APPEALED FROM: Boland v Clarence City Council [2018] TASSC 43

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Other matters - Interpretation of performance-based planning scheme - Relevance of acceptable solution when making an assessment against corresponding performance criteria - Acceptable solution relevant to assessment of whether impact of proposal on visual amenity is unreasonable.

Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41; Henry Design and Consulting v Clarence City Council [2017] TASRMPAT 11; Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60; BP Australia Pty Ltd v Perth City (1994) 10 SR (WA) 110; Rowell v Clarence City Council [2012] TASRMPAT 94, referred to.

Environment and Planning - Environmental planning - Development control - Control of particular matters - Residential - Dwellings and houses - Meaning of "adjoining lots" and "adjoining buildings".

Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Break O'Day Council v Resource Management and Planning Appeal Tribunal [2009] TASSC 59, 19 Tas R 94, referred to.

Judgment Number: [2021] TASFC 5

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

1. I agree with the reasons for judgment of Brett J. The appeal should be dismissed.

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND

1. The appellant is the owner of a property at Cremorne. The property is located in a residential area, on the corner of Frederick Henry Parade and Cremorne Avenue. It comprises a rectangular block which has an area of 601 square metres, with two buildings, one formerly used as a take-away food shop and service station and the other as a residential dwelling. There are neighbouring residential buildings on both sides, 3 Cremorne Avenue, which shares a full length common boundary with the site, and 1 Frederick Henry Parade, which is separated from the site by a 3.5m wide lane way. A public park and the beach is on the opposite side of Frederick Henry Parade.
2. The appellant wishes to develop the property by demolishing the existing buildings and constructing a building containing five multiple dwellings. The new building would be four stories in height, with two units on each of the first and second stories and a penthouse on the highest level. The lowest level of the development would contain a carpark.
3. On 1 December 2016, the appellant applied to the first respondent, in its capacity as the relevant planning authority, for approval of the development. The applicable planning scheme is the Clarence Interim Planning Scheme 2015 (the Scheme). The Scheme is of the type commonly described as a performance based scheme. In order to obtain approval, among other requirements, a proposed development must comply with all applicable scheme standards prescribed in respect of the zone in which the land is located. It is common ground that the relevant property is located within the Village Zone. Compliance with an applicable scheme standard is achieved by meeting either the acceptable solution or the performance criterion specified for that standard. It is common ground that this development, in respect of a number of applicable standards, did not meet the relevant acceptable solution and, hence, approval depended on compliance with the performance criterion for each such standard.
4. On 25 September 2017, the first respondent refused to grant approval for the development. The reasons expressed for the refusal claimed that the proposal failed to meet the performance criteria relevant to three scheme standards. The standards in question relate to building height, and setbacks from the front, side and rear boundaries. The refusal was, in essence, based on the visual impact of the height and bulk of the proposed building on the residential amenity of adjoining properties and the impact of its height and positioning on the streetscape. These were critical factors under the tests posed by the applicable performance criteria.
5. The appellant appealed to the Resource Management and Planning Appeal Tribunal. The Tribunal, as it was required to do by applicable legislation, conducted a fresh consideration of the application. The second respondent became a party to the appeal and agitated an issue concerning compliance with a scheme standard relating to land contamination. The Tribunal dismissed the appeal, essentially agreeing with the first respondent that the proposal did not comply with the performance criteria relating to building height and front, side and rear setbacks. The Tribunal took the view that it did not need to determine the issue raised by the second respondent.
6. An appeal by the appellant to the Supreme Court from the Tribunal's decision was dismissed by the Chief Justice on 25 September 2018. That appeal, and the grounds of appeal to this Court from his Honour's decision, raise a number of questions concerning the interpretation and operation of the Scheme in respect of the relevant standards. By s 25 of the Resource Management and Planning Appeal Tribunal Act 1993 (the Tribunal Act), the appeal to the Supreme Court from the Tribunal must be "on a question of law". It is uncontroversial that the questions raised before the Chief Justice, and in this appeal, answer that description.

1. As already noted, the assessment of the proposal by both the planning authority and on appeal by the Tribunal turned on whether the proposal met the performance criteria relevant to certain scheme standards. This approach is in accordance with the intended operation of the Scheme. The nature of this Scheme, and its intended method of operation as a performance based scheme, was described by me in Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41 as follows:

"It is common ground that the scheme, in particular, those parts that prescribe its operation, complies with the format set out in Planning Directive 1 (PD1), a Ministerial Directive issued under what was at the relevant time s 13 of the LUPA Act. The respondents submit that the scheme provisions, when read together, clearly evince an overall intention to operate on a performance-based approach, that is, to achieve certainty in respect of the assessment of development, and the exercise of discretion, by reference to the specific scheme standards as defined by the acceptable solutions and performance criterion. I accept this submission. That intended operation of the scheme becomes apparent when one examines its various interacting provisions.

The operation of the scheme is the subject of cl 7.0. Clause 7.5.1 provides that a use or development must comply with each applicable standard in a zone, specific area, plan or code. Clause 4.0 defines 'standard' to mean, '... the objective of a particular planning issue and the means of satisfying that objective through either an acceptable solution or performance criterion presented as a test to meet the objective'. The role of the acceptable solution or performance criterion as a 'test' in respect of the relevant standard is confirmed by cl 7.5.3 which provides that:

'Compliance for the purposes of subclause 7.5.1 consists of compliance with the acceptable solution or performance criterion for that standard'."

1. The relationship between the objective specified in respect of the scheme standard and the test proposed by the acceptable solution and performance criteria was further described by me as follows:

"A performance-based system employs a top down approach, where the various levels of objectives and principles are eventually distilled into a practical test defined by performance criteria and acceptable solutions. This approach provides a reasonable level of predictability which is the intended operation of such a scheme."

1. By virtue of cl 8.8.1, because compliance with applicable scheme standards relied on performance criteria, the grant of a permit for this development is discretionary. The top down operation of the scheme, arising in particular from the provisions of cl 7.5.3, as explained above, means that compliance with the performance is critical to the exercise of that discretion.
2. The scheme standards which the Tribunal found were not met by the development are as follows:

To ensure that building height contributes positively to the streetscape and does not result in unreasonable impact on amenity of adjoining land.

(a) be consistent with any Desired Future Character Statements provided for the area;

(b) be sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by:

(ii) overshadowing and reduction of sunlight to habitable rooms and private open space on adjoining lots to less than 3 hours between 9.00 am and 5.00 pm on June 21 or further decrease sunlight hours if already less than 3 hours;

(iii) visual impact when viewed from adjoining lots, due to bulk and height;

(c) not unreasonably overshadow adjacent public space;

(d) allow for a transition in height between adjoining buildings, where appropriate;

To ensure that building setback contributes positively to the streetscape and does not result in unreasonable impact on residential amenity of adjoining land.

Building setback from frontage must be parallel to the frontage and must be:

Building setback from frontage must satisfy all of the following:

(a) be consistent with any Desired Future Character Statements provided for the area;

(b) be compatible with the setback of adjoining buildings, generally maintaining a continuous building line if evident in the streetscape;

(c) enhance the characteristics of the site, adjoining lots and the streetscape,

Building setback from side and rear boundaries must be no less than:

Building setback from side and rear boundaries must satisfy all of the following:

(a) be sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by:

(ii) overshadowing and reduction of sunlight to habitable rooms and private open space on adjoining lots to less than 3 hours between 9.00 am and 5.00 pm on June 21 or further decrease sunlight hours if already less than 3 hours;

(iii) visual impact, when viewed from adjoining lots, through building bulk and massing;

