West Tamar Council (as planning authority) (First Respondent)

West Tamar Council (as applicant) (Second Respondