Environment and planning - Planning appeal - Grounds of appeal - Grounds unreasonably prolix, discursive, and argumentative - Requirement for further and better revised grounds of appeal.

Historic Cultural Heritage Act 1995;

Land Use Planning and Approvals Act 1993;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 10, 79, 89, 90, 113, Sch 2, Pt 8

Hay v West Tamar Council [2025] TASCAT 31;

Neilsen v George Town Council [2025] TASCAT 76;

Sullivan v Waratah/Wynyard Council and Burnie Airport Corporation Pty Ltd v Waratah/Wynyard Council [2023] TASCAT 61

1. The second respondent (the council) has applied for this appeal to be dismissed or struck out under the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), s 89(2). The appeal is against the council's grant of a permit under the Historic Cultural Heritage Act 1995 (HCHA) to itself. In the alternative, the council seeks to reagitate its earlier application for further and better revised grounds of appeal.

89. Frivolous or vexatious proceedings > > (1) This section applies if the Tribunal believes that a proceeding or a part of a proceeding - > > (a) is frivolous, vexatious, misconceived or lacking in substance; or > > (b) is otherwise an abuse of process. > > (2) If this section applies, the Tribunal may order that the proceedings, or the part of a proceeding, be dismissed or struck out and may make any related or ancillary order. > > ...

2. I recently considered s 89 in Neilsen v George Town Council [2025] TASCAT 76. I said, at [27]-[29] and [31]-[32]:

[27] The TASCAT Act, s 89 has been considered in several cases. In E Allan v Strata Corporation No 180683 [2022] TASCAT 29, the Tribunal said at [10]: > > Section 89 of the TASCAT Act provides that the Tribunal may order that proceedings be dismissed where it believes that they are frivolous, vexatious, misconceived or lacking in substance or are otherwise an abuse of process. What might be frivolous, vexatious, misconceived, lacking in substance or an abuse of process can be protean, and the natural meaning of those words has somewhat contumelious overtones. However, their broad meaning in law is that the proceeding lacks a legal foundation to provide relief. > > [28] The terms frivolous, vexatious, misconceived, and lacking in substance are often used in legislative provisions relating to summary dismissal. Hunt J considered the four terms in Langley v Niland [1981] 2 NSWLR 104, which has been applied in several cases of this tribunal. At 107, his Honour said that frivolous, vexatious, and lacking in substance: > > [C]learly refer to the insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all. > > [29] Hunt J considered misconceived to mean "something which is founded upon a wrong idea as to the facts". > > ... > > [31] With respect to the appeal itself, the Tribunal's task is to produce the correct or preferable decision, standing in the shoes of the planning authority: TASCAT Act, s 75(1). On hearing the appeal, I will need to determine whether the proposal complies with LUPAA and the relevant planning scheme requirements... My task is not to determine whether the proposal has merit in a broader sense or to conduct some wide-ranging inquiry into the process by which the proposal was conceived by the council as developer and approved as planning authority. > > [32] On the other hand, I should not take an overly literal or legalistic approach. The Tribunal is required to proceed "with the minimum of formality" and act "without regard to legal technicalities": TASCAT Act, s 79(a) and (c).

3. The Tribunal has previously considered the approach to grounds of appeal, particularly in the context of an application to dismiss a proceeding. In Sullivan v Waratah/Wynyard Council and Burnie Airport Corporation Pty Ltd v Waratah/Wynyard Council [2023] TASCAT 61, Deputy President Grueber said at [22]-[23], and [25]-[28]:

