1. The decision of the Launceston City Council to refuse a permit for application DA0123/2022 in respect to 108 Elphin Road, Newstead is set aside and substituted with a decision to grant a permit subject to the conditions of approval set out in annexure A to the reasons for decision in Craig Webb Pty Ltd v Launceston City Council (No 2) [2023] TASCAT 146.

2. The Launceston City Council is directed to issue a permit for application DA0123/2022 according with these orders within 14 days.

3. Any application for an order for costs in the appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.

Environment and planning - Planning appeal - Discretionary use - Proposed medical centre in general residential zone - Whether discretionary use should be refused having regard to zone purpose statements - Extent of local community - Effects on amenity - Whether the proposed use would be in harmony with the Zone Purpose Statements

Craig Webb Pty Ltd v Launceston City Council [2023] TASCAT 108;

Craig Webb Pty Ltd v Launceston City Council (No.2) [2023] TASCAT 146;

Gillard v Launceston City Council [2024] TASSC 37

R V Pty Ltd v Connector Park Pty Ltd (No.4) [2022] TASSC 66;

Hobart City Council v Rich Tapestry Pty Ltd (ACN 667 999 055) [2024] TASSC 54;

Telstra Corporation v Meander Valley Council & Ors [2019] TASRMPAT 11;

BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399;

9 Sandy Bay Road Pty Ltd v Hobart City Council and Ors [2017] TASRMPAT 19;

Project Venture Developments v Pittwater Council [2005] NSWLEC 191;

Clarence City Council v Drury [2021] TASSC 5;

1. In Craig Webb Pty Ltd v Launceston City Council [2023] TASCAT 108 the Tribunal as presently constituted made a preliminary determination that an appeal by the appellant against a decision by the Launceston City Council to refuse a planning application should be upheld. We made directions in respect to the formulation of conditions for the permit. In Craig Webb Pty Ltd v Launceston City Council (No.2) [2023] TASCAT 146 we made orders setting aside the Council's decision to refuse a permit and directing the Council to issue a permit subject to certain conditions.
2. The parties joined appealed the decision to the Supreme Court. The appeal was upheld by Blow CJ in Gillard v Launceston City Council [2024] TASSC 37. His Honour set aside the Tribunal's decision and ordered that the matter be returned to the Tribunal for reconsideration in accordance with the Court's reasons.
3. No party sought to reopen their evidence. The appellant and the parties joined were heard in respect to further submissions in the light of the Court's decision.
4. At the original hearing of the appeal before the Tribunal the Council changed its position to support the issue of a permit subject to conditions. It took a neutral position at the original hearing and did not call evidence. The Council did not seek to be heard on the hearing following the remitter. As with the initial hearing, the role of contradictor on the appeal was undertaken by the parties joined.

1. The appellant applied to the Council for a permit to use a property at 108 Elphin Road, Newstead (the site) as a medical centre.
2. The proposal falls for assessment under the Launceston Interim Planning Scheme 2015 (the Scheme) notwithstanding that it has been superseded by the Tasmanian Planning Scheme - Launceston: see [14] of Craig Webb Pty Ltd v Launceston City Council.
3. The site is located within the General Residential Zone of the Scheme. The use table in cl 10.2 provides that a medical centre is a discretionary use in the zone.
4. The medical centre will be located in an existing residential dwelling on the site, with the proposed alterations and additions to the building to facilitate the proposed use. In Craig Webb Pty Ltd v Launceston City Council we described the proposal in the following terms at [6]-[8]:
   1. The medical centre would provide consulting rooms for specialists in general plastic and reconstructive surgery. The medical centre would have three consulting rooms and a procedure room for minor surgical procedures. Only one or two doctors would consult at any time. Major procedures would be undertaken at a hospital.
   2. The medical centre would be open during the following operating hours:

1. As well as a change of use, the proposal proposes development, which includes the following:

(d) Construction of an extension to the rear of the building which will include a waiting room and reception area;

(e) Widening of a pedestrian footpath along the side of the site which adjoins the property of the parties joined, between the car park and the entry door to the extension;

(f) Construction of a seven space car park between the building and the boundary with Elphin Road, including an accessible parking space;

(g) Installation of sliding gates at each of two existing vehicle crossings to Elphin Road, with a matching frontage fence to be constructed behind the frontage hedge.

(h) Extension of the boundary fence along, the side of the site which adjoins the property of the parties joined, between the existing fence and the frontage.

