List the appeal for directions on a date to be fixed.

Environment and Planning - Planning appeal - Competency of appeal - Parcel of land particularised incompletely in application form - Parcel of land nonetheless apparent - Substantial compliance with legislation and scheme sufficient - Development application valid - Appeal competent.

Acts Interpretation Act 1931, s 10A;

Land Use Planning and Approvals Act 1993, ss 51, 54, 61;

Environmental Planning and Assessment Act 1979 (NSW), s 77.

Attorney-General (Tas) v Casimaty [2024] HCA 31; (2024) 261 LGERA 177;

Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364;

Mather v Kingborough Council [2025] TASCAT 79;

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34.

1. This is the determination of a preliminary issue in an appeal under the Land Use Planning and Approvals Act 1993 (LUPAA). The appellant (the school) submitted a development application to the respondent (the council). The council wrote to the school and requested more information. The school appeals against the requests for information under s 61(3), contending that the council did not reasonably require the information to determine the development application.
2. The council submits that the development application is invalid and therefore the appeal incompetent. It says that the development application did not identify every parcel of land the subject of the application and that, in consequence, the council's requests for information were not requests under s 54 and therefore not amenable to appeal under s 61(3).
3. These are my reasons for finding the development application to be valid and, therefore, the appeal competent.

1. The school wants to build a new gymnasium, classrooms, and storage shed. It submitted a development application to the council on 28 March 2025. The application was made using a form, containing the council's letterhead, titled 'Planning Permit Application for Development/Use' (the form).
2. The form contained a section headed 'Subject Site', with the following description:

If your development includes more than one site, or works over another property you must include details of both.

3. The school listed 32 Maranoa Road, Kingston, more particularly described as certificate of title 132644/1, as the land on which development was proposed.
4. It appears to be common ground that the development would extend beyond that title to an untitled area of land marked as Sherburd Street on the former's certificate of title. This land was not referred to specifically in the 'Subject Site' section. For convenience, I will call this 'the untitled land'.
5. The council was aware, at least in a constructive sense, that development would extend to the untitled land because the council later requested that the school provide evidence of consent on the part of the landowner. It appears that the council believed, erroneously as it transpired, that it owned the untitled land.
6. The council told the school that the application was invalid because it did not include written permission from and declaration of notification of the owner of the untitled land. It requested that the school provide this information. The council's letters expressly stated that its requests were not requests made under s 54 of the Act.
7. It also appears to be common ground that the last known person with a legal interest in the untitled land died in 1883 and that it has been exclusively occupied by the school since at least as far back as 1999.

1. The starting point is to identify the requirements of a valid development application. LUPAA, s 51 relevantly provides:

51. Permits > > (1) A person must not commence any use or development which, under the provisions of a planning scheme, requires a permit unless the planning authority which administers the scheme, the Commission, or the Tribunal, has granted a permit in respect of that use or development and the permit is in effect or a major project permit has been granted in respect of that use or development and the permit is in effect. > > (1A) A person may apply to a planning authority which administers a planning scheme for the granting of a permit for a use or development which under that scheme requires a permit to be granted in respect of that use or development. > > (1AA) An application is to be in a form, if any, approved by the Commission. > > (1AB) A planning authority must not refuse to accept a valid application for a permit, unless the application does not include a declaration that the applicant has - > > (a) notified the owner of the intention to make the application; or > > (b) obtained the written permission of the owner under section 52 . > > (1AC) For the purposes of subsection (1AB) , a valid application is an application that contains all relevant information required by the planning scheme applying to the land that is the subject of the application. > > ...

2. The applicable planning scheme is the Kingborough Interim Planning Scheme 2015 (the scheme). Clause 8.1.2 provides:

An application must include: > > (a) a signed application form; > > (b) any written permission and declaration of notification required under s.52 of the Act and, if any document is signed by the delegate, a copy of the delegation; > > (c) details of the location of the proposed use or development; > > (d) a copy of the current certificate of title for all land to which the permit sought is to relate, including the title plan; and > > (e) a full description of the proposed use or development.

