Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Other matters - Interpretation of scheme standard assessed against performance criteria - Calculation of density in respect of multiple dwellings - Appeal upheld.

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), s 80.

Resource Management and Planning Appeal Tribunal Act 1993, (Tas), s 25.

Strata Titles Act 1998 (Tas), s 31A.

Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60; M Drury v Clarence City Council [2020] TASRMPAT 26; M Flood v George Town Council [2016] TASRMPAT 34, referred to.

Judgment Number: [2021] TASSC 5

1. The respondent wishes to develop a block of land situate at 12 Park Street, Bellerive, by removing existing buildings on the block and constructing three residential dwellings. The appellant (the Clarence City Council) is the relevant planning authority. It refused planning approval because it concluded that the proposed development was unable to satisfy a development standard which is concerned with residential density for multiple dwellings. The appellant accepted, and it is common ground in the appeal before me, that the proposal complies with all other applicable scheme standards.
2. The respondent appealed from the Council's refusal to the Resource Management and Planning Appeal Tribunal (the Tribunal). After a contested hearing, the Tribunal allowed the appeal, set aside the refusal, and directed the issue of a planning permit for the development: M Drury v Clarence City Council [2020] TASRMPAT 26. The appellant has now appealed to this Court from that decision. The appeal raises two questions concerning the meaning of the relevant planning scheme. It is accepted by both parties that these are questions of law within the meaning of s 25 of the Resource Management and Planning Appeal Tribunal Act 1993.
3. The proposed dwellings are individual, two bedroom single storey units. Each stands alone and is surrounded by driveways, adjacent car parking spaces and open space. They are setback from boundaries in accordance with relevant scheme standards.
4. The scheme standard in question in this appeal is as follows:

"10.4.1 Residential density for multiple dwellings

To provide for suburban densities for multiple dwellings that:

(a) make efficient use of suburban land for housing; and

(b) optimise the use of infrastructure and community services.

Multiple dwellings must have a site area per dwelling of not less than:

(b) if within a density area specified in Table 10.4.1 below and shown on the planning scheme maps, that specified for the density area.

Multiple dwellings must only have a site area per dwelling that is less than 325 m2, or that specified for the applicable density area in Table 10.4.1, if the development will not exceed the capacity of infrastructure services and:

(a) is compatible with the density of the surrounding area; or

(b) provides for a significant social or community housing benefit and is in accordance with at least one of the following:

(i) the site is wholly or partially within 400 m walking distance of a public transport stop;

(ii) the site is wholly or partially within 400 m walking distance of a business, commercial, urban mixed use, village or inner residential zone."

1. The terms "density" and "residential density" are not defined in the scheme. However, a number of terms utilised in the scheme standard are defined. I set out those definitions as follows:

"multiple dwellings means 2 or more dwellings on a site.

site area per dwelling means the area of the site (excluding any access strip) divided by the number of dwellings.

site means the lot or lots on which a use or development is located or proposed to be located.

lot means a piece or parcel of land in respect of which there is only one title other than a lot within the meaning of the Strata Titles Act 1998."

1. Each party called a planning consultant to provide evidence at the Tribunal hearing. It was common ground between the planning experts and between the parties that the site area per dwelling applicable to this development is 271.3m2. Both experts made this calculation by dividing the area of the whole block of land which is the subject of the development application by the number of proposed dwellings: 814 m2/3 = 271.3m2. This is in accordance with the definition of the term "site area per dwelling". Both parties accept that, as a consequence of this calculation, the proposal cannot meet the acceptable solution prescribed in cl 10.4.1(a)(i). Accordingly, in order to meet the scheme standard, the proposal must be assessed against the performance criteria at P1. It is accepted that the development will not exceed the capacity of infrastructure services, and further that it does not meet the criterion prescribed by par (b). Accordingly, the issue is whether the development meets the requirement prescribed at par (a), that is, whether it is compatible with the density of the surrounding area. It is this issue which was determinative before the planning authority and the Tribunal.
2. Although the term "surrounding area" is not defined in the scheme, this also was the subject of agreement between the experts at the Tribunal hearing. The surrounding area so agreed is constituted by a defined area containing residential allotments, which surrounds the subject site. Where the experts differed was in their evaluative assessment as to whether the proposed development is compatible with the density of this area. Each made a quantitative assessment of the site area per dwelling applicable to lots in the defined area, and incorporated this into an assessment of compatibility with the subject site The respondent's planner, Ms Riley, concluded that the development is compatible, whereas the appellant's planner, Mr Boardman, reached the opposite conclusion. The Tribunal preferred Ms Riley's evidence, and agreed with her that the development is compatible with the density of the surrounding area.
3. The grounds of appeal are concerned with two elements of the criterion in par (a). The first relates to the Tribunal's approach to the assessment of the density of the surrounding area, and the second with the proper meaning and application of the requirement of compatibility.