[22] It is arguable that the grounds in an appeal against the grant of the permit need only engage the relevant performance criteria. This is because an appeal proceeds as a hearing de novo and a developer-respondent must, in a practical sense, show compliance with the applicable standards to the objective satisfaction of the Tribunal standing in the place of the planning authority. This argument follows from the proper approach to a performance based planning scheme, as described by Brett J in Boland v Clarence City Council [2021] TASFC 5 at [9] to [11]. However, as a matter of fairness, in practice grounds should be narrowed to the real issues in dispute: Tricare [Bayview] Pty Ltd v Council of the City of Gold Coast [2022] QPEC 31 at [145] to [147]. An appeal is not normal inter partes adversarial litigation and the issues are framed by the Tribunal not the parties: Mount Carmel College v Hobart City Council [2015] TASRMPAT 22 at [19]. > > [23] In Sandy Bay Developments v Loring [1991] TASSC 34 (Loring), the Full Court of the Supreme Court considered the nature of a planning appeal under provisions of the Local Government Act 1962, before the passing of the Land Use Planning and Approvals Act 1993 (LUPAA) and the Resource Management and Planning Appeal Tribunal Act 1993 (the RMPAT Act), and the incorporation of procedural aspects from the RMPAT Act in the TASCAT Act. The relevant provisions of the Local Government Act, like the RMPAT Act and the TASCAT Act, did not require that an appeal set out the grounds relied on. An appellant is not, by legislation, required to provide and adhere to grounds of appeal: Loring per Wright J at [28] and Crawford J at [86] to [87]. However, as a matter of fairness in all the circumstances, the Tribunal may require grounds and limit an appellant to its grounds of appeal: Loring per Wright J at [37] to [39] and Crawford J at [88]. The Tribunal is not obligated to go outside the issues raised by the parties: Loring per Green CJ at [7], Wright J at [36] and Crawford J at [85], [88] and [92]. > > ... > > [25] Grounds of appeal are not directly analogous to pleadings in inter partes civil litigation, however some assistance can be gained from the approach of courts to the provision of particulars. In R v Associated Northern Collieries [2010] HCA 61 Isaacs J said that the fundamental purpose of particulars is: > > ...that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms "surprise"... > > [26] In Hanson-Young v Leyonhjelm [2018] FCA 1688 at [17] White J said: > > Thus, the FCR maintains the distinction between material facts and particulars. However, in practice the distinction is often blurred. The Court is more concerned with whether respondents are sufficiently informed of the case they have to meet than with the niceties of the form by which that is achieved. Technical objections to pleadings on the ground of alleged want of form are generally received with less enthusiasm than was the case in times past, providing that the pleadings, including the particulars, disclose sufficiently the case which the opposing party must meet at trial and disclose a reasonable cause of action: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466 (von Doussa J). > > [27] In Magna Alloys v Ten Haaf [1980] TasUnrep 42 Green CJ said: > > All allegations made in pleadings are capable of being analysed, reduced and dissected into an infinite number of detailed parts. But nearly because each such part can be said to better inform the opposite party of an allegation being made against him does not automatically entitle that party to be furnished with further particulars. It is a matter for the Court in the exercise of its discretion to determine what degree of particularity is appropriate in each case. > > [28] Section 10 of the TASCAT act sets out the main objectives of the Tribunal. Section 10(1)(f) includes the objective "to act with as little formality and technicality as possible, including by informing itself in the manner that the Tribunal thinks fit". This appeal involves some complexity, the proposal has a commercial aspect and the appellant and the second respondent are represented by experienced counsel, all of which invites a degree of technicality in formulation of the grounds to achieve fair disclosure of the case raised by the appellants. The RPS Practice Direction 1 of the Tribunal includes: > > Grounds of Appeal and Issues in Dispute: > > 1.9 A ground of appeal or issue in dispute must identify the provisions of the legislation or subordinate legislation (such as a planning scheme) that makes the issue a relevant one to the proceedings. > > 1.10 If the ground of appeal or issue in dispute does not relate to a specific provision of legislation or subordinate legislation, then sufficient details setting out the legal basis of its relevance must be provided (for example, a legal doctrine by reference to case law). > > 1.11 A ground of appeal or issue in dispute must provide sufficient particulars setting out the dispute that arises with the provision.