1. The parties joined own the adjoining property at 108A Elphin Road. No relevant change will be made to the exterior of the side of the existing building facing that boundary, but a new footpath will be developed to an existing access on that side that will provide access to the medical centre.

1. Four grounds of refusal were considered at the original hearing. One ground was not argued and the remaining three grounds were dismissed.
2. Only one of those grounds of refusal was the subject of the appeal to the Court. That ground arose under cl 8.8.1(a) of the Scheme, and consisted of a primary position and an alternative. Although not numbered in Craig Webb Pty Ltd v Launceston City Council, for reasons explained in that decision at [10], for the purposes of these reasons we adopt the description of the primary and alternative parts of the ground as ground B and ground C, as used by the parties in their submissions.
3. The grounds both go to use. They are:

Ground B. In exercise of the discretion under cl.8.8.1(a) of the Launceston Interim Planning Scheme 2015, the proposed use of "medical centre (3 practitioners)" as a use that is designated to be discretionary under cl.10.2 should be refused having regard to the purpose of the General Residential zone as described in cl.10.1.1. > > Ground C. In the alternative the ground B, in exercise of the discretion under cl.8.8.1(a) of the Launceston Interim Planning Scheme 2015, the proposed use of "medical centre (3 practitioners)" as a use that is designated to be discretionary under cl.10.2 should be refused having regard to the pattern of use and development in the surrounding area, the nature and scale of the proposed medical centre use, and the impact of the proposed use on the privacy of the adjoining dwelling at 108A Elphin Road.

4. Subject to the interests of justice, the Tribunal is limited to the scope of what has been remitted by the court: RV Pty Ltd v Connector Park Pty Ltd (No.4) [2022] TASSC 66 at [19]- [21]. The parties approached the hearing on the basis that the issues to be determined on the remitter were grounds B and C.

1. The Tribunal dismissed grounds B and C on the basis that cl 8.8.1(a) did not establish a discretion to refuse a permit beyond the application of the relevant acceptable solutions and performance criteria in the Scheme. As the Tribunal was satisfied that the relevant standards were satisfied the appeal was upheld.
2. In Gillard v Launceston City Council Blow CJ rejected the proposition that in considering an application for a discretionary use the only relevant matters are the standards set out in acceptable solutions and performance criteria. He determined that in respect to a discretionary use there exists a discretion to permit or refuse to permit the proposed use on the basis of any relevant consideration. His Honour expressly identified as a potentially relevant consideration a matter arising from the Zone Purpose Statements in cl 10.1.1 of the Scheme that is not the subject of a standard.
3. At [26] his Honour observed that:

26. In this case, the planning scheme prescribed performance criteria and acceptable solutions in relation to five relevant considerations. It thus provided a reasonable level of predictability in relation to those five relevant considerations. But it also made it clear that the use of land in the General Residential Zone for a medical centre was discretionary. In my view the effect of the provisions as to the Use Standards in relation to the five relevant considerations was only to circumscribe the exercise of the discretion. If there were any other relevant considerations that were not the subject of Use Standards, then there remained a discretion.

30. However there is nothing unfair, disorderly or unsustainable involved in a planning authority or a tribunal, given a discretion to permit a particular use, being entitled to take into account relevant considerations that are not the subject of prescribed acceptable solutions or performance criteria. The existence of a limited and circumscribed discretion is in no way inconsistent with any of the statutory objectives that counsel sought to rely upon. > > 31. In my view it is quite clear that it was the duty of the tribunal to take into account any relevant considerations relied upon by either party that were not the subject of the Use Standards prescribed by cl 10.3 and, for that purpose, to have regard to the Zone Purpose Statements in cl 10.1.1 of the planning scheme as required by cl 8.10.2(a) thereof. > > 32. The parties presented the tribunal with conflicting evidence from two expert witnesses as to whether the proposed use was in harmony with the Zone Purpose Statements. The tribunal concluded, at [57], that it was unnecessary to determine whether the evidence of one expert or the other was to be preferred because that evidence was irrelevant. For the reasons I have stated, it erred in law by treating that evidence as irrelevant.

5. His Honour found that the requirement to have regard to the Zone Purpose Statements in cl 10.1.1 in exercise of the discretion arises from cl 8.10.2(a). Clause 8.10.2(a) provides:

In determining an application for a permit for a discretionary use the planning authority must, in addition to the matters referred to in subclause 8.10.1, have regard to: > > (a) the purpose of the applicable zone;

6. Therefore, where a matter in the Zone Purpose Statements is addressed by use or development standards, the discretion to grant or refuse a permit for the proposal is circumscribed by those standards. Where a relevant consideration is raised in respect to a matter in the Zone Purpose Statements that is not addressed by a relevant standards, then we are required to have regard to that consideration in exercising the discretion to grant or refuse a permit for the proposal.
7. The requirement in cl 10.1.1(a) is to "have regard to" the purpose of the applicable zone. The requirement to have regard to the Zone Purpose Statements does not raise them to the level of a standard that must be met, but requires that where raised we take them into account as a fundamental element of our decision making: Hobart City Council v Rich Tapestry Pty Ltd (ACN 667 999 055) [2024] TASSC 54 at [36].
8. In Gillard v Launceston City Council At [20] Blow CJ summarised the contentions of the parties joined in the following terms:

20. Before the tribunal, the appellants contended that if all applicable Use Standards were satisfied, the council retained a discretion to refuse or permit the proposed use by virtue of cl 8.8.1(a) and the provision as to a medical centre in the Use Table in cl 10.2. They argued that the tribunal was required to have regard to the Zone Purpose Statements in cl 10.1.1, and that the application should be refused on the basis that it was not in harmony with those Zone Purpose Statements.

The Zone Purpose Statements and the parties' contentions

10.1.1 Zone Purpose Statements > > 10.1.1.1 To provide for residential use or development that accommodates a range of dwelling types at suburban densities, where full time infrastructure services are available or can be provided. > > 10.1.1.2 To provide for compatible non-residential uses that primarily serve the local community. > > 10.1.1.3 Non-residential uses are not to adversely affect residential amenity, through noise, activity outside of business hours, traffic generation and movement, or other offsite impacts. > > 10.1.1.4 To encourage residential development that respects the existing and desired neighbourhood character. > > 10.1.1.5 To encourage residential use and development that facilitates solar access, integrated urban landscapes, and utilisation of public transport, walking and cycling networks.

2. The parties joined contend that cl 10.1.1.2 and cl 10.1.1.3 arise directly in respect to the proposal.
3. In considering cl 10.1.1.2, whether the proposed use primarily serves the local community, the parties joined say that the local community is something smaller and distinct from the region, sub-region, town or group of suburbs. They say that the local community is properly to be understood as the area surrounding the site, and more particularly those people that reside within that area.
4. In respect to cl 10.1.1.3, effect on residential amenity through noise, activity outside of business hours, traffic generation and movement, or other off-site impacts, the parties joined say that standards in the Scheme deal with commercial vehicle movements during the relevant hours of operation, noise from mechanical plant and equipment, light spill, external storage and external parking. The parties joined say that elements which may adversely affect residential amenity which are not dealt with by standards are noise other than from mechanical plant, loss of privacy, and traffic generation and movement at the site.
5. The parties joined say that although cl 10.1.1.1, cl 10.1.1.4 and cl 10.1.1.5 are not directly applicable to the medical centre use, they evidence an intention that the primary purpose of the general residential zone is to accommodate residential use and development. The conversion of the existing dwelling on the site to a business and professional services use would therefore remove the site from residential use and increase non-residential activity in the area.
6. In summary, the parties joined contend that the proposed medical centre is not compatible with, or in harmony with, the purpose of providing for uses that primarily serve the local community. They contend that the non-residential use must not adversely affect residential amenity through noise, activity outside of business hours, traffic generation movement or other off-site impacts.
7. The parties were generally in agreement as to the approach to be taken. The appellant contends that the scope of what Blow CJ referred to as the "limited and circumscribed discretion" is determined by reference to what is not covered by standards. In this respect the approach of the appellant is essentially the same as by the parties joined. Also consistent with the approach of the parties joined, the appellant contended that the requirement to have regard to the residual elements of the Zone Purpose Statements does not raise them to mandatory requirements or standards that must be satisfied, but matters to which appropriate weight ought to be given in an assessment under the discretion. The appellant also approached the issue of compatibility as requiring assessment of whether the proposal would be in harmony or broad correspondence with the local community.
8. The appellant disagreed with the parties joined as to the area that constituted the local community, which the appellant contends is the area of Launceston. The other major area of disagreement in approach between the appellant and the parties joined is in respect to the residual matters in the Zone Purpose Statements left unaddressed by the standards. The appellant contends that the only relevant matter raised by the parties joined not captured by a specific standard is the noise impacts on amenity caused by foot traffic along the proposed entry path on the site.

1. Each party relied on evidence by planning experts, as given at the initial hearing. Mr George Walker gave evidence for the appellant and Ms Heidi Goess for the parties joined. No expert evidence was led by the Council.
2. Ms Goess proceeded on the basis that the term 'local community' implies a group of people living in a defined geographical area. She considered that the spatial extent of the local community should not be modelled on demographics or cultural composition, as the term community infers all persons irrespective of their cultural background. She also considered that the spatial extent should not be derived from or defined by services that may be accessed outside of the local community.
3. Ms Goess considered that the willingness of a person to travel to access a health service does not imply that the service is located within the spatial extent of that person's local community. She considered that the spatial extent of the local community referred to in cl 10.1.1.2 "is mutually exclusive to the willingness and ability of a person to access services outside their immediate area". She considered that the proposed medical centre would be likely to provide specialised healthcare for persons across a large geographic area that would extend beyond the municipality of Launceston. She considered that an area of that extent would dilute the meaning of local community for the purposes of assessment of a proposal.
4. Although Ms Goess said that the locality could be the spatial area of the suburb of Newstead, she proceeded on the basis that a one kilometre radius from the site was reasonable for defining the spatial extent of the local community. Her assessment identified an area bordered by High Street, David Street and the North Esk River, beyond which she considered that other service centres, such as the central business district, would provide focus for the residents or other users within that land area.
5. Ms Goess concluded that the proposal would be of a magnitude and size inconsistent with the purpose of the general residential zone as described in cl 10.1.1.2 and cl 10.1.1.3. She considered that the proposed medical centre would not primarily service the local community. She considered that the intensity and scale of the use would adversely affect the residential amenity of the neighbouring sensitive use at 108A Elphin Road by reason of noise, loss of privacy and traffic generation and movement. She considered that the extent of that effect would result in an unreasonable loss of amenity to the occupants of the dwelling at 108A Elphin Road.
6. Ms Goess noted that the information provided with the development application indicated that the Tasmanian Department of Health may commission the proposed medical centre to address the public waiting list and support services at the Launceston General Hospital. Appointments at the medical centre will be by referrals rather than walk in custom. She did not dispute that the proposed medical centre would provide a health service to residents within the surrounding area, but considered that the proposal would largely attract patients from outside the spatial area of the local community as defined by her. She considered that the proposal would therefore not primarily serve the local community.
7. Ms Goess considered the existing amenity of 108A Elphin Road. She noted that the property contains a two-storey dwelling with direct line of sight to the site from windows of habitable rooms facing the site. She said that living spaces and habitable room windows on the northern side of the dwelling would be within 4.5m of the entry path to the proposal. She considered that the occupants of the dwelling experienced a high level of amenity, including the enjoyment of a quiet home, free from the interference of external noise sources generated from the site other than might reasonably be expected of a residential use.
8. Ms Goess observed that the function and use of the frontage area of the site would be altered by its conversion to a parking area, which would experience intensification of activity including vehicle generation. She estimated that the proposal could generate up to 96 vehicle movements per day compared to an estimated number of 9 vehicle movements per day for a single residential use. She observed that noise associated with vehicle generation would include vehicles entering and existing the site, opening and closing of car doors and incidental noises from patients or visitors walking along the entry path between the building on the site and the residence at 108A Elphin Road. The frequent foot traffic along the entry path would also result in the loss of privacy to the occupiers of 108A Elphin Road.
9. Mr Walker also undertook an assessment of the proposal against the Zone Purpose Statements. He considered that a medical centre is a use that is compatible with residential use, as reflected in that use being a discretionary use in the General Residential Zone. He noted that all other sub-uses of the business and professional use class are prohibited in the zone.
10. Mr Walker noted that there are 22 non-residential uses in the northern two thirds of Elphin Road that have direct frontage to the road and which are interspersed with residential uses. Of the 22 non-residential uses, 17 are for medical centres. Of the 17 medical centres, 16 operate from converted dwellings which are located within either the General Residential Zone or the Inner Residential Zone.
11. Mr Walker considered that a medical centre on the site would be in harmony and broad correspondence with the established non-residential uses on Elphin Road, which coexist with residential uses.
12. Mr Walker also considered the extent of the local community. He drew a distinction with the terms 'locality', 'vicinity' and 'surrounding area', which are often used in planning schemes. He informed his assessment by having regard to definitions of 'local' and 'community' in the Macquarie Dictionary. He considered that a local community should be contiguous and connected by a similar urban and suburban zone pattern, and that it should include distinctive, identifiable and similar characteristics and qualities which contribute to a logical catchment area. He considered that a fluid approach without rigid boundaries should be taken to determination of the local community, and that what constitutes a local community will vary according to the circumstances of a particular matter. In this case, his opinion was that the nature of the use, the location of the proposed medical centre within the context of the urban area, and the size, type and distribution of the population that will or may use the medical centre inherently increases the size of the local community beyond a rigid and defined geographic area
13. On this basis Mr Walker formed the view that the local community is the town in which the use is proposed and the people that reside, recreate and work within the town. He had regard to the Northern Tasmania Regional Land Use Strategy which identifies the City of Launceston as part of the greater Launceston area. He considered that the greater Launceston area included several settlements which have separate and individually identifiable land use patterns and so concluded that the greater Launceston area would not constitute a local community. The land use strategy identifies Launceston as a regional city forming the core of the greater Launceston urban area. That area covers a contiguous settlement area that comprises several interrelated suburbs including the urban and suburban areas surrounding the major activity centres. He considered that the area had its own distinctive and identifiable characteristics that created a logical and recognisable catchment area. He concluded that the greater Launceston urban area, representing a group of contiguous and interrelated suburbs, is the relevant local community.
14. Mr Walker noted that the medical practice to be undertaken on the site currently operates at other premises within Launceston. He noted that the practice has an agreement with the Launceston General Hospital to assist public patients on the plastic surgery waiting list. The hospital is located in an adjoining suburb well within a two kilometre radius from the site.
15. Mr Walker analysed 880 client referrals to the medical practice over a seven-month period shortly prior to the first hearing. He calculated that 83% of referrals originated in the northern region of Tasmania, with 15% from the north-western region and 2% from the southern region. Within the northern region he calculated that 83% of referrals were from medical practices within the local community as identified by him. All of those referrals were from 34 practices within a 7km radius of the site. Of those 34 practices, 76% were within a 2km radius of the site. Six of the practices are located on Elphin Road.
16. Mr Walker concluded that the proposal would primarily serve the local community he identified because it would be the only practice of its type in Launceston that offers the full spectrum of plastic and reconstructive surgical procedures and which is able to treat all age cohorts within the local community, and it will support the Launceston General Hospital.
17. In terms of potential impacts on amenity, Mr Walker had regard to the standards in cl 10.3 of the Scheme and did not identify any effect on amenity arising from the proposal that would not be covered by those standards.

1. Clause 10.1.1.2 refers to 'the local community'. The Scheme provides no clear guidance as to what that phrase means.
2. The clause does not expressly limit the community to the zone. It may relate to a locality greater or lesser than the geographic area of the zone.
3. The clause also does not expressly limit community to residents. A community might include people with roots in the community who are not residents, such as the students in a school in the locality, those with workplaces in the locality or who own property or businesses in the locality. In considering whether a proposal would provide 'significant community benefit' in Telstra Corporation v Meander Valley Council & Ors [2019] TASRMPAT 11 at [71] the Resource Management and Planning Appeal Tribunal (RMPAT) expressed the view that a community is a group of people living in one place, but that what constitutes a community should not be interpreted narrowly. In the context of cl 10.1.1, which is focussed on residential purpose, community will mean those who live in the locality.
4. That approach reflects that the no permit required and permitted uses in the zone are narrow and largely related to residential use. No permit required uses are educational and occasional care use if for home based child care, residential use if for a single dwelling, natural and cultural values management use, and passive recreation use. Permitted uses are residential use if for multiple dwellings, and utilities use if for minor utilities. That narrow range emphasises the requirement for regard to be had to the zone purpose, as observed by McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117] (emphasis added):

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

1. Mr Walker's analysis and his construct of the local community is more detailed than that articulated by Ms Goess. Her one kilometre radius is arbitrary, even in the context of her view that beyond that area other service centres such as the CBD would provide focus for the residents or other users within the area identified by her. Mr Walker's broader approach, proposing that what constitutes the local community may vary with the circumstances, is persuasive. A medical centre is the only business and professional use that may be granted a permit in the General Residential Zone. What constitutes the local community for a medical centre may well be different to what constitutes the local community for the other discretionary uses described in the zone use table in cl 10.2. This can be demonstrated by examining those discretionary uses:
   1. 'Community meeting and entertainment' is defined in table 8.2 of the Scheme as use of land for social, religious and cultural activities, entertainment and meetings. Examples in the definition include an art and craft centre, church, cinema, civic centre, function centre, library, museum, public art gallery, public hall and theatre. The use table in cl 10.2 includes the qualification "if not for a cinema or function centre".
   2. 'Educational & occasional care' is defined as use of land for educational or short­term care purposes. Examples given are a childcare centre, day respite facility, employment training centre, kindergarten, primary school, secondary school and tertiary institution.
   3. 'Food services', which is defined as use of land for preparing or selling food or drink for consumption on or off the premises, includes the qualification "if for a café or take-away food premises".
   4. 'General retail and hire' is qualified with "if for a local shop", which is defined in cl 4.1.3 as "the sale of grocery or convenience items where the gross floor area does not exceed 200 m².
   5. 'Residential' if not listed as no permit required or permitted, and except for a particular area of assisted housing.
   6. 'Utilities', the definition of which includes use of land for utilities and infrastructure including telecommunications, electricity generation transmitting or distributing gas oil or power, transport networks, collecting treating transmitting storing or distributing water and collecting treating or disposing of storm or floodwater sewage or sullage. Examples include an electrical sub­station or powerline, gas, water or sewerage main, optic fibre main or distribution hub, pumping station, railway line, retarding basin, road, sewage treatment plant, storm or flood water drain, water storage dam and weir.
   7. 'visitor accommodation' which is defined as "use of land for providing short or medium term accommodation for persons away from their normal place of residence, with examples including a backpackers hostel, bed and breakfast establishment, camping and caravan park, holiday cabin, holiday unit, motel, overnight camping area, residential hotel and serviced apartment".