1. It is common ground that the surrounding area is comprised of 36 lots, each of which contains a single dwelling, and a further 8 lots which contain strata or multiple dwelling developments. There is no controversy about the calculation of density in respect of the single dwelling lots, but an issue arises as to the proper treatment of the multiple dwellings, where those dwellings are contained within a strata scheme. It is not absolutely clear from the evidence but it would seem that most, if not all, of the sites which contain multiple dwellings are strata titled. The issue is whether when calculating the density of such developments in the surrounding area by reference to site area per dwelling, the site is the total area of the scheme, including the common property, which would equate to the area of the parent lot upon which the scheme was developed, or alternatively, whether each individual strata lot should be regarded as a separate site for the purpose of the calculation. The difference arises because of the exception in the definition of "lot", expressed in the words "other than a lot within the meaning of the Strata Titles Act 1998". If these words are strictly applied, the individual strata lots will be ignored and the calculation will revert to the original parent title of the strata scheme, which includes all common property. If those words are disregarded for the purpose of the calculation, a strict interpretation of the balance of the definition will mean that each individual strata lot constitutes a "site" for such purpose.
2. The issue manifested in the differential approach adopted by the experts. Mr Boardman adopted the former and Ms Riley the latter. The practical effect of the distinction is that on Ms Riley's calculation of density in the surrounding area, the number of individual sites increases commensurate with the number of individual strata units, and each of them has a higher density because of the small amount of land upon which each unit is located. On Mr Boardman's approach, each strata development has a lower density. On Ms Riley's calculation, there are some 70 site areas, 26 of which are individual dwellings within strata schemes. Their higher density enabled Ms Riley to conclude that the proposed development sits comfortably within the range of density in the surrounding area. On Mr Boardman's calculation, the number of individual sites is reduced to 44, 8 of which contain multiple dwellings. The majority of these are of lower density than the subject site and hence, he was able to express the opinion that, on a statistical basis, the proposal is "significantly denser than that of the surrounding area".
3. In concurring with Ms Riley's methodology, the Tribunal reasoned as follows:

"[19] The meaning of 'site' in the Strata Titles Act 1998 (the Strata Titles Act) has a different meaning to the Scheme definition and is not relevant to the interpretation of P1. The Strata Titles Act definition of 'lot' is that it is part of the Strata Plan (which includes lots and common property) allocated for separate occupation by the owner of a lot. The site area therefore, for the purposes of consideration of strata unit development in the surrounding area is, in the Tribunal's view limited to the area of each lot as defined by the Strata Titles Act thereby excluding common property. The Tribunal adopts the analysis set out in M Flood v George Town Council (Flood)." [Footnotes omitted.]

1. The Tribunal's reference to the analysis in the Tribunal decision of Flood (M Flood v George Town Council [2016] TASRMPAT 34) is set out in the following passages from that case:

"[21] A lot is identified for the purposes of understanding the provisions of the Scheme as a piece or parcel of land in respect of which there is only one title. The Council submits that there are two ways of reading the definition. The first is to say that a lot within the meaning of the Strata Titles Act 1998 is not considered to be a lot for the purposes of the Scheme and determination of what constitutes the size for an application is to be determined by the common law test. Alternatively, it submits that where use and development is proposed to be located on a lot within in the meaning of the Strata Titles Act 1998, the relevant strata lot or lots must be identified by using the definition of lot in Section 3 of the Strata Title Act. 'Lot' in respect of a site under that Act means a part of the site -

(a) allocated for separate occupation by the owner of the lot or a person deriving rights of occupation from the owner

[22] The Tribunal holds that the definition of lot contained in the Scheme is intended to be of general application, save in respect of a lot created under the Strata Titles Act 1998 - in which case the meaning attributed to lot under that Act is applicable. The intention of the drafter of the Scheme was to ensure that there was a consistency of definition of 'lot' when dealing with Strata titles, and used words which placed the definition of lot in that situation, outside of the definition in the Scheme. ...".

