training pathways are stated to have been negotiated with TasTAFE to
accommodate the needs of students wishing to undertake further education after graduation.
Classification of participants as students is prevalent.

22. In his report to Council, the planning officer set out Table 8.2 of the Scheme, noting that the
planning authority must correctly classify development in accordance with the Scheme provisions
irrespective of the use classes applied for by an applicant. He concluded that the proposed use
fits within the use class definition of Hospital Services. This is part of that report:

The planning authority must correctly classify development in accordance with the
Scheme provisions irrespective of the use classes applied for by an applicant.

Use and development must be categorised in accordance with clause 8.2 of the
Scheme.

The proposed use and development described by the Planning Submission fits within
the use class definition of Hospital Services.

The primary purpose for the conversion of the Meander Primary School is to operate
a residential AOD dependency rehabilitation program from the subject site. The
purpose and objective of the proposal is to restore the health and wellbeing of
participants that have a drug dependency.

The existing buildings on the subject site will be utilised for various purposes including
accommodation for both staff and participants. The accommodation is highlighted in
red and staff accommodation is highlighted in blue on Image 5. Administration, offices,
medical room and teaching space is identified in yellow. The undercover recreation
area and gym is highlighted in green. The buildings not assigned a colour are the
kitchen and dining hall and various amenities offered on the subject site.

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The participants of the program are required to live on the subject site.

Mothers who have entered the program may have their children reside with them.
Children that live on the subject site will be required to attend school or child care.
The purpose of participants living on the subject site is for them to receive
preventative care and assessment programs. Four employees will reside on subject
site.

In examining Hospital Services, healthcare referred to in the definition includes


preventative care or rehabilitation. The Scheme does not define what is meant by
preventative care nor rehabilitation. The absence of these specific terms from the
Scheme means that the ordinary and natural meanings are given.

Preventative care is regarded as healthcare that refers to measures taken for disease
prevention rather than treatment. Rehabilitation is associated with restoring a person
to health.

While there are aspects of the rehabilitation program that can be regarded as
preventative care, the proposal is not considered to fall within the meaning of this
term. Accordingly, there is no question that the proposed residential rehabilitation
program fits within the term rehabilitation and falls within the broad concept of
healthcare as referred to in the definition of the use class Hospital Services.

It is acknowledged that there are other uses conducted on the subject site which may
be considered to fit within other definitions of Table 8.2 such as residential and
educational and occasional care. In determining the use classes that apply, clauses 8.2.2
and 8.2.5 are particularly relevant.

Clause 8.2.2

A use or development that is directly associated with and a subservient part of another use
on the same site must be categorised into the same use class as that other use.

Clause 8.2.5

If more than one use or development is proposed, each use that is not directly associated
with and subservient to another use on the same site must be individually categorised into a
use class.

The residential use component of the proposal is specifically for persons residing on
the subject site as inpatients for the purpose of receiving healthcare as part of the
Hospital Services use class. Similarly, employees residing on the subject site are there
for the purpose of operating and managing a rehabilitation centre as part of the
Hospital Services use class.

The proposal is not for a residential use within the meaning of that use class in the
Scheme.

The rehabilitation program will offer education to program participants.

Education offered on the subject site is undertaken with the purpose of providing
healthcare as part of the Hospital Services use class. Education services offered
occasionally to family members or to persons involved with program participants will

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be undertaken as part of the Hospital Services use class. The proposal is not for
educational and occasional care use class within the meaning of the Scheme.

For the reasons provided, clause 8.2.5 cannot be applied to this proposal as the other
uses of the subject site are all directly associated with and are subservient to the
primary purpose of the subject site which is the use class Hospital Services.
Accordingly, the proposed use and development must be categorised in accordance
with clause 8.2.2.

Therefore, the appropriate categorisation of the use class as described by the Planning
Submission is Hospital Services.