1. Section 54 of LUPAA allows a planning authority to request additional information before it considers an application. Subsection (1) reads:

A planning authority that receives an application for a permit (other than a permit referred to in section 40T) may - > > (a) if the permit sought is a discretionary permit, by notice in writing served on the applicant within the period of 21 days from the day on which it receives the application; or > > (b) if the permit sought is not a discretionary permit, by notice in writing served on the applicant within the period of 14 days from the day on which it receives the application - > > require the applicant to provide it with additional information before it considers the application.

2. Section 61(3) allows an applicant to appeal against a requirement for additional information. See generally: Mather v Kingborough Council [2025] TASCAT 79 at [8]- [11].

1. The council submits that its request for information was not a request made under s 54. That is because, it says, for an application to be valid, the application form must detail "the location of the proposed use or development". The council says that the school failed to do that. Therefore, the council's request for further information regarding the owner of the untitled parcel of land was not a request for information under s 54 of the Act. The school could therefore not appeal under 61(3). In short, the council contends that the form must be filled out precisely.
2. The school submits that neither s 51(1AC) of LUPAA nor cl 8.1.2 of the scheme requires that the council's form "be completed as a predicate to validity". It contends that the mandatory requirements for validity are set out by s 51(1AC) and cl 8.1.2. It contends that the council's request must be treated as a request under s 54 and therefore amenable to appeal under s 61(3).

1. In interpreting s 51, I start with the text of the provision whilst, at the same time, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14].
2. Applying this approach, I accept the school's submission that s 51 does not require that the application be completed to a standard of perfection. Rather, it is compliance with LUPAA and the scheme which is required. So much is apparent from the context and purpose of s 51.
3. First, s 51(1AC) requires that an application contain "all relevant information required by the planning scheme applying to the land that is the subject of the application". On a plain reading, the subsection does not require that "all relevant information" be provided in a particular part of the form. Rather, it requires that the information be contained within the application.
4. Second, the purpose of s 51 is to allow a permit authority to properly assess an application against the scheme requirements. Here, cl 8.1.2(c) of the scheme requires that the application include "details of the location of the proposed use or development". Provided that the application provides sufficient information to identify the locations, I do not see why they must be stated in the application form itself.
5. Third, as I have already noted, s 54 allows a planning authority to request further information if reasonably required to properly assess the application. The Act therefore contemplates a permit being valid even if it does not contain all the information that a planning authority reasonably requires to assess it. This is a particularly significant factor weighing heavily in favour of the school.
6. Fourth, the school relies on Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364, which considered the requirements of a valid development application under the Environmental Planning and Assessment Act 1979 (NSW), s 77. Although not identical, that provision is similar to s 51 of LUPAA. At [47], Fitzgerald JA (with whom Stein and Handley JJA agreed) appeared to accept that substantial compliance is sufficient for a development application to be valid.
7. Fifth, the council has not provided any evidence that the form was approved by the Tasmanian Planning Commission as required by s 51(1AA). I therefore doubt that the council may complain that the application was invalid for the reason that the form has not been properly completed. In any event, the Acts Interpretation Act 1931, s 10A(1)(b) applies, s 51(1AA) having been inserted into LUPAA in 2015. The requirement to use the form is therefore 'directory' rather than 'mandatory'. See generally, Attorney-General (Tas) v Casimaty [2024] HCA 31; (2024) 261 LGERA 177 at [34]. It is therefore unlikely that failure to use the form, even if approved, would result in invalidity.
8. However, it is unnecessary to decide that point. The test for validity is focused on s 51(1AC), which calls up cl 8.1.2. I am satisfied that the development application included "details of the location of the proposed use or development", thereby satisfying par (c). It is true that those details were not included in the form's 'Subject Site' section. However, that is not what cl 8.1.2 requires. It is apparent from the council's subsequent correspondence that it was able to identify that development was proposed for the untitled land.

1. I reject the council's contention that the development application is invalid. It follows that the council's requests for information must be treated as requests made under s 54, and that the appeal is competent under s 61(3).
2. This disposes of the preliminary issue but not the appeal itself. I direct that the appeal be listed for directions on a date to be fixed.