1. Ground 1 of the appellant's grounds for application be struck out.
2. Costs be reserved.

Environment and Planning - Planning - Development assessment and control - Powers and duties - Power to determine whether permit the subject of appeal is valid

Procedure - Tribunals - Grounds of appeal - Striking out - Jurisdictional ground challenging permit but decision to grant a permit not before the Tribunal - Jurisdictional ground possibly amounting to collateral attack - Whether an abuse of process

Land Use Planning and Approvals Act 1993, ss 12, 53, 56, 62;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 75, 78, 87, 89, 120;

Attorney-General v Estcourt [1995] TASSC 65; (1995) 4 Tas R 355;

Cai v Launceston City Council [2024] TASSC 10;

Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32;

James v Department of Health [2026] TASCAT 36;

Meander Valley Council v Resource Management and Planning Appeal Tribunal (2018) 27 Tas R 342; [2018] TASSC 9;

Neilsen v George Town Council [2025] TASCAT 76;

Purton v Jackson [2016] TASSC 56; (2016) 223 LGERA 19;

S Cai v Launceston City Council and TRC Multi Property Pty Ltd [2023] TASCAT 27;

Tasmanian Conservation Trust Inc v Mary Ann's Island Pty Ltd [2026] TASSC 1;

TRC Multi Property Pty Ltd v Launceston City Council [2024] TASCAT 35

First Respondent: G Williams - Glynn Williams Legal

Second Respondent: A Spence KC, V Lightfoot - Page Seager

1. This application raises an interesting issue of statutory interpretation. The first respondent (the council) granted the second respondent (TRC) a permit under the Land Use Planning and Approvals Act 1993 (LUPAA) for a mixed-use development and the partial demolition of some buildings and the construction of another. The council subsequently granted TRC a minor amendment to its permit to construct an additional 14 hotel rooms and 5 car parks, reduce the size of the retail/bottle shop and conference rooms, and change the parking in a minor way.[1]
2. Ms Cai, a neighbour, is unhappy about the decision to amend the permit. She appeals against the amendment on several grounds. One of those grounds alleges that the permit lapsed and is no longer valid. The developer has applied to strike out that ground of appeal on the basis that it is an abuse of process. The appellant resists strike out; the council adopts a neutral position.
3. I have concluded that the ground should be struck out.

Permit reference DA0390/2022 is not a permit that applies to the land (being the land known as 123 Paterson Street, 125-133 Paterson Street and 270 Brisbane Street, Launceston) as required by s. 56 of the Land Use Planning and Approvals Act 1993 (LUPA Act) because the use and development authorised by SA0390/2022 was required to be completed within 3-years of the Launceston Local Provisions Schedule coming into effect and has not been so completed. That being the case, DA0390-2022 no longer applies to the land.

2. The ground asserts that TRC's permit has lapsed. Because it has lapsed, it cannot be varied by the council.
3. Ms Cai's position is that the permit has lapsed because the development was not completed within three years of the Launceston Local Provisions Schedule (LPS) coming into effect. This requires some further explanation.
4. TRC's development application was made and approved under the Launceston Interim Planning Scheme 2015 (IPS). The IPS has since been replaced by the Tasmanian Planning Scheme (the TPS). The TPS is a generic scheme written for adoption state-wide by each planning authority in respect of each's municipal area. It includes several 'local provisions schedules' which are schedules relevant to particular areas. One is the Launceston Local Provisions Schedule (LPS), which applies to TRC's proposal.
5. LUPAA governs land use planning and development in Tasmania. Section 56 allows an application to be made to make a minor amendment to a permit. Section 12(2) relates to permits that were granted before the LPS commenced. By that provision, the TPS does not prevent a development from being completed within three years of the LPS' commencement.
6. Ms Cai's argument is that three years have passed since the LPS commenced and, therefore, the permit has lapsed. If the permit has lapsed, a minor amendment to it could not be approved.
7. TRC's position is that the period within which it must substantially commence the use and/or development approved by the permit expires on 21 September 2026. TRC rejects the appellant's interpretation of LUPAA, s 12 and contends that the permit is valid. In any event, TRC submits that on a proper application of LUPAA, s 56, the permit's validity is not a necessary precondition for a variation.