1. It should be observed that the Tribunal in this case was considering the definition in terms of its application to the proposal, in circumstances where it was intended to further develop an individual lot within an existing strata scheme. The effect of the Tribunal's conclusion was that the density was to be calculated by dividing the area of the individual strata lot by the number of multiple dwellings proposed to be developed on it. In doing so, it rejected as unrealistic the alternative argument that the whole of the strata plan should be taken into account for the purposes of the calculation.
2. In this case, Mr Morris, who appears for the appellant, argues that the methodology adopted by the Tribunal is incorrect. He submits that effect must be given to the exception contained in the definition of lot, which expressly excludes consideration of a strata lot. The purpose of the exception is to assess density of multiple dwellings without reference to the existence of strata development and legislation associated with it. Unless this is done, then the result will be a differential and conflicting approach to the calculation of site density for multiple dwelling developments, depending upon whether or not they are contained in a strata scheme. An example of this inconsistency is that the density of the subject site, which is not yet under a strata scheme, is calculated by reference to the overall area of the development lot, whereas the density of the comparators in the surrounding area are calculated on a different basis. Counsel argues that the clear intention of the criterion, with its focus on compatibility, is to compare "apples with apples".
3. Mr McElwaine SC, who appears as counsel for the respondent, concedes that the reasoning of the Tribunal in this case and in Flood is "poorly worded", but submits that the Tribunal reached the correct conclusion as to the meaning and effect of the relevant criterion. He argues that the exception in the definition of lot should be ignored for the purpose of calculation of the density of strata schemes. He points out that the definitions under the scheme apply "unless the contrary intention appears": see cl 4.1.3. It is submitted that the intention of the scheme is to assess density in the sense of its dictionary definition "the degree of compactness of the substance". This is achieved by making a calculation of the density of each strata lot by reference to its individual size, and ignoring the common property. He points to the first part of the definition of lot, which contains reference to a parcel of land defined by a separate title. Because this is the reality of strata developments which are already in existence, it provides the proper and intended method of assessment of the "density of the surrounding area".
4. Mr McElwaine submits that the purpose of the exclusion of strata title lots from the definition of "lot" is to exclude strata schemes from the development controls that apply to the subdivision of land, consistent with provisions in the scheme and relevant legislation: see the Local Government (Building and Miscellaneous Provisions) Act 1993, s 80; Strata Titles Act 1998, s 31A. However, it seems to me that that result is already achieved by these provisions. Mr McElwaine's example of scheme standards applicable to subdivision is misplaced because those provisions will not apply to a strata lot in any event, because the creation of a lot on a strata scheme is not considered to be subdivision, having regard to the definition of that term in the scheme and the said legislation. On the contrary, I accept the submissions of Mr Morris that the intention of the definition of "lot" in the scheme is to build on the exclusion of strata development from the planning system generally, by ensuring that any scheme provisions which take into account or rely upon the existence or proposed creation of a lot, ignore the existence of a strata scheme. This will include with respect to a calculation of residential density. The result is to achieve a consistent basis for the calculation of density. There is, of course, no requirement to bring a multiple dwelling development under the Strata Titles Act. It is extremely unlikely that the planning scheme intends differential treatment as between multiple dwelling developments, dependent on whether they have been brought into a strata scheme. It is far more likely that the intention of the planning scheme is to treat all multiple dwelling developments in a similar way, including for the purposes of the application of a scheme standard dealing with density.
5. Unless interpreted in this way, the effect of the density calculation, based on the term "site area per dwelling" would be rendered ineffective. If each strata title lot was counted as an individual lot, then there would be few, if any, cases where the calculation would have any real, practical meaning because each lot would invariably only contain one dwelling. Further, in the case of strata developments, the calculation will exclude common property. It is apparent that the resultant calculation will not provide an accurate reflection of the true density of the development. By calculating site area per dwelling in respect of a strata title development by dividing the whole parcel of land by the number of dwellings, the density calculation will include common property. It seems to me that this obviously gives a more accurate result and is consistent with the purpose of the exception contained within the definition of "lot".
6. It can be argued that on a strict interpretation of the relevant definitions, when applied to already developed strata sites in the surrounding area, that the overall parcel of land upon which the strata development is located would not have a separate title and, therefore, it would not fall within the definition of "lot" and be incorporated into the definition of "site". However, it must be remembered that the purpose of assessing the density of other sites is only part of conducting an evaluative assessment against the relevant performance criterion. That criterion requires consideration of compatibility "with the density of the surrounding area". As already noted "density" is not defined. Both counsel agreed that "density" in the performance criterion should be taken as a reference to "site area per dwelling". This might be so, but it must be recalled that the scheme standard deals only with the density of multiple dwellings. The use of that term does not seem to be relevant to any other form of development under the scheme. The residential density of individual dwellings is dealt with in other parts of the scheme in other ways, including by reference to lot size and other parameters of subdivision and setbacks in respect of single buildings on a lot. A calculation, therefore, that assesses density of the surrounding area by reference to the calculation of site area per dwelling in respect of all forms of development including single dwellings, might be a useful component of the evaluation required by the performance criterion, but is not itself sufficient to achieve the required comparison. It is certainly particularly relevant in respect of other multiple dwelling developments in the surrounding area, but this reinforces the need for the method of calculation to be consistent in respect of such developments, and this again supports the exclusion of strata title lots for the purpose of the density calculation. This consideration also takes into account the nature of the compatibility assessment required by the performance criteria, which is the issue raised by ground 2.
7. It follows that I am satisfied that the Tribunal erred in its approach to the assessment of the density of multiple dwellings for the purpose of the application of the performance criterion. However, before considering the consequence of this error and the outcome of the appeal, it is necessary to determine ground 2.