23. No analysis of the basis for rejecting the Residential use class nominated by the applicants is
provided.

24. Councils planning officer has placed significant weight upon the examples which are identified in
the definition of Hospital Services, satisfying himself that the proposed residential rehabilitation
program fits within the term Rehabilitation and falls within the broad concept of health care. He
wrote the residential use component of the proposal is specifically for persons residing on the
subject site as in-patients for the purposes of receiving health care as part of the Hospital Services
uses class. (Tribunal emphasis)

25. Reliance upon the examples to the apparent exclusion of the requirements of the definition for in-
patients was erroneous. In Cheetham v Goulburn Motorcycle Club Inc. 4, the New South Wales Court
of Appeal considered a use definition which contains examples or illustrations and held that a use
that accords with an illustration is only within the definition if it meets the primary definition. The
Tribunal applies that authority. Examples cannot supplant the language of the definition itself, to
the exclusion of the express requirements of that definition. As the Appellant contends,
consistently with the decision in Cheetham 5, Councils categorisation will only be the correct one if
the proposed use falls within the definition itself. This requires the use provides health care to
persons admitted as in-patients. Unless that occurs, the fact that rehabilitation is part of the
proposed use is immaterial; it does not establish a use within this category.

26. Indeed Councils determination contradicts the Proponents application documents which
specifically exclude any prospect of the use offering places to in-patients. (Rather it repeatedly
describes participants as students, and even refers to their graduation). This is the Applicants
submission in its development application:

The proposed use fits the use class of Residential of which [sic] is a discretionary use
within the Village Zone as the proposal is for a communal residence. The proposed
use could also fit the use class of Education and Occasional Care of which [sic] is a
permitted use within the Village Zone, and of which [sic] has current use rights as the
Meander Primary School ceased operating than two years ago.

The proposed use could also fit the use class of Hospital Services of which [sic] is a
permitted use within the Village Zone, although the facility provides for rehabilitation,
psychiatric care and counselling, the students are not admitted as in-patients. (Emphasis
added)

27. As such Council was required to accept that there would not be inpatients. That matter is a
factual assertion and solely within the Applicants knowledge. Council ignored that material and

4
[2017] NSWCA 83
5
Supra note 3.

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put its own gloss on the unambiguous submission of the developer as to what was proposed. That
course was not open to it. If it considered the whole of the material gave rise to ambiguity or
there was an internal inconsistency between that assertion and the whole of the material
submitted to it, it should have sought further information.

28. As it stood at the time of assessment, it is an incontrovertible fact that developers submission
contradicted an essential element of the Hospital Services use class.

29. Councils submission attempts to save the argument for later by focussing on this passage to
support the submission that it was open to it to categorise the use as hospital services within the
Scheme definition:

The proposed use and development described by the planning submission fits within
the use class definition of Hospital Services.

The primary purpose for the conversion of the Meander Primary School is to operate
a residential AOD dependency rehabilitation program from the subject site. The
purpose and objective of the proposal is to restore the health and wellbeing of
participates that have a drug dependency.

The existing buildings on the subject site will be utilised for various purposes including
accommodation for both staff and participants the participants of the program are
required to live on the subject site. Mothers who have entered the program may have
their children reside with them. Children that live on the subject site will be required
to attend school or child care. The purpose of participants living on the subject site is
for them to receive preventative care and assessment programs.

30. Reliance upon this passage is selective. Selective quotation is liable to mislead because it is an
incomplete statement of what is proposed. The Council was required to have regard to the whole
of the material. Doing so would have avoided any misconception of the proposal, based upon this
passage.

31. But even if it was a complete statement of the proposal, the Tribunal cannot find within its terms a
basis which could sustain the categorisation of the use made by the Council. The short excerpt
quoted does not describe a hospital service use as defined in the Scheme. It does not describe a
service offered to in-patients.

32. In-patient is not defined in the Scheme. The Tribunal adopts its ordinary meaning to describe a
person who is detained for the purposes of medical treatment. The Oxford English Dictionary
definition of patient includes this: one under medical treatment for the cure of some disease or
wound. The prefix in merely refers to the situation of that person, and denotes confinement at
the place at which such treatment is offered. This interpretation is consistent with the reference
to health services. This is consistent with the reference to health care within the definition. A
broad interpretation of the concept would not overcome the fact that inpatients are not intended
to be admitted at this site.

33. It is relevant to consider the nature of the services provided by the Applicant to ascertain whether
it includes the provision of such services. For example does it provide carers with qualifications
and specialisations of a health related nature? Does it include doctors, nurses, psychiatrists,
psychologists and counsellors or a combination of them. It is evident that what is proposed is in
the nature of a residential offering directed towards rehabilitation. The Appellant is correct to
draw attention to the religious or spiritual component of the programs because they serve to
distinguish the use from activities ordinarily associated with the provision of health services.

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34. The Tribunal also relies upon these facts within the development application as indicative of the
use which is proposed, and placing outside the category chosen by Council. The document to
which reference is made in this list is headed Rehabilitation Centre for Women & Children and
it was Annexure 2 to the planners report lodged in support of the application for development
approval. (References to page numbers are references to the numbers in that document):

a) Page 5 Home of Hope will be a 12 18 month residential AOD rehabilitation program


within a therapeutic community. It will provide women with children, pregnant women and
single women suffering from addictions and life controlling issues, access to a safe, stable
environment. Home of Hope offers to help women through our faith-based program, to
meet the needs of the whole person; not only their addiction but also rebuilding their self-
image, work ethic, spiritual awareness and relationships.

b) Our program will follow the structure of the highly successful global Teen Challenge
program which was originally established in New York in 1958;

c) Adduction is often just a mask for what is going on within the person. Each person and
their life journey is uniquely different to the next, so it is vital to help the individual identify
and address the causational issues, to affect long lasting recovery;

d) The program proper is facilitated through an individual, self-paced curriculum, tailored to


meet the students unique requirements, as well as therapeutic groups which provide topics
arranging from a 12-step program, recovery principles, anger management, boundaries,
parenting, relationships, sexual health, character qualities, emotional intelligence, self-esteem,
community interaction and organised sports. Students received individual support and
counselling via mentors, external clinical psychologists, and / or onsite counsellors;

e) Page 6 contains details of the business structure and identifies directors and their relevant
experience. One is director and deputy chair of Teen Challenge WA (Peter Ferrell), another
is a person with experience in management and ownership within retail businesses, holding a
diploma in business management (Tanya Cavanagh); another has a bachelor of business (Stan
Pisulak); another (Mark Brown) is the Tasmanian state director of the Australian Christian
Lobby;

f) Page 8 refers to the Teen Challenge Tasmania Mission Statement as relevant. It is


identified as a not-for-profit faith-based drug and alcohol intervention program which
attempts to turn people away from the cliff of addiction;

g) Page 13 indicates that the products / services to be offered include: Home of Hope 12
18 month residential rehabilitation program for women and women and children; the Grace
Academy, a 12 18 month residential rehabilitation program for men is proposed in the
future and an adolescent centre is also proposed in the future. The program will offer not
even once demand reduction projects; solutions seminars and programs for those who
have loved ones in the residential program;

h) Page 13 the program describes itself as competitive, offering holistic, long term mentorship
programs, integration care and follow up, along with employment ventures to support the
program and graduates;

i) Page 14 discloses insurance cover includes voluntary workers personal accident insurance,
public and product liability insurance, professional indemnity insurance and insurance over
business assets;

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j) Page 19 while membership and affiliations included the Alcohol, Tobacco and Other Drugs
Council Tasmania Inc., and the Mental Health Council of Tasmania, there is nothing in the
materials that suggests that the Applicant directly offers any services falling within these
categories;

k) Page 22 reveals a focus on assisting those with drug and alcohol addictions and other life
controlling issues and the focus is on provision of support for these people, rather that
medical treatment;

l) Page 26 it describes competitors to the proposal as Missiondale, operated by City Mission;


Live Free Tassie, offered by the Pathways and Velocity Church; the Bridge Program, offered
by the Salvation Army; and the Salvation Armys Ulverstone facility;

m) Page 30 - the Home of Hope is described as a 12- bed facility which includes children
amongst its residents. It is indicated that Home of Hope will assess applications from women
on a case by case basis. Where places are available, it is indicated that Home of Hope
endeavours to accept any applicant who is willing to work within the program guidelines
which are informed by Christian principles. It adds, For the avoidance of doubt, identify as
a lesbian is not a reason why a persons application would be refused;

n) Page 33 deals with recruitment. It is noted that initial staff are to be provided through
Global Teen Challenge and Australian Teen Challenge centres. Promotion of the project and
the need for volunteers and staff will be conducted throughout Tasmanian and Australian
Christian communities and Teen Challenge International. An internship program will operate
within the program, training graduates into these positions. Staff and volunteer exchange
program within Teen Challenge centres in Australia and globally will occur;

o) Page 32 key personnel include: Clinical psychologists and psychiatrists, general practitioner
and medical consultants. However it is recorded at page 34 that these are not part of the in-
house personnel but operate as consultants. It is noted that Teen Challenge Tasmania is a
Christian ministry and many people see helping others as their personal ministry in life and
willingly volunteer their time do not seek financial return for their services;

p) Page 38 reference is made to students graduating and post-graduation follow ups; and

q) Page 41 the centre is described as a place of hope, healing and restoration.

35. Nor is there anything in the development documents which would afford the use the
categorisation as a service providing alternative remedies or homeopathic solutions to medical
problems. All of the content points to a service providing a program offering lifestyle support. The
live in nature of the program does not morph the residents undertaking the program into in-
patients receiving health services.

36. This is not a matter of differences in interpretation of the term in-patient. For the reasons given
in relation to the definition of that term, the Tribunal finds that the proposal does not involve the
admission of in-patients The Tribunal considers that reasonable minds provided with all of the
facts submitted on the development application would so conclude, to the exclusion of the
alternative hypothesis Council advances. An interpretation as wide as that adopted by the Council
blurs the distinction between the categories of use contained in the Scheme to a point where it
becomes meaningless.

37. Accordingly the proposal is not for a use within the hospital services class, and Council was in
error in adopting that categorisation. That error taints its assessment because such use follows a

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different assessment path. The Tribunal holds that the permit is invalid and the Tribunal is without
jurisdiction to entertain an appeal on the merits.

38. The result of the Tribunals determination in respect of issue number 1 spills over into issue 2. It is
the Appellants contention that in consequence of the incorrect categorisation of the use, the
notice is also incorrect and does not comply with LUPA, nor Regulation 9 of the LUPA
Regulations. Regulation 9(3) requires that a notice is to specify the content of the development
proposal.

39. The planning notice which was published by the Council was in these terms:

Hospital Services (Rehabilitation Centre) exceeds gross floor area of 250m2 for
a non-residential use within a bushfire prone area, design and layout of parking
areas; sensitive use of attenuation distance.

40. This issue traverses a well-trodden path 6. In accordance with the Tribunals previous rulings (note
8), the Appellant contends that the misdescription would or could mislead or deflect attention
from the substantive proposal and may not excite an interest in those persons who may wish to
find out more about the proposal in circumstances where they might have, had an accurate and
correct description been provided.

41. The Tribunal accepts this submission. There is a relevant difference in the way in which the notice
describes the proposal, and the way the proposal itself is described in the application. It is a
misdescription. That misdescription is more than a technical non-compliance because it misleads
with respect to the nature of the development proposal as it is described in the development
documentation.

42. The Tribunal is satisfied that the misdescription has the potential to disguise the true nature of the
proposal with the result that persons who may have chosen to participate in the planning process,
chose not to. Whilst there can never be absolute certainty around that proposition, the potential
for that result is enough to defeat the purpose enshrined in the provisions of LUPA and the
corresponding Regulations.

43. The Tribunal is satisfied that this ground of challenge should also be upheld.

44. Issue 3 relates to the provision of a site specific study. The Appellant contends that Clause
E11.6.1 P1 makes mandatory a requirement for such study. It is in these terms:

P1 Sensitive use or subdivision

For sensitive use within an attenuation area to an existing activity listed in Tables E11.1
and E11.2 must demonstrate by means of a site specific study that there will not be an
environmental nuisance or environmental harm having regard to the:

a) Degree of encroachment; and

b) Nature of the emitting operation being protected by the attenuation area; and

c) Degree of hazard or pollution that may emanate from the emitting operations;
and

6
See Kons v Burnie City Council [2009] TASRMPAT 152; South Hobart Progress Association v Hobart City Council and Giameos [2017] TASRMPAT 5

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d) The measures within the proposal to mitigate impacts of the emitting activity to
the sensitive use.

45. The sensitive use is the proposed development, and it is within an attenuation zone. The provision
therefore applies. .

46. Site sensitive study is defined by reference to s74 of the Environmental Management & Pollution
Control Act 1994 (EMPCA). It is in these terms:

74. Environmental Impact Assessment Principles

(1) An environmental impact assessment may be required when an


environmentally relevant activity is proposed to be undertaken by the
public or the private sector.

(2) The level of assessment which may be required is to be appropriate to the


degree of significance of the proposed environmentally relevant activity to
the environment and the likely public interest in the proposed activity.

(3) Preparation of the case required for assessment of the proposed


environmentally relevant activity must be undertaken by the proponent in
accordance with the requirements of the authority responsible for
assessing the proposed environmentally relevant activity.

(4) An authority responsible for assessing the proposed environmentally


relevant activity must provide the proponent of the proposed activity with
guidance on

(a) the potential environmental impacts arising from the proposed


activity; and

(b) the issues arising from the proposed activity which might give rise to
public concern; and

(c) the level of assessment required; and

(d) the timing for each stage of the assessment.

(5) If required by the Director of Public Health, an environmental impact


assessment must include an assessment of the impact of the proposed
environmentally relevant activity on public health.

(6) An opportunity is to be provided for public consultation on the proposal


before the assessment process is complete.

(7) The authority responsible for assessing a proposed environmentally


relevant activity must publicly disclose all information relating to the
environmental impact of the proposal, except where there is a legitimate
commercial, national security or environmental reason for confidentiality.

(8) The authority responsible for assessing a proposed environmentally


relevant activity must develop procedures with a view to resolving any
conflict or dispute which may arise for consideration during the course of
the assessment process.

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(9) The environmental impact assessment is to establish the information base
for decision-making on

(a) the environmental impacts of the proposed environmentally relevant


activity; and

(b) whether the proposed activity should proceed; and

(c) any restrictions or conditions under which the proposed activity


should proceed; and

(d) the management regime under which the proposed activity should
proceed.

47. The Appellant submits that the only document submitted with the development application which
could possibly meet the definition of a site specific study is the document headed Proposed
Sensitive Use Development at Old Meander School Environmental Impacts and Attenuation
Report Seam Environmental January 2017. Then follows detailed submissions with respect to
the content of that report, and why it is said that it does not comply with the elements described
at s74 of EMPCA.

48. The Council contends that s74(1) is applicable and that it mandates such study only when an
environmentally relevant activity is proposed to be undertaken by the public or private sector 7.
It submits that environmentally relevant activity is defined in s3 of EMPCA to mean an existing
or proposed activity that may cause environmental harm, and includes a Level 1, Level 2 or Level 3
activity and an environmental nuisance. Council submits that the development and use application
the subject of the appeal is not for such environmentally relevant activity and, accordingly, the
Performance Criteria does not mandate a site specific study in that case.

49. This submission is incorrect. S74 of EMPCA is not engaged by Clause E11. 6.1 P1. Rather it is
referenced for the purposes of providing a description of what is required to be included in a site
specific study required by the Scheme. As such, the development proposal is not required to satisfy
the terms of s74(1) of EMPCA, and that provision does not exclude the mandatory requirements
of Clause E11.6.1 P1 of the Scheme which apply.

50. Accordingly Councils submission as to that issue is rejected.

51. Nevertheless the Tribunal considers that the matter of whether there has been such a report
provided is not easily undertaken in an abstract way as a preliminary point. It is difficult to judge
as a preliminary issue whether what was provided meets the requirements of the Scheme.
Accordingly, the Tribunal has determined that it will not rule on this issue at this stage.

52. In respect of the fourth matter raised, the Tribunal has reached the same conclusion. The Tribunal
notes that a Bushfire Hazard Assessment report and Bushfire Hazard Management plan prepared
by Ms Green, was attached to the development application. Whether there was compliance with
the requirements therefor, in all of the circumstances, and having regard to Ms Greens level of
accreditation, is a matter for evidence and the Tribunal is not prepared to embark upon a
consideration of that matter as a preliminary issue for the same reasons as it gave in respect of the
previous issue.

53. For the reasons given in respect of issues 1 and 2, the Tribunal has concluded that the permit is
invalid.

7
Subsection 1

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54. Accordingly, the Tribunal considers itself without jurisdiction to proceed to deal with this appeal.

55. S28(1) of the Resource Management & Planning Appeal Tribunal Act 1993 directs that each party to
this appeal is to pay its own costs. The Tribunal will consider an application for a costs order
under s28(2) if it is made in writing with supporting submissions within 14 days of the date of this
decision. If an application is made, the operation of s28(1) is stayed until further order.

56. If requested, the Tribunal will reconvene to hear any evidence in respect of any matter bearing
upon an order for costs.

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