1. Section 89 of the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act) allows, amongst other things, a ground of appeal to be struck out. I summarised the provision in Neilsen v George Town Council [2025] TASCAT 76 at [27]- [29]:

The TASCAT Act, s 89 has been considered in several cases. In E Allan v Strata Corporation No 180683 [2022] TASCAT 29, the Tribunal said at [10]: > > Section 89 of the TASCAT Act provides that the Tribunal may order that proceedings be dismissed where it believes that they are frivolous, vexatious, misconceived or lacking in substance or are otherwise an abuse of process. What might be frivolous, vexatious, misconceived, lacking in substance or an abuse of process can be protean, and the natural meaning of those words has somewhat contumelious overtones. However, their broad meaning in law is that the proceeding lacks a legal foundation to provide relief. > > The terms frivolous, vexatious, misconceived, and lacking in substance are often used in legislative provisions relating to summary dismissal. Hunt J considered the four terms in Langley v Niland [1981] 2 NSWLR 104, which has been applied in several cases of this tribunal. At 107, his Honour said that frivolous, vexatious, and lacking in substance: > > [C]learly refer to the insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all. > > Hunt J considered misconceived to mean "something which is founded upon a wrong idea as to the facts".

2. I need to determine whether the ground is an abuse of process. Put differently, does the Tribunal have the power to determine whether TRC's permit remains valid? If the Tribunal does not have that power, then the ground is an abuse of process and should be struck out.
3. The question is answered by interpreting LUPAA and the TASCAT Act. The question is not one of fact, nor does it relate to the merits of the other grounds of appeal. I need not form a view about the correctness of Ms Cai's interpretation of s 12(2), although I observe that the TRC urges a different interpretation and made some submissions as to why its interpretation should be preferred.

Does the Tribunal have the power to determine whether TRC's permit remains valid?

1. I repeat that the council decided to amend TRC's permit under LUPAA, s 56. The Tribunal's powers on hearing an appeal against that decision are prescribed by s 62(1)(d) of that Act and s 78 of the TASCAT Act. In substance, the Tribunal may:
   • affirm the decision: TASCAT Act, s 78(1)(a);
   • vary the decision: TASCAT Act, s 78(1)(b);
   • set aside the decision and substitute its own decision: TASCAT Act, s 78(1)(c);
   • set aside the decision and remit it to the council to determine the amendment application in accordance with the Tribunal's directions or recommendations: TASCAT Act, s 78(1)(d);
   • direct the council not to amend the permit: LUPAA, s 62(1)(d)(i);
   • direct the council to amend the permit: LUPAA, s 62(1)(d)(ii).
2. There is some overlap between these powers. The TASCAT Act powers are general in nature and are in addition to the specific powers conferred by LUPAA.
3. The appeal is in the Tribunal's review jurisdiction under the TASCAT Act, Pt 7, Div 3. The Tribunal's task will be to make the correct or preferable decision and to dispose of the appeal by making one or more of the orders that I have set out at [14]: s 75(1).
4. The Tribunal has no inherent jurisdiction and cannot grant declaratory relief: Purton v Jackson [2016] TASSC 56; (2016) 223 LGERA 19 at [27] (Pearce J). But, aside from its statutory powers which I have explained, the Tribunal has the power to determine whether it has jurisdiction: Attorney-General v Estcourt [1995] TASSC 65; (1995) 4 Tas R 355 at 365-366 (Wright J, Crawford J agreeing). That is, the Tribunal may inquire whether it has jurisdiction to hear and determine a particular matter.
5. I accept TRC's submission that the Tribunal need not decide whether the permit is extant. As TRC points out, the Supreme Court is the forum to determine the validity of the permit. Tasmanian Conservation Trust Inc v Mary Ann's Island Pty Ltd [2026] TASSC 1 is a recent example. As Pearce J noted in Purton v Jackson at [27], the Tribunal has jurisdiction to determine the appeal "whether or not the decision of the Council is properly described as 'invalid'."
6. Ms Cai relies on Brett J's observation in Meander Valley Council v Resource Management and Planning Appeal Tribunal (2018) 27 Tas R 342; [2018] TASSC 9 at [51]:

In this case, the council has in fact granted a permit, and an appeal has been lodged from that permit. If the council was not entitled to grant the permit because it had not complied with the statutory precondition of giving notice under s 57(3) [of LUPAA], then the Tribunal would, at the very least, be in a position to determine the appeal by directing the planning authority not to grant the permit, or alternatively setting aside the decision to grant the permit and substituting a decision to refuse it.

7. The case is of limited assistance. His Honour's remarks were made in obiter. His Honour observed that, if the Tribunal was satisfied that the planning authority had not given notice, which is something that it was required to do by s 53(7) of LUPAA, the Tribunal could refuse a permit on that basis. His Honour's remarks do not amount to a statement that the Tribunal must entertain every argument, no matter how collateral or derivative, about whether a permit the subject of an appeal is valid.
8. Ms Cai's appeal is a step removed from the example given by Brett J. In substance, ground 1 does not attack the amendment decision (which is the subject of the appeal) but instead attacks the validity of the permit itself (which is not). Although the former relies on the latter, the two remain distinct decisions and must not be conflated.
9. It is unnecessary to consider TRC's submission that ground 1 constitutes a collateral attack. Whether a collateral attack is permissible is a complex question requiring consideration of the appeal grounds, the statutory regime, and case management considerations. See generally: Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32 (FC). Strike out may not be the appropriate mechanism for determining that submission (compared to a final determination). Whether, on a taxonomical approach, ground 1 constitutes a collateral attack is not dispositive of this application.
10. Here, ground 1 not so much attacks the variation of the permit as it attacks the permit itself. The orders that the Tribunal may make, summarised above at [14], are limited to the variation. Even if I were satisfied that the underlying permit is invalid, I could not set it aside. This may result in the undesirable and incongruous position of the variation being refused based on the permit's invalidity (if Ms Cai's argument were accepted) but the permit otherwise remaining extant. Or, conversely, I may conclude that any invalidity of the permit does not invalidate any variation. In either case, the decision to grant a permit would be unaffected by the Tribunal's conclusions and orders. While any finding I may make about the permit's invalidity may have some moral force, it would not be binding or otherwise provide the parties with relief.
11. I am satisfied that the ground lacks a legal foundation to provide relief. TRC's application succeeds and ground 1 must be struck out. It follows that it is unnecessary to consider the merits of TRC's response to the ground: that s 56(1) enables the making of a minor amendment application but does not impose a threshold jurisdictional requirement that the Tribunal must determine before undertaking a review of the s 56(2) criteria.

A brief observation about a more appropriate forum: the TASCAT Act, s 87

1. The parties made submissions as to the unavailability of declaratory relief in the Tribunal and the availability of that and other relief in the Supreme Court. I have likewise referred to Tasmanian Conservation Trust Inc v Mary Ann's Island Pty Ltd. Although TRC's application has been made under the TASCAT Act, s 89, it appears that s 87 may be an alternative pathway to the same outcome: that ground 1 would be more appropriately dealt with by the Supreme Court. See my discussion of s 87 in James v Department of Health [2026] TASCAT 36 at [230]- [234].

1. The presumption is that costs follow the event when proceedings are stuck out: TASCAT Act, s 120(4). I have not received submissions about costs, including as to whether s 120(4) applies to striking out "part of a proceeding" under s 89(2) [my emphasis]. I will reserve the question of costs.
2. I order:
   1. Ground 1 of the appellant's grounds for application be struck out.
   2. Costs be reserved.

[1] The underlying development application has a long litigious history involving two published decisions of the Tribunal and one of the Supreme Court: S Cai v Launceston City Council and TRC Multi Property Pty Ltd [2023] TASCAT 27; TRC Multi Property Pty Ltd v Launceston City Council [2024] TASCAT 35; and Cai v Launceston City Council [2024] TASSC 10.