1. The issue raised by this ground is the meaning of "compatibility" in the performance criterion at cl 10.4.1 P1(a). The Tribunal followed earlier tribunal decisions which had held that compatibility required a general consideration as to whether the proposal "is in harmony or broad correspondence with the surrounding area". It considered that a mere statistical comparison with the density of the surrounding area was relevant to informing the consistency of the proposal with the surrounding area and, further, that a demonstration of statistical consistency would establish compatibility, but was not an essential precondition of compatibility. The compatibility required was a broader and more general concept than mere statistical consistency. On that basis, the Tribunal preferred the expert evidence of Ms Riley over that of Mr Boardman. Ms Riley had made the assessment upon which her opinion was expressed on the basis of harmony or broad correspondence, whereas Mr Boardman had relied heavily upon a statistical comparison.
2. Ground 2 asserts that the Tribunal erred in its construction of the performance criterion and, in particular, the word "compatibility". The ground is expressed as follows:

"2.2 The Tribunal erred in law by misconstruing the Scheme in determining at [32], [53] and [54] that the consideration of 'compatibility' in clause 10.4.1. P1 of the Scheme required more than statistical considerations (such as mean, median and standard deviation) and impermissibly permitted a consideration of whether density of the proposal is 'in broad correspondence' and capable of existing in harmony with the density in the surrounding area."

1. Mr Morris, who appeared for the appellant, argued that numerical or statistical consistency is the only acceptable measure of compatibility. I reject this submission. The Tribunal was clearly correct in its approach to the performance criterion and the interpretation of the requirement of compatibility. There are three matters that support this conclusion. Firstly, the plain meaning of "compatibility" is consistent with it being aspirational and conceptual. The determination of compatibility requires an overall assessment of how two things relate to each other, and is concerned with the ultimate result. It suggests the need for a qualitative comparison and assessment. The statistical comparison relied upon by Mr Boardman, and asserted as applicable by the appellant constituted a quantitative analysis, with the result capable of exact measurement. If this was what was required, then a word other than "compatibility" would have been used by the drafter of the scheme.
2. Further, the adoption of a qualitative assessment is consistent with the nature of a performance criterion. I made this point 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. Finally, I think it is important that the criterion requires compatibility "with the density of the surrounding area". As I have already observed, density is not defined and the use of that word points to the need for a broad evaluative assessment. If what was required by the performance criterion was a quantitative comparison, it would have been more appropriate to simply state that and require a comparison with the prevailing "site area per dwelling" in the surrounding area. This is the approach taken by the acceptable solution, which can be contrasted with the intended operation of performance criteria.
2. Ground 2 is rejected. The Tribunal correctly interpreted and applied the performance criterion.

1. Of course, the conclusion reached in respect of ground 2 does not mean that a statistical assessment of the density prevailing in the surrounding area is irrelevant. It is clear that the Tribunal incorporated a statistical comparison into its broader assessment of compatibility. It relied to some extent on Ms Riley's statistical analysis, which of course was erroneous in its assessment of density applicable to multiple dwelling developments in the surrounding area. Ultimately, the Tribunal concluded that it was not possible to identify a prevailing density in the surrounding area. At [54] the Tribunal said:

"[54] While consideration of compatibility will vary depending on the facts of each case, in this case as no prevailing density can be identified, a more detailed consideration of the range of density in the surrounding area is required. The density of the surrounding areas is characterised by a small number of high density multiple dwelling developments, a small number of low level density developments comprising large parcels of land with only a single dwelling and variable dwelling densities in between. In the Tribunal's view, a proper analysis of the range of those densities illustrates that there is no prevailing density in the surrounding area. [Footnote omitted.]"

[55] The surrounding area comprises eight Strata/multiple dwellings developments which comprise 26 of the 70 site areas identified in the dataset within the surrounding area. The Strata properties clearly have a higher, and in some cases, considerably higher, density than that located elsewhere within the surrounding area. The Tribunal prefers the manner of assessment of Ms Riley in that the test of compatibility relies on something more than an analysis of the mean, median or standard deviation measures. It requires an assessment of whether the density is in broad correspondence, and capable of existing in harmony, with those in the surrounding area. In the Tribunal's view, the density of the Proposal is so capable. The density of the Proposal is well within those densities identified in the dataset and is capable of existing in harmony with the density of the surrounding area. The density of the Proposal could not be characterised as significantly divergent from the density of the surrounding area."

1. When regard is had to these and other passages in the Tribunal's decision, it is clear that, although the Tribunal did not regard statistical analysis as determinative, it did play a role in its overall assessment of compatibility. In particular, a factor in the Tribunal's reasoning was its observation that "the strata properties clearly have a higher, and in some cases, considerably higher density than that located elsewhere within the surrounding area". It is unclear whether in making this observation the Tribunal has proceeded on the basis of a density calculated in accordance with the site area per dwelling as defined by the scheme, or is referring to density as a broader concept. Accordingly, it is unclear as to the effect that the Tribunal's error in the proper calculation of site area per dwelling in respect of strata properties has on its ultimate conclusion.
2. It follows that, although I think it is possible, if not likely, that the Tribunal would have reached the same result in any event, I am unable to say with the requisite degree of satisfaction that this would be the case. Accordingly, the appeal will be upheld on the basis of the error of law identified in ground 1. Section 25(6) of the Resource Management and Planning Appeal Tribunal Act provides that this Court may make an order setting aside a decision of the Appeal Tribunal, and remitting the matter for reconsideration in accordance with any directions. This is the appropriate course to take. The Tribunal has heard the evidence and is the specialist body charged with making such assessments. Accordingly, I remit the matter to the Tribunal to reconsider its decision in accordance with law. Further, I direct that the Tribunal, in that reconsideration, have regard to the determination which I have made in this case concerning the proper method of calculation of site area per dwelling. It is not necessary for the Tribunal to conduct a full re-hearing of this case, and it will be a matter for it as to the extent to which it receives any further evidence or submissions from the parties.