1. The Tribunal's conclusion that the proposal did not comply with these standards can be summarised as follows:
   • Cl 16.4.1 is concerned with building height. The proposal did not meet the acceptable solution prescribed by cl 16.4.1 A1, because it exceeded 8.5 m in height. The uncontested evidence was that it reached a maximum height of 9.5 m, with the overall height varying between 8.3 m and 9.5 m. Hence, compliance with this standard depended on meeting the performance criteria specified in cl 16.4.1 P1. The Tribunal concluded that the proposal failed to meet the criterion in (b)(iii) because its visual impact due to its height and bulk when viewed from both 3 Cremorne Avenue and 1 Frederick Henry Parade would have an unreasonable adverse impact on the residential amenity of the occupants of each property. The Tribunal further concluded that the proposal failed to meet criterion (d) because it did not satisfactorily allow for a transition in height between it and the residential building on 1 Frederick Henry Parade.
   • Both performance criteria prescribed by cl 16.4.2 were applicable because the proposal did not comply with either acceptable solution. The setbacks from Cremorne Avenue and Frederick Henry Parade are each less than 4.5 m, and there is no setback from each side boundary. The Tribunal noted an agreed fact that the front setback from Cremorne Avenue complied with the relevant performance criteria. However, it concluded that the setback from Frederick Henry Drive was not compatible with the setback of the building at 1 Frederick Henry Drive. The setback of the proposed building from that frontage is 2.5 m, whereas the building on 1 Frederick Henry Drive is setback 21 m. Hence, the Tribunal found that the proposal failed to comply with the performance criteria at (b). The Tribunal also found that the proposal did not comply with (c) on the basis that the setback from Frederick Henry Drive did not enhance the characteristics of the site, the adjoining lot or the streetscape.
   • With respect to the side and rear boundaries, the performance criterion in contention was (iii) which required the setbacks be sufficient to prevent unreasonable adverse impact on residential amenity on adjoining lots by visual impact through building bulk and massing. The Tribunal concluded that the proposal did not meet this test. Its consideration of that question was closely related to the performance criteria relevant to the height of the building.
2. The appellant does not dispute the applicability of these criteria nor their critical role in the approval of the development having regard to the operation of the Scheme as outlined above. However, before the learned primary judge, the appellant argued that the Tribunal had made some fundamental legal errors with respect to the interpretation and operation of some of the said criteria. His Honour rejected each of these arguments. The grounds of appeal before this Court assert that his Honour erred in doing so. It is convenient to deal with the primary judge's approach within the context of a discussion of each ground of the appeal to this Court.

1. This ground concerns the Tribunal's assessment of the visual impact of the proposed building on the residential amenity of the occupants of the neighbouring properties. In that respect, it is relevant to the Tribunal's conclusion in relation to the performance criteria relevant to building height and side and rear setbacks. As already discussed, the critical consideration relevant to the Tribunal's assessment under those criteria were that the visual impact arising from the height, bulk and mass of the proposed building and its proximity to the boundaries of the lot, would unreasonably impact the residential amenity of the occupants of the neighbouring properties. The question raised by this ground is whether in assessing visual impact for the purpose of the said criteria, it is permissible to take into account a comparison between the impact of the proposal and that of a building constructed in accordance with the relevant acceptable solution.
2. At the Tribunal hearing, each party adduced opinion evidence from expert planners relating to all relevant considerations, including the evaluative assessment of visual impact. The planner called by the appellant, Irene Duckett, in a report placed before the Tribunal, expressed the opinion that the height and bulk of the proposed building, and its positioning on the land, will not result in unreasonable adverse visual impact on the residential amenity of the neighbouring properties, nor adversely impact the streetscape. In explaining her reasons for this conclusion, she made comments which indicated that she had taken into account as a relevant consideration, a comparison between the impact of the proposed building and one constructed to the "permitted height" of 8.5 m. This is clearly a reference to the acceptable solution relevant to building height contained in cl 16.4.1 A1. Ms Duckett also made similar comments in relation to the impact of side and rear setbacks. It is not entirely clear from the report as to the weight Ms Duckett placed upon these comparisons in forming her opinion, but the Tribunal's finding that she did incorporate them into her assessment of the visual impact of both building height and setbacks was not disputed either before the primary judge or this Court.
3. The issue of the relevance of such a comparison was agitated before the Tribunal. It considered conflicting decisions of differently constituted Tribunals in past cases on this question, and ultimately preferred the reasoning adopted in a decision of Henry Design and Consulting v Clarence City Council [2017] TASRMPAT 11. In that decision, the Tribunal concluded that, unless otherwise expressly prescribed by the scheme, the acceptable solution in respect of the relevant standard is irrelevant to consideration of compliance with the performance criteria. The Tribunal applied this conclusion to Ms Duckett's evidence in the following way:

"Ms Duckett undertook an assessment of the Proposal's compliance with the performance criteria in Clause 16.4.1 and 16.4.2 but having regard to the extent that such Proposal exceeded what is permitted by the acceptable solutions under those clauses. In her evidence, Ms Duckett proceeded on the basis that this approach was an acceptable analysis or basis for assessment and it was submitted by the Appellant that the Proposal 'seeks a discretion with respect to height of only one additional metre for only part of the top floor.'

Given the Tribunal's determination in paragraph 36 above, the basis of the assessment of impact of the Proposal adopted by Ms Duckett means that her evidence in that regard is not of assistance to the Tribunal."

1. Before the primary judge and this Court, the appellant argued that the Tribunal erred by following Henry Design and Consulting, and rejecting the relevance of Ms Duckett's evidence because it was based, at least in part, on the impugned comparisons. The appellant submitted that the point was correctly decided and applied in a competing decision of a differently constituted Tribunal in Rowell v Clarence City Council [2012] TASRMPAT 94. In that decision the Tribunal had said at [13]:

"In assessing whether the applicable Performance Criteria are satisfied the Appellants submitted that the proper approach is to look first at what might have otherwise been permitted as of right (that is to say, in compliance with the applicable Acceptable Solution) and then compare that result with the actual proposal. Such an approach is, in the Tribunal's respectful view, entirely appropriate. Necessarily assessments of matters as imprecise as 'streetscape qualities', 'consistency with Statements of Desired Future Character', 'adequate visual separation' and the like requires a consideration of what might be reasonably expected - if only to attempt to avoid as far as possible subjective considerations reigning supreme. The reasonable benchmark, as it were, is, in the Tribunal's view, to be found in what may be constructed in accordance with the empirical standards imposed by the appropriate Acceptable Solution. This is the approach the Tribunal will apply."

1. The learned primary judge dealt with this question in the following way:

"The word 'or' in cl 7.5.3 clearly indicates that the question whether a development complies with an 'acceptable solution' and the question whether the same development complies with a 'performance criterion' are two completely separate questions. Thus, in determining whether a proposed development complies with cl 16.4.1, it would be utterly inappropriate to consider the 'performance criteria' when determining whether the proposed building height exceeded 8.5 metres.

In determining whether a proposed development satisfies a 'performance criterion', there is no reason why it should be mandatory for a decision-maker to give any weight to any corresponding 'acceptable solution'. It may be appropriate on occasions for the council, or the tribunal standing in the shoes of the council, to accept that the authors of the planning scheme considered that satisfaction of an 'acceptable solution' would usually promote a relevant objective. On that basis, an 'acceptable solution' could sometimes be treated as relevant for the purpose of determining whether a 'performance criterion' is satisfied. However relevance and weight would be matters for the decision-maker - either the council or the tribunal. It certainly cannot be said that the 'acceptable solutions' in the subclauses that are relevant to this appeal were, as a matter of law, relevant considerations that the tribunal had a duty to take into account when determining whether 'performance criteria' were satisfied."

1. I respectfully agree with his Honour that a primary decision-maker is not obligated to take into account the acceptable solution when making an evaluative judgment under performance criteria. There is no question that the acceptable solution and performance criteria are each individually separate and sufficient methods of complying with the relevant scheme standard. Invariably, as in this case, the acceptable solution is intended to provide a certain and quantifiable way of complying with the relevant standard, whereas performance criteria will prescribe a qualitative test requiring an evaluative judgment. The rationale underlying the relative role of each within the operation of the planning scheme was explained by me in greater detail in Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60 at [22]:

"Context derived from the overall structure and other relevant provisions of a planning scheme, is particularly important in the construction of a performance criterion in a performance-based planning scheme. The provisions under consideration in this case demonstrate attributes which are not unusual in such schemes. Such provisions often appear to be drafted by persons without legal training. They manifest an attempt to codify and establish general standards for the purpose of regulating an almost unlimited range of potential uses and developments. The words used are often intended to apply qualitative tests which require an evaluative judgment against standards which are nebulous, and often conceptual and/or aspirational. This uncertainty is inherent in the nature of planning. The majority of planning controls are intended to confine and regulate development in a general way, without imposing unnecessary restriction and prescription. This is typically so in respect of performance criteria contained within a performance-based scheme. Acceptable solutions, where provided, are by their nature, usually much more certain and quantifiable."

1. On the other hand, I do not accept that the acceptable solution is necessarily irrelevant to an evaluative assessment under performance criteria. As the Tribunal itself observed, in respect of some performance criteria, consideration of the acceptable solution is expressly incorporated as a relevant factor. However, such incorporation may also arise by necessary implication. For example, under the criteria relevant to building height and side and rear setbacks, the evaluative assessment required was whether the visual impact would result in unreasonable adverse impacts on residential amenity. Amenity is defined by the Scheme as meaning "in relation to a locality, place or building, any quality, condition or factor that makes or contributes to making the locality, place or building harmonious, pleasant or enjoyable". The Chief Justice noted that "residential amenity" was not defined, but concluded that it should be interpreted as meaning "amenity of adjoining land as residential land". Accordingly, the relevant criteria requires the decision-maker to make an evaluative judgment as to the extent to which the height and bulk of the proposed building, when viewed from the adjoining building, will adversely affect to an unreasonable extent, the harmonious, pleasant or enjoyable use of that building as a residence.
2. The question of what is reasonable is critical to this assessment. The criteria in question provide no express guidance as to how the decision-maker should assess that question. It is clear that the criteria assume the existence of some impact and imply acceptance of same to a reasonable extent. Any building will have some impact on the visual amenity of an adjoining property. The performance criteria is clearly not intended to provide an adjoining land owner with a perfectly unrestricted visual outlook. Further, an assessment of residential amenity in a planning context cannot be made in isolation from the legitimate expectations provided for the land in question by the overall effect of applicable planning controls. See for example, BP Australia Pty Ltd v Perth City (1994) 10 SR (WA) 110. In order to assess whether the proposal will "prevent unreasonable adverse impacts on residential amenity of adjoining lots", it must be relevant to consider what the planning scheme accepts as an acceptable building on the land. This is not to say that a permitted development should constitute some form of benchmark, and that the evaluative assessment under the performance criteria should only concern itself with the difference between what is proposed and what is permitted. However, the need to assess what is reasonable must balance the entitlement of the adjoining land owner to a harmonious, pleasant and enjoyable outlook with the nature of development contemplated throughout the immediate locality. It is this level of contemplated development which provides the context, which will directly inform the level of amenity considered "reasonable" by the planning scheme. The context must take into account in a general way buildings which will be permitted under that planning control.
3. However, in making an evaluative assessment under a particular performance criterion, it will not necessarily be appropriate to take into account a comparison with the corresponding acceptable solution, in isolation from other relevant standards. Having regard to cl 8.7.1 of the Scheme, a development of the nature proposed will only be permitted if it complies with each applicable standard and does not rely on a performance criteria to do so. In other words, a permitted development is one that complies with all relevant acceptable solutions, without reliance on any performance criteria at all. Only a building that so complies can be considered permitted under the Scheme, and hence inform assessment of what is the reasonable expectation of the Scheme for such development. Accordingly, in considering questions of height and bulk, it is meaningless to consider only a building that does not exceed 8.5 metres in overall height, if the hypothetical building must otherwise rely on performance criteria to achieve compliance with other standards in the Scheme, for example those relating to setbacks. All such aspects are capable of contributing to the visual impact of the building. It is not clear from the material provided to this Court whether Ms Duckett approached her consideration of this question correctly. This issue does not seem to have been explored in any depth by the Tribunal because it simply regarded her evidence as fundamentally nullified by her consideration of the acceptable solutions.
4. In my view, by its absolute rejection of the relevance of a building constructed in accordance with scheme standards achieved by compliance with applicable acceptable solutions, to the evaluative assessment required by the relevant performance criteria, the Tribunal erred in law. With respect, I consider there is also an error in the reasoning of the Chief Justice in relation to this question. It follows from what I have already said that I do not take issue with his Honour's view that it is not mandatory for a decision-maker to give weight to a corresponding acceptable solution and that it is appropriate on occasions for the decision-maker to take into account that an acceptable solution will promote the relevant objective. However, it seems to me that his Honour has misconstrued the manner in which the Tribunal approached this question. His Honour concluded that the Tribunal did not err in law because it did not have a duty to take into account the acceptable solution as a relevant consideration under the performance criteria. However, the Tribunal did not simply elect to disregard the acceptable solution. It followed Henry Design and Consulting, and therefore concluded that it was bound in law to disregard the acceptable solution, and, hence, completely ignored Ms Duckett's evidence. This constituted an error of law. The learned primary judge erred by failing to identify the Tribunal's error.
5. It is impossible for this Court to draw any conclusions as to the effect of the Tribunal's erroneous approach on its assessment under the relevant performance criteria. In fact, it is not possible to assess whether the Tribunal was actually presented with evidence of what could be constructed on the site on a permitted basis. As already noted, it was not mandatory for the Tribunal to make its assessment under the performance criteria only on the basis of the difference between a permitted building and the proposed building, but on the other hand, if it was actually presented with this evidence, then it was not bound to ignore same. It ought to have taken that evidence into account as part of its overall assessment of the reasonableness of the relevant impact.
6. Accordingly, I would uphold ground 1. However, as I will discuss in due course, this does not mean that this appeal will succeed.