1. The council is both the developer and the planning authority. The development application is in respect of subdivision of land, removal of vegetation, and construction of a public toilet building and associated works.
2. The appellant is unhappy about the development. His original grounds of appeal were filed on 8 January 2025. He filed amended grounds on 27 March in response to a direction made by a registrar. He filed further amended grounds on 15 May in response to the council's application for further and better revised grounds. That application foreshadowed a subsequent application (being the one before me) to dismiss or strike out the appeal.
3. The appeal is listed for hearing commencing on 17 June. Consistent with the Tribunal's practice directions, evidence is due to be filed and served shortly.
4. Doing the best I can, the appellant appears to contend that the development is heritage work which requires heritage approval under the HCHA, Pt 6.
5. The further amended grounds of appeal remain prolix, discursive, and argumentative. They comprise several documents running to some 38 pages. While they refer to some planning scheme, Land Use Planning and Approvals Act 1993 (LUPAA), and HCHA requirements, those requirements are extracted without it being clear how or in what way the council's application should have been refused. The further amended grounds of appeal also refer to heritage work being undertaken without approval and make various allegations of misfeasance and malintent on the part of the council in relation to this development application and in relation to other matters which, so far as I can tell, are irrelevant and date back several years. They allege that the council has committed a summary offence contrary to the HCHA or the LUPAA, neither of which is within the Tribunal's jurisdiction.

1. The appellant opposes the dismissal application. He says that the council is "trying to defend the indefensible... [and] attempting to subvert just assessment of [his] claim". Much of the appellant's submissions are irrelevant to the test under s 89A. They cover similar ground to his further amended grounds of appeal.
2. The appellant correctly points out the Tribunal's objective in the TASCAT Act, s 10(1)(f) "to act with as little formality and technicality as possible". See also s 79 as to principles governing proceedings. Grounds of appeal, or grounds of refusal, need not be drafted as if they were a formal notice of appeal to an appellate court. However, the identification of grounds may be necessary to ensure that an appeal is conducted fairly and efficiently.
3. Here, the absence of proper grounds of appeal has two consequences. First, and most significantly, it is difficult for the respondent to adequately respond to and the Tribunal to adequately assess the merits of the appeal. This is procedurally unfair to the council. Second, it means that the hearing would be unduly lengthened as the council may need to lead evidence against any possible bases which might justify the refusal of the application. Put differently, the absence of proper grounds means that the council is asked to address a moving, amorphous target. So much so is inconsistent with the Tribunal's statutory objective to "keep costs to parties... to a minimum insofar as is just and appropriate": TASCAT Act, s 10(1)(d). To the extent that the further amended grounds of appeal do raise justiciable issues, they are buried in the prolix, discursive, argumentative, and irrelevant material.
4. It is relevant that the appellant has been on notice as to there being some concerns - either on the part of the Tribunal or the council - as to the adequacy of his grounds of appeal at least since the Tribunal determined to extend the time for filing the appeal: Hay v West Tamar Council [2025] TASCAT 31 at [13]. Since then, the appellant has twice amended his grounds of appeal. He has also had the benefit of what I consider to be, with respect, helpful information from the council's solicitors in their letter dated 15 April 2025 regarding the appeal and the proper drafting of grounds. The council identified cl 11.4.2 A2/P2 and A3/P3 (relating to building height, setback, and siting) and cl C7.6.1 A2/P2.1 and P2.2 (relating to building works within a future costal refugia area) of the Tasmanian Planning Scheme - West Tamar as the only possible matters relevant to the appeal. The extent to which the appellant embraces those is unclear.
5. It is difficult to strike out or dismiss any particular part of the further amended grounds of appeal because they are not sequential. Although finely balanced, I am not persuaded that I should dismiss the appeal in whole or in part. The principal reason is that, as I have endeavoured to explain at paragraph [13], potentially relevant matters are identified. However, I am satisfied that I should direct the appellant to file further and better revised grounds of appeal. I am also satisfied that I should make a conditional order, as permitted under the TASCAT Act, s 113(2), to dismiss the proceeding under s 89 in the event that further and better revised grounds of appeal are not filed.
6. I will grant liberty to apply to list the matter on short notice to hear any further application to dismiss under the TASCAT Act, s 89 or 90 if a party is of the view that the further and better revised grounds of appeal remain inadequate.

1. I make the following orders:
   1. The application to dismiss the proceeding be refused.
   2. The appellant file and serve further and better revised grounds of appeal by 30 May 2025.
   3. In the event that Order 2 not be complied with, the proceeding be dismissed.
   4. Liberty to apply on two days' notice.