mixed. Motion to review dismissed in relation to Anthony Gamble, Deborah Gamble (nee Watson), Shelley Slaghuis and RitchShelley Pty Ltd; convictions and penalties for those defendants upheld. Conviction and...
Key principles
The Land Use Planning and Approvals Act 1993 (LUPA) applies to the use of land even where that use involves a movable object (a mobile coffee cart); 'use' has its ordinary and...
A Certificate of Registration of a Food Business issued under the Food Act does not operate as planning permission or otherwise displace the requirement to obtain a planning...
An existing development application / permit authorising redevelopment (including a future built cafe) did not authorise the new and different use of selling coffee from a mobile...
The statutory defence of honest and reasonable mistake is limited to mistakes of fact; a mistake about the legal effect of legislation, permits or certificates is a mistake of...
Issues before the court
Does the LUPA apply to a use of land that involves a movable object (a mobile coffee cart) rather than fixed 'bricks and mortar'?
Plain English Summary
The Supreme Court (Wood J) held that selling coffee from a mobile cart on private property was a 'use' of land for planning purposes and required a planning permit under the Kingborough Interim Planning Scheme and LUPA. A food registration certificate did not substitute for planning permission and a prior development approval for a built café did not authorise a distinct mobile-cart operation. The defendants' genuine belief they were authorised was a mistake about the law, not a factual mistake, so the honest-and-reasonable-mistake defence did not help. Convictions and penalties were upheld for those with sufficient evidence; the conviction against Mr Paine was quashed because there was insufficient evidence he committed the offence.
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Deep Dive
1,977 words · generated 11/07/2026
What happened
Facts in brief
Can a Certificate of Registration of a Food Business (Food Act) be taken as planning permission or otherwise excuse the need for a planning permit...
Did the prior development approval (DA to build a café) authorise the mobile coffee cart activity, or otherwise mean no new permit was needed?
Is honest and reasonable mistake available as a defence where defendants believed their conduct was lawful based on council communications and a...
Cited legislation
3 cited instruments linked from this judgment.
A mobile coffee business (Tamp and Grind, operated by RitchShelley Pty Ltd; primary operator Shelley Slaghuis, director Ritchie Paine) set up a mobile coffee cart on the frontage of the Kingston Motel at 31 Osborne Esplanade (owners Anthony Paul Gamble and Deborah Watson). The van sold coffee and a small range of food to motel guests and members of the public from about 26 January 2018 (see factual chronology, opening paras).
Kingborough Council officers attended, spoke to the parties, and ultimately issued a notice of intention to issue an enforcement notice and an enforcement notice under the Land Use Planning and Approvals Act 1993 (LUPA) (7 March 2018), and infringement notices for alleged breach of s 63(3) LUPA (7 March 2018).
Magistrates Court proceedings followed. The magistrate found the defendants guilty of using or allowing use of the land contrary to the planning scheme and of failing to comply with an enforcement notice. Fines and daily penalties were imposed (magistrate's decision quoted and then subject to review).
The defendants (except the company) sought review in the Supreme Court (motion to review). Wood J dismissed the challenge for all appellants except Mr Paine, whose conviction was quashed for insufficiency of evidence. The remainder of the convictions and penalties were upheld.
Parties
Appellants: Anthony Paul Gamble; Deborah Anne Gamble (nee Watson); Shelley Adriana Slaghuis; Ritchie Paine; RitchShelley Pty Ltd.
Respondent: Kingborough Council.
Procedural posture
Convictions and penalties from the Magistrates Court were the subject of a motion to review in the Supreme Court of Tasmania. The Supreme Court analysed statutory construction issues under LUPA, planning-scheme categorisation, the effect of a Food Act registration, and the availability of an honest-and-reasonable-mistake defence. Supreme Court dismissed the review except on the ground of insufficiency of evidence for one appellant (Paibe), whose conviction was quashed.
Why the court decided this way
The decision turns on two core legal axes:
Statutory construction of 'use' and the permit requirement
LUPA separates 'use' from 'development' (s 3). 'Use' bears its ordinary and broad meaning: it "includes the manner of utilising land" and so covers activities performed on land, even where those activities involve movable objects (Wood J's statutory analysis).
The planning scheme classes uses to determine whether a permit is required. The Kingborough Interim Planning Scheme 2015 placed "Food Services" within the Local Business zone's permitted uses (cl 20.2), and cl 8.4 requires that, except where exceptions apply, a permit must be granted and in effect before commencing a use in a use class that requires a permit.
The mobile cart activity was properly characterised within the "Food Services" use class, so a permit was required for that use on the property absent a permit granted "in respect of that use" (s 51(1) LUPA).
Therefore, LUPA applied to the cart activity; the "bricks and mortar" argument failed.
Defences and the Food Act certificate
The defendants relied on a Certificate of Registration of a Food Business (Food Act) and communications from council officers which, they said, led them reasonably to believe they were authorised to operate statewide provided they had the landowner's permission.
Wood J emphasised the legal principle that mistake of fact can be a defence to a regulatory offence but mistake of law is not: an honest belief about facts that, if true, would make the conduct lawful can exculpate; by contrast, being wrong about the legal effect of statutes, permits or registrations (a mistake of law) does not. The Court applied He Kaw Teh and related authority to hold the applicants' belief was about legal entitlement (law), not about some operative fact, and therefore the honest-and-reasonable-mistake defence was unavailable.
The Food Act registration itself was conditional on obtaining approvals required under other Acts and therefore did not negate the need for a planning permit under LUPA.
Other notable points
The Court rejected the argument that clause 8.2.2 (categorisation of a use that is directly associated and subservient to another use) meant the coffee-cart activity could be treated as visitor accommodation so as to avoid a permit. Even if categorisation favoured 'visitor accommodation' the law requires a permit unless a permit has been granted in respect of that use; promotion of an activity as ancillary is a factual question and, legally, an existing DA does not cover a new activity not substantially in accordance with the DA.
The Court quashed Mr Paine's conviction because the evidence against him was insufficient; the prosecution had not established Paine personally used or allowed the land to be used as charged.
Before and after state of the law
Before
The case operates on settled principles: planning statutes govern use of land; 'use' is broader than development; planning permits required under planning schemes; certificates granted under distinct statutory regimes (e.g. Food Act) do not, by themselves, create planning authorisation. The legal distinction between mistake of fact and mistake of law is long-established in criminal/regulatory law (He Kaw Teh, Proudman v Dayman, CTM v The Queen, Ostrowski).
After (clarified points)
Gamble v Kingborough Council reinforces that LUPA's regulatory scope extends beyond permanent structures and embraces the manner in which land is used, including activities involving mobile units on the land.
The judgment is a useful reminder that administrative communications (including those by council officers) and a food registration certificate cannot be relied upon to create planning authorisation where the planning statute and scheme require a permit.
The decision confirms that, in the Tasmanian planning/regulatory context, appeals cannot obscure the fundamental rule: honest-and-reasonable-mistake of fact is available but not when the belief relates to the legal regime itself.
Practical consequence
Operators of mobile food businesses must consider planning law and obtain any necessary development approvals; a registration under food safety laws does not substitute for planning approval.
Key passages with plain-English translation
Statutory definition of 'use'
Quote (paraphrase of the judgment): "'use' in relation to land includes the manner of utilising land but does not include the undertaking of development."
Translation: The Act treats 'use' broadly; it is about what you do on the land, not only what physical works you put in the ground.
On food registration versus planning permission
Quote (paraphrase): The Food Act certificate is conditional on obtaining approvals under other Acts, including the LUPA.
Translation: Getting a food-business registration does not automatically mean you have the planning permission to operate on a particular property.
On mistake of law
Quote (paraphrase): The applicants' mistake related to the law (legal effect of permits and the certificate); they did not raise a mistake of fact, so the honest-and-reasonable-mistake defence was not available.
Translation: Believing you are legally authorised when, in truth, you are mistaken about the law is not a defence. Only a mistaken belief about facts that, if true, would make your conduct legal can excuse you.
On existing DA and 'substantially in accordance'
Quote (paraphrase): A permit for a development requires that use or development be substantially in accordance with the DA; a mobile cart selling coffee is not substantially the same as a built café authorised by the DA.
Translation: Even if a DA contemplated a cafe building, that does not mean a wholly different way of selling (a mobile cart) is covered.
What fact patterns trigger this precedent
Mobile or temporary food vendors or other mobile commercial activities operating on private or public land where planning schemes regulate the land use class.
Landowners inviting third-party vendors onto their property without obtaining a development approval where the planning scheme classifies the activity as requiring a permit.
Situations where business operators rely on non-planning approvals (for example, food-safety registrations) or informal advice from council officers and where the key error is about the legal effect of those approvals rather than about an operative fact.
Cases where a prior DA or existing permit authorised a built form or a specific activity, and a new variant or ancillary activity appears that was not specifically contemplated by the DA.
If a fact pattern includes: (a) operation of a mobile business on land that falls within a planning zone listing the use as permitted/discretionary; (b) no permit "in respect of that use" has been granted; and (c) the purported defence is reliance on a non-planning approval or misunderstanding of the legal regime, Gamble is directly on point.
How later courts have treated it
(This decision is from the Tasmanian Supreme Court and explicates local statutory interpretation under LUPA. Practitioners should search subsequent Tasmanian authorities and RMPAT decisions for citation or distinction. The judgment itself cites High Court authority on mistake of law (He Kaw Teh; CTM; Ostrowski) and planning authorities on the meaning of 'use' and DA compliance (Newcastle City Council; Australian Postal Corp).)
Practical effect in subsequent litigation is likely to be:
Reliance by councils on Gamble to require planning permits for temporary/mobile operations despite food registration.
Use by prosecutors to resist defences based on client reliance upon council communications or food registrations when the issue is legal entitlement.
Persuasive authority in other jurisdictions for the proposition that 'use' reaches activities using movable plant or vehicles on land.
Still-open questions
Fact-intensive boundary of 'directly associated and subservient' (cl 8.2.2)
The Court identified factors relevant to deciding whether a mobile cart is genuinely ancillary to an existing use (promotion to guests, access, hours, proportion of customers), but stressed this is a factual question. How close must the link be before councillors and courts will treat the mobile activity as genuinely subservient? That remains a facts-driven determination in each case.
The interaction of temporary, transient use and planning regimes
The Court emphasised statutory reach to mobile activities. But there will be borderline cases (short-term events, pop-ups, markets, or transient uses) where proportionality, public interest and practical planning responses (temporary permits, exemptions) may be contested.
Administrative assurance and estoppel
The judgment rejects reliance on a Food Act certificate or informal council advice as creating planning authorisation. It leaves open how far equitable or administrative estoppel doctrines could protect a party who reasonably relied on unambiguous, authoritative, and binding advice from the planning authority itself. Gamble suggests caution; but circumstances where council's representations are unequivocal and lead to substantial investment may raise a harder question of remedy.
Regulatory calibration
The case underlines the risk for small operators. Policy questions remain about whether planning regimes should adopt tailored, lower-burden pathways (temporary permits or simple authorisations) for mobile food businesses to reduce mismatch between food-safety regulation and planning regulation.
Practical takeaways for practitioners and compliance officers
Do not assume food-safety registration equals planning permission. Check LUPA and local planning schemes and, where doubt exists, obtain a permit or written planning advice.
Where a client relies on council communications, secure formal written confirmation from the planning authority and, if possible, a written statement that the activity is permitted or that no permit is required.
If defending prosecutions under planning statutes, consider carefully whether the defence being advanced is a factual or legal mistake; only the former engages the honest-and-reasonable-mistake defence.
Ensure evidence links each charged individual to the use alleged; prosecutions against non-participating directors or passive parties may fail for evidential insufficiency, as occurred for Mr Paine.
Conclusion
Gamble v Kingborough Council is a clear, practically-focused decision: LUPA's reach includes activities that form the manner of utilising land; statutory planning permission is a separate requirement to operational or public-health approvals; and legal error cannot be converted into a factual defence. For mobile vendors and property owners, the safe course is to seek planning permission before commencing an activity that planning instruments may regulate.
Judgment (2 paragraphs)
[1]
For the reasons stated, the grounds of review have failed. There is the question of the evidentiary basis for a finding of guilt with respect to the applicant, Mr Ritchie Paine, and as indicated, counsel will be provided with an opportunity to be heard and I will invite written submissions. I shall proceed to dismiss the motion to review with respect to the other applicants.
[2]
The foregoing was published to the parties on 30 April and an order was made dismissing the motion to review in relation to the applicants, except Mr Ritchie Paine. The parties were given time to provide written submissions regarding the evidence against Mr Paine.
The respondent indicated in a letter to the Court that it made no submissions as to the evidentiary basis for a finding of guilt with respect to Mr Paine. Counsel for Mr Paine indicated that he also made no submissions. The motion to review with respect to Mr Paine was relisted on 2 June 2020.
It is uncontentious that the learned magistrate made an error of law and the motion to review with respect to Mr Paine should succeed. There was insufficient evidence upon which a magistrate acting reasonably could have found the charge against Mr Paine proved beyond reasonable doubt. It is conceded that the motion to review should be amended by adding a new ground to reflect this error. Accordingly, I make an order amending the motion to review by adding a new ground: "That the learned magistrate erred in law by finding the charge against Mr Ritchie Paine proved beyond reasonable doubt when the evidence was so lacking that it was not reasonably open to the magistrate to reach that conclusion." I make an order that the conviction and penalty imposed against Mr Paine by the learned magistrate on 19 December 2018 are quashed.
Parties
Applicant/Plaintiff:
Gamble
Respondent/Defendant:
Kingborough Council [2020] TASSC 12
Legislation Cited (3)
Use Planning and Approvals Act 1993
Approvals Act 1993
Licencing Act 1994
Cases Cited (10)
Gamble v Kingborough Council [2020] TASSC 12 (30 April 2020)
K Butorac and R & R Pearshouse v Kingborough Council and Australia Travel & Culture Group Pty Ltd[2018] TASRMPAT 24; Kempster v Manning[2006] TASSC 31, 148 LGERA 1; Australian Postal Corporation v Jane Anne Shoobridge[1997] TASSC 68, referred to.
The argument for the applicant is that the use of the land for the sale of coffee and a few limited food items is directly associated with and a subservient part of the use of the site for visitor accommodation and therefore, the use should be categorised into the same use class of visitor accommodation.
Whether or not the use of the land involving the coffee cart is directly associated with and is a subservient part of the use of the site involving visitor accommodation is a question of fact. This question was not explored in the evidence at the hearing. Matters such as whether the coffee cart was promoted within the motel, access to the location of the coffee cart from the motel, the percentage of guests of the motel purchasing coffee and enjoying the facilities, as opposed to members of the public, whether the coffee cart was operating at hours to suit motel guests, or to capitalise on times when the area would be busy with members of the public were not explored in the evidence. It can be accepted that it was convenient for guests of the motel to be able to purchase a coffee on the premises and enjoy it sitting outside on the property fronting the Esplanade. To some extent, the coffee cart complemented the services offered to guests of the motel. However, is also plain that the set up was pitched at members of the public, and was an inviting and convenient location for them, with access to the cart from a footpath on a beach esplanade. However, even if it could be shown that the use of the land involving the selling of coffee was subservient to the use of land as a motel, there seems to be an absence of a "direct" link between those relevant uses.
Putting to one side this question of fact, there is a pertinent legal question as to the consequences of categorising the use here as "visitor accommodation". Clause 20.2, the use table, provides that "visitor accommodation" is in the discretionary use class, rather than the permitted use class. The argument for the applicants was that if the use of the site fell within the visitor accommodation category, it fell within the ambit of a use which had already been approved, and a permit was not required. There was no authority or provision in the LUPA or the Planning Scheme cited for this critical proposition. It was argued that it was for the prosecution to prove beyond reasonable doubt that the correct categorisation was not visitor accommodation and that it was "food services".
It is argued for the respondents that if cl 8.2.2 is applicable, it does not exempt the applicants from the requirement to obtain a permit for the operation of the mobile coffee cart on the land. It is not an exemption provision. The operation of the mobile coffee cart was a new use and any use which, under the provisions of a planning scheme, requires a permit unless a permit has been granted "in respect of that use" and the permit is in effect: s 51(1) of the LUPA; cl 8.4 of the Planning Scheme_._ As a new use, it could not be contained with the existing permit.
At the hearing of the appeal, the respondent did not argue that the belief was not genuinely held. It was argued that it was not reasonable to hold that belief. The respondents highlighted the date of the offences which was the subject of the prosecution and that the notice of intention to issue enforcement notices was issued on 7 March in relation to the continued operation of the mobile coffee cart. Infringement notices were issued on the same date for breaching s 63 of the LUPA between 25 January and 7 March 2018. It was submitted for the respondent that the applicants' belief that the van was operating legally between 8 March 2018 and 3 June 2018 cannot have been reasonable, as the respondent disabused the applicants of any such belief through direct interaction, the issuing of enforcement notices and infringement notices.
In relation to regulatory offences which do not involve an element of guilty knowledge or intention, there is a strong presumption that a defence is available of honest and reasonable belief in a state of affairs which, if true, would have made the act innocent: Proudman v Dayman[1941] HCA 28; (1941) 67 CLR 536. An honest and reasonable mistake of fact is a ground of exculpation in the case of all statutory offences unless Parliament has clearly indicated to the contrary: He Kaw Teh v The Queen[1985] HCA 43; (1985) 157 CLR 523 at 574-577 per Brennan J. The task is one of statutory interpretation involving consideration of the language of the statute and various indicia concerning the subject matter of the legislation: He Kaw Teh at 574-578.
The ground of exculpation involves an honest and reasonable mistake of fact which, if true, would have made the act innocent. A mistake of law is not a ground of exculpation. Ignorance of the law is no excuse: CTM v The Queen[2008] HCA 25, 236 CLR 440 at and [8]. In , , the respondent had wanted to fish for rock lobster. He checked with the authorities on where to fish, and he took their advice. The advice was wrong. The regulations prohibited him from fishing where he did. The mistake was held to be one of law and he had no defence to the charge.
(1985) 157 CLR 523
(1957) 96 CLR 493
(1941) 67 CLR 536
AI Analysis
Outcomemixed
Disposition:
Motion to review dismissed in relation to Anthony Gamble, Deborah Gamble (nee Watson), Shelley Slaghuis and RitchShelley Pty Ltd; convictions and penalties for those defendants upheld. Conviction and penalty imposed on Ritchie Paine quashed for lack of evidential basis.
I accept the argument of the respondent. Clause 8.2.2 speaks to identifying the category of use. It cannot be read as providing an exemption from s 51(1) of the LUPA, reflected in cl 8.4, and the statutory requirement for a permit for a use of land that is not permitted by an existing permit.
The terms of the existing 2003 permit for redevelopment of the existing motel include demolition of two units to make way for a café, including a reception for the motel, dry goods and cool store, kitchen and servery and building a new apartment penthouse. As mentioned above, at the relevant time in the first half of 2018, the building works had not yet commenced. It is plain that the activity of selling coffee from a coffee cart is not an activity mentioned in the development application and is not an aspect of the permission granted. The permit for the operation of a motel requires that "use or development is to be substantially in accordance with DA 2003-332 submitted on 2 September 2003". This phrase "substantially in accordance with" requires substantial adherence to the content of the development application": Australian Postal Corporation v Jane Anne Shoobridge[1997] TASSC 68 at [10] and [15] per Wright J.
Thus, a permit is required for a use of land which involves a new activity, not mentioned in the development application and the existing permit, even if the new use or activity is linked to, or related to the activity permitted by the existing permit and is categorised in the same use class.
I can see no advantage to the applicants in categorising the use of land for the purpose of selling coffee from a mobile coffee cart as "visitor accommodation". They would still need a permit, and did not have one. The ground of review must fail.
A defendant has an evidentiary onus of raising the ground of exculpation as an issue. Once it is raised, the ultimate legal onus of disproving the ground lies on the prosecution: He Kaw Teh at 534- 535 and 574-575; CTM at 447, [8]; Hindrum v Lane[2014] TASFC 5, 24 Tas R 290. The standard of proof for the prosecution is beyond reasonable doubt: He Kaw Teh at 534-535 and 592-593; CTM at [8] and [199].
In order to discharge an evidentiary onus, a defendant does not have to give evidence, it may be raised in cross-examination of a prosecution witness or in evidence led on his behalf: He Kaw Teh at 592-593_._ Contrary to the comments made by the learned magistrate in this case, there is no onus upon an accused to prove honest and reasonable mistake upon the balance of probabilities.
It was not disputed that the applicants laboured under a genuine mistake that the use of the land involving the coffee cart was legal and they held a genuine belief that the Council was mistaken in its requirement for a permit under the Planning Scheme. However, accepting that such a belief was genuinely held, the defence is only available if the mistake is one of fact. The applicants' mistake related to the law: the effect of legislation, the legal effect of existing permits and a Certificate of Registration of Food Business. In essence, the applicants' mistake related to the legality of their conduct. The applicants did not raise mistake of fact. The ground of exculpation of honest and reasonable mistake of fact was not available. In light of this conclusion, the learned magistrate's error regarding the onus and burden of proof was immaterial. Even if his Honour had correctly applied the law, the determination that the ground of exculpation of honest and reasonable mistake was not available was correct.