1. This ground arises from a further matter which the Tribunal excluded from its consideration when assessing the impact of the proposal for various purposes under the performance criteria. The matter in question is the relevance to an assessment of the impact of the proposal, of a comparison between the impact already arising from the existing characteristics of the site and the impact of the proposed building. This was a further factor taken into account by Ms Duckett in forming her view as to whether the impact of the proposal was unreasonable. The appellant argued that the Tribunal was obliged to make findings about the present characteristics of the site and to utilise those findings as relevant considerations when assessing the extent and reasonableness of the impact of the proposal on amenity. The argument would seem to rely on the proposition that the assessment of existing amenity for the purpose of determining adverse impact, must take into account the impact of the existing characteristics of the site, including existing buildings.
2. The Tribunal's view on this question was expressed in a single sentence:

"In assessing the impact of the proposal, what is currently on the site is not a relevant matter per se."

1. The primary judge referred to this issue as the "future with future without" test. His Honour agreed with the Tribunal and concluded that the focus of the performance criteria "is on the proposed future situation, not a comparison between the proposed future situation and the present situation". The appellant argues that his Honour was in error in reaching this view.
2. As already noted, in order to assess the amenity of adjoining land, it is necessary to consider "any quality, condition or factor that contributes to making the locality, place or building harmonious, pleasant or enjoyable". The existing characteristics of the site may be relevant if they contribute to a general assessment of the existing amenity of the area. However, the argument advanced by the appellant would require a more extensive consideration of the existing site conditions than this. The argument, as I understand it, is that the existing site conditions provide a benchmark of existing amenity, and constitute a starting point for the assessment of the impact of the proposal. I reject this argument. The use of the existing characteristics of the site for this purpose has no express or implied basis in the planning scheme. Further, in determining the reasonable expectation of amenity in the area, an existing building on the site can be distinguished from a new building compliant with all scheme standards, which as discussed in respect of ground 1, may provide some evidence of the level of amenity envisaged by the planning scheme in the relevant location. Except to the extent that existing buildings may contribute to an understanding of the general level of amenity relevant in the area, they can otherwise have no relevance to tests prescribed by the applicable performance criteria.
3. I agree with the Chief Justice's conclusion about this question. There is no merit in ground 2.

1. This ground relates specifically to the performance criteria contained in cl 16.4.2 P1(b). That performance criteria provides that the setback from frontage must "be compatible with the setback of adjoining buildings, generally maintaining a continuous building line if evident in the streetscape".
2. As already noted, it was an agreed fact before the Tribunal that the proposal complied with this performance criteria with respect to Cremorne Avenue. The issue related to the residential building on 1 Frederick Henry Parade. In this respect, the Tribunal made the following findings:
   • There is no continuous building line evident along Frederick Henry Parade.
   • However, cl 16.4.2 P1(b) requires that the setback from frontage of the proposed building be compatible with the setback of adjoining buildings, irrespective of whether there is a continuous building line evident in the streetscape.
   • That the building on 1 Frederick Henry Parade is an adjoining building for the purposes of the relevant performance criteria.
   • That the setback of the proposed building is not compatible with the setback of the building on that property.
3. The appellant advanced the following arguments to the primary judge:
   • That on the proper interpretation of the planning scheme, the building on 1 Frederick Henry Parade was not an adjoining building to the proposed building, because the corresponding lots were not physically contiguous.
   • That, in any event, the requirement for compatibility only arises if there is a continuous building line evident in the streetscape. In other words, subpar (b) contains only one criterion, not two.
4. The primary judge rejected both arguments. His Honour concluded that the building on 1 Frederick Henry Parade was an adjoining building and, further, that the criterion required compatibility with the setback of that building, notwithstanding the absence of a continuous building line.
5. Although both arguments are incorporated into ground 3 in respect of the appeal before this Court, at the hearing of the appeal, the appellant did not press the contention that the building on 1 Frederick Henry Drive should not be regarded as an adjoining building for the purposes of the performance criterion. This position was appropriate. The learned primary judge was clearly correct in his conclusion on this question. His Honour referred to a number of authorities in which the word "adjoin" or "adjoining" has been interpreted in context, but generally with a wide meaning. See for example: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Break O'Day Council v Resource Management and Planning Appeal Tribunal [2009] TASSC 59, 19 Tas R 94. His Honour also considered the context of the use of the word "adjoining' in the performance criterion having regard to other aspects of the scheme, including the "Zone Purpose Statements" relevant to the Village Zone, and the general nature of the local area. His Honour summarised his consideration at [30]:

"In hamlets, villages and small rural centres, it is uncommon for residential buildings to be contiguous. Residential lots in such places are sometimes separated by narrow laneways like the laneway that runs along the northern boundary of the subject property. The clauses in question are concerned with streetscapes and the impact of proposed developments on the 'amenity' or 'residential amenity' of other land. If the appellant's contentions are correct, those clauses should be construed so that they would not apply when two residences were separated by a narrow laneway, and the provisions as to adjoining buildings would apply only to contiguous buildings. Such results would be entirely inconsistent with the context and purpose of the clauses. Clause 4.1.1, when it applies, requires only that words be given their 'ordinary' meaning, and that is not necessarily a literal meaning. Having regard to the authorities as to the meaning of 'adjoining' and the context and purpose of the relevant clauses, it is clear that the tribunal did not err in law by giving the word 'adjoining' a wide meaning where it appears in those clauses.