2. Ms Goess' narrow approach might be appropriate for a use such as a local shop, but plainly the discretionary uses contemplated in the zone include uses that would serve broad and varied communities, such that the relevant local community for the purposes of any particular use may depend on that particular use. Adopting Ms Goess' focus on service centres as a metric for identifying a local community, the service centre for the purposes of a use such as a medical centre is not necessarily the same as that for other discretionary uses. The local community for a local shop will be different in scale to that for a civic centre, a secondary school or a tertiary institution. That does not, however, mean that the relevant local community will be defined by the users of a particular proposal. For example, a tertiary institution as a use may contemplate a broad local community, for example the northern region of Tasmania, but if the proposed students are to be predominantly sourced from the south of the state, interstate or overseas it will not serve that local community.
3. Even if we are wrong that what constitutes the local community might vary with the particular use or category of use, and the clause contemplates a single local community for all categories, the range of use classes and the range of the scale of uses contemplated in the zone by the use table establishes that the relevant local community would be much broader than that identified by Ms Goess, and in the order of the local community identified by Mr Walker.
4. A significant aspect of Mr Walker's evidence is that 76% of the referring practices within the area identified by him as the local community are within a 2 km radius from the site. It does not necessarily follow that all the patients who were referred lived within that radius, or even within the area identified by Mr Walker. However, it is the best evidence we have of the customers of the proposed use. It may be inferred from common experience that patients and practitioners will generally be part of the local community in which the referring practices are located and will likely form part of the local community posited by Mr Walker. The practice will provide specialist medical services that would reasonably be expected to service a broad area of community. On Mr Walker's analysis of referrals, the medical centre will primarily serve the Launceston urban area, but within that area it will also primarily serve a smaller community area reflecting the area of the referrals.
5. In this case it is not necessary to rigidly define a geographic area for the local community. We are satisfied that the area identified by Ms Goess is too limited and that the area identified by Mr Walker's analysis is more appropriate in the circumstances, and that the proposal will primarily serve the local community for the purposes of the standard.
6. Clause 10.1.1.2 refers to 'compatible' non-residential uses. In 9 Sandy Bay Road Pty Ltd v Hobart City Council and Ors [2017] TASRMPAT 19 at [54] RMPAT approached compatible as meaning harmony or broad correspondence. In Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] the Court described the most apposite meaning of compatible in a planning context as being capable of existing together in harmony, something different from sameness. In Clarence City Council v Drury [2021] TASSC 5 at [22] Brett J explained that the determination of compatibility requires an overall qualitative comparison and assessment of how two things relate to each other, and is concerned with the ultimate result.
7. The evidence of Mr Walker demonstrates that a medical centre will be a compatible non-residential use. The majority of non-residential uses in the surrounding area are medical practices in former residential buildings. The proposed use will clearly be in harmony or broad correspondence with the locality, even at the restricted geographic area proposed by Ms Goess. While the locality is predominantly residential, it has a concentration of non-residential uses within the 1km radius referred to by Ms Goess, many of a medical nature to the northwest of the site on Elphin Road, as well as Scotch Oakburn College and Launceston Preparatory School and the Elphin Road Store, all within proximity to the site. The site falls within the range of those non-residential uses, albeit toward the southern edge, with the uses being more concentrated toward the north. The practice provides a service to the Launceston General Hospital both by taking referrals and by relieving pressure on the public patient plastic surgery waiting list. As identified by Mr Walker, the majority of non-residential uses in the surrounding area are medical practices located in former residential buildings.
8. Having had regard to the Zone Purpose Statement in cl 10.1.1.2, that the zone provide for compatible non-residential uses that primarily serve the local community, we are satisfied that a permit for the proposal should not be refused.

1. Ground C raises compatibility of the proposal with the pattern of use and development in the surrounding area, and the nature and scale of the proposed medical centre use. We have dealt with compatibility above. Mr Walker's evidence was that the of the 22 non-residential uses in the northern two-thirds of Elphin Road, 16 are medical centres operating from converted dwellings. This proposal will be for a medical centre operating during normal business hours from a converted dwelling with a maximum of 2 medical practitioners at any time and at most 48 patients attending per day: see Craig Webb Pty Ltd v Launceston City Council at [6]-[7] and [41]. The pattern of existing use and the nature and scale of the proposed use are not such as to warrant refusing a permit.
2. The parties joined contend that the proposal will adversely affect the residential amenity of the adjoining property at 108A Elphin Road by reason of noise, from other than mechanical plant, loss of privacy, and traffic generation and movement at the site. They say that this is a matter to be had regard to under cl 10.1.1.3 of the Zone Purpose Statements, that "non-residential uses are not to adversely affect residential amenity, through noise, activity outside of business hours, traffic generation and movement, or other offsite impacts".
3. In the Craig Webb Pty Ltd v Launceston City Council, we observed in respect to the assessment of effects on amenity, at [23]-[25]:

23. Amenity is defined in cl 4.1.3 of the Scheme as:

Means 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, pleasing or enjoyable.

24. Clause 10.4.14 does not prohibit any impact amenity. It is limited to unreasonable impact. In J Dunn v Central Coast Council and PLA Design [2018] TASRMPAT 27 at [49] an unreasonable loss of amenity was considered by the Resource Management and Planning Appeal Tribunal (RMPAT) to be one which is immoderate or exorbitant.

25. The assessment of impact on amenity should be undertaken objectively, A&N McCullough v Glamorgan Spring Bay Council & Ors [2019] TASRMPAT 30 at [23]. The assessment requires consideration of existing amenity: G Palmese v Hobart City Council & J Connolly [2022] TASCAT 137 at [43].

1. The appellant says that the issue of privacy is circumscribed by cl 10.4.14 P1(g) and traffic generation by cl 10.4.13 A1 and P1, leaving no residual discretion in respect to those matters.
2. The objective of cl 10.4.14 directly raises residential amenity:

To ensure that development for discretionary uses is compatible with the form and scale of residential development and does not unreasonably impact on the amenity of nearby sensitive uses.

'Sensitive use' includes a residential use: cl 4.1.3.

1. Clause 10.4.14 applies to development for discretionary uses. It provides no acceptable solution and a proposal for a discretionary use must satisfy P1, which provides that "development must be compatible with the form and scale of residential development and not unreasonably impact on the amenity of nearby sensitive uses, having regard to" certain matters listed (a)-(m). The matter to be had regard to in P1(g) is "solar access and privacy of habitable room windows and private open spaces of adjoining dwellings".
2. In Craig Webb Pty Ltd v Launceston City Council we considered P1 at [16]-[33], including specifically P1(g) at [29]-[30], and concluded at [34] that:

None of the matters raised in P1 would individually give rise to an unreasonable impact on the amenity of the neighbouring sensitive use. Nor would they have an unreasonable impact when the effects are taken together. The proposal will comply with cl 10.4.14 P1 of the Scheme.