1. This reasoning is unimpeachable. I agree with and endorse his Honour's approach and conclusion in respect of this question. The interpretation of the criterion having regard to the context of its use within the planning scheme is entirely consistent with principle. See Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal (above) at [20]-[21]. When interpreted in this way, physical contiguity is unnecessary. The Tribunal's factual finding that the building on 1 Frederick Henry Parade is an adjoining building did not involve an error of law. I reiterate that the appellant did not strongly contend to the contrary.
2. However, the appellant did maintain his argument with respect to the second aspect of this ground. The appellant argues that the requirement of compatibility with adjoining buildings is meaningless and unachievable, unless it relates to the maintenance of a continuous building line evident in the streetscape. Hence, the appellant argues that the criterion should be read as a whole, and it will only apply if there is such a building line evident in the streetscape, and then only for the purpose of the maintenance of that line.
3. The primary judge approached this question simply as a matter of grammatical interpretation. On that basis, his Honour concluded that the requirement of compatibility stood alone, and that the need to maintain a continuous building line was a separate and discrete criterion, which only applied if such a line was evident in the streetscape. I agree with his Honour's interpretation of the clause, and also agree that this interpretation is consistent with the plain meaning of the provision. However, I would go further. In my view, this construction is supported by the context derived from the surrounding provisions of the Scheme, in particular the scheme standard within which the criterion is contained. As the Tribunal noted, the sentence in fact incorporates two different concepts. Compatibility with adjoining buildings requires "harmony or broad correspondence with" the adjoining buildings. It does not necessarily require the maintenance of a continuous building line formed by those buildings, but that requirement will be added if a continuous building line is evident in the streetscape. The use of the criterion to address two separate planning outcomes is consistent with the objective of the standard. The objective of cl 16.4.2 is to ensure that the building setback:
   • contributes positively to the streetscape, and
   • does not result in unreasonable impact on residential amenity of adjoining land.
4. Streetscape and residential amenity of an adjoining block are separate and discrete planning objectives. This dichotomy is reflected in the criterion. While compatibility can address both considerations, it certainly encompasses the residential amenity of an adjoining block. However, the maintenance of a continuous building line would seem only to relate to streetscape. This approach is also reflected in criterion (c).
5. I reject the appellant's argument that compatibility with an adjoining building only has meaning and can be practically achieved within the context of the maintenance of an existing building line. The Tribunal correctly understood that compatibility is a broad aspirational concept, which incorporates consideration of residential amenity, and exercised its judgment about this question on that basis. This is consistent with the type of evaluative judgment required of a primary decision-maker by performance criteria under a performance based scheme, as explained in the passage from Raff Angus set out above_._ The appellant has not identified an error of law in respect of the Tribunal's approach to this assessment.
6. In my view, there is no merit in ground 3.

1. Having identified an error in the learned primary judge's reasoning in respect of the first ground, the question arises as to the nature of the orders that should be made by this Court. This appeal is by way of rehearing. See Supreme Court Civil Procedure Act 1932, s 46, Supreme Court Rules 2000, r 657. The Court has the power to make any order or determination which ought to have been given or made by the court at first instance: Supreme Court Civil Procedure Act, s 47.
2. By s 25(5) of the Tribunal Act, the court at first instance had power to make "such orders as it considers appropriate". By s 25(6), those orders included an order affirming the Tribunal's decision or setting it aside and making an order in substitution, or remitting the matter to the Tribunal for further consideration. It follows that this Court has identical power.
3. When dismissing the appeal from the Tribunal, the primary judge noted that even if the Tribunal had erred in law in applying one of the impugned criteria, it could make no difference to the outcome because other relevant performance criteria had not been satisfied. Accordingly, his Honour would have dismissed the appeal in any event. This reasoning applies cl 7.5.1 of the Scheme which requires a development to comply "with each applicable standard in a zone". As already discussed, compliance with a standard depends on compliance with either the acceptable solution (if there is one) or the performance criterion applicable to that standard.
4. Although I have determined that the Tribunal made the error of law identified in ground 1, I take a similar approach to that taken by the primary judge. The error identified would clearly impact the Tribunal's consideration of the performance criteria at cl 16.4.1 P1(b)(iii) and arguably cl 16.4.2 P2(iii), although it is, of course, impossible for this Court to assess the effect that a reconsideration in accordance with law would have on the outcome. However, the error does not affect the Tribunal's conclusion in respect of cl 16.4.2 P1 (b) and (c), and no other error of law has been identified which would affect the Tribunal's determination under either criteria.
5. It follows that the proposal does not comply with all applicable standards in the zone. There is, therefore, no point in remitting the application generally or in respect of any matters affected by the identified error of law to the Tribunal for reconsideration, because the ultimate outcome, the refusal of a permit, must inevitably be the same. Accordingly, I would dismiss this appeal.