1. That determination was not challenged on the appeal to the Court. P1(g) directly addresses amenity effects on privacy. Insofar as there is any residual discretion arising from areas of 108A Elphin Road other than habitable room windows and private open spaces, and none was specifically identified, the analysis and conclusion in Craig Webb Pty Ltd v Launceston City Council will apply to those areas.
2. Clause 10.4.13 deals with the location of car parking. It was raised in the grounds of appeal, but not pursued by the parties joined, as noted at [15] of Craig Webb Pty Ltd v Launceston City Council. The objective of the clause includes to "protect residents from vehicular noise within sites". The clause contains acceptable solutions restricting carparking in the primary front setback of a site. The performance criteria P1 provides that "shared driveways or car parking spaces (other than for single dwellings) must be located to not unreasonably impact on the amenity of the adjoining habitable rooms, having regard to" matters listed (a)-(e). P1(e) expressly refers to noise mitigation: "any noise mitigation measures including screening or landscaping". P1 directly addresses noise impact from traffic generation and movement on the site. Noise arising in connection with parking and vehicle movements was dealt with in Craig Webb Pty Ltd v Launceston City Council at [33]. The remaining elements of P1(a)-(d) address the location, number and dimensions of parking spaces and driveways. The standard does not expressly address traffic generation and movement on the site, but it does address the amenity effects arising from those matters.
3. The remaining matter claimed to affect amenity is noise other than from mechanical plant and equipment. Noise from mechanical plant and equipment is directly addressed in cl 10.3.2. Given our reasons above, noise generated by traffic and parking movements on the site is also covered by standards. That essentially leaves noise from people and pedestrian movements on the site. No other noise emissions were identified.
4. At the initial hearing evidence was given by Mr Richard Burk, an expert in road and traffic engineering. Mr Burk described Elphin Road as a secondary arterial road, with 12,650 vehicle movements per day immediately adjacent to the site. Ms Goess accepted that the location experienced a high level of traffic noise, which is at odds with her description of the amenity of 108A as including enjoyment of a quiet home, free from the interference of external noise, although her evidence qualified that by referring to noise from the site.
5. In the absence of any evidence as to existing noise levels and anticipated noise levels generated by the proposed use, we infer that the existing traffic noise would result in elevated background noise levels above which the movement of pedestrians on the site will likely be difficult to discern, or at least not prominent. If noise from vehicle movements and parking on the site was not covered by a standard, the same would hold true for the noise generated by the movement of cars entering the site and parking.
6. The anticipated number of patients would vary from nil to 48 per day. No doubt some patients may be accompanied by family or friends. The operating hours for the medical centre would be Monday to Friday from 8:30am to 5:30pm and Saturday from 9:00am to 1:00pm, with a maximum of two medical practitioners attending at any time. Entry to the medical centre will be along a path adjacent to 108A Elphin Road. It seems unlikely that patients attending a medical practice will be particularly noisy, or remain outside the building for any length of time. The conditions of the permit require a section of new side boundary fencing proposed to match the existing fence height, which will be 2.1m above natural ground level and provide screening for the patients.
7. Taking into account the existing background traffic noise from Elphin Road, the fencing combined with existing landscaping, the hours of operation, the location of the pedestrian path and the anticipated patient numbers, we are satisfied that pedestrian noise and movements will not so adversely impact the amenity of 108A Elphin Road as to warrant the refusal of a permit.
8. The matters raised in ground C, whether taken individually or together, do not result in us forming a view that a permit should be refused.

1. Gillard v Launceston City Council identifies a residual discretion to be exercised, taking into account as a fundamental element of our decision making relevant factors raised by the parties joined, including factors arising from the Zone Purpose Statements and not addressed by standards. The relevant elements of the Zone Purpose Statements identified by the parties are not to be rigidly applied as standards. We are satisfied that having regard to the purpose of the zone, insofar as the purpose is not covered by a standard or standards, and the other relevant matters raised by the grounds of refusal, the discretion should be exercised in favour of granting a permit.
2. Neither of the grounds for refusal on the remitted hearing are made out. We determined in Craig Webb Pty Ltd v Launceston City Council (No.2) that the remaining grounds of refusal, which were not the subject of the appeal to the Court, were not made out. We are satisfied that the discretion to refuse or permit the proposed use should be exercised in favour of granting a permit for the proposal.
3. Conditions of the permit as agreed by the parties or determined by the Tribunal were annexed to the reasons for decision in Craig Webb Pty Ltd v Launceston City Council (No.2). No party has proposed any variation to those conditions.
4. Accordingly:
   1. The decision of the Launceston City Council to refuse a permit for application DA0123/2022 in respect to 108 Elphin Road, Newstead is set aside and substituted with a decision to grant a permit subject to the conditions of approval set out in annexure A to the reasons for decision in Craig Webb Pty Ltd v Launceston City Council (No 2) [2023] TASCAT 146.
   2. The Launceston City Council is directed to issue a permit for application DA0123/2022 according with these orders within 14 days.
   3. Any application for an order for costs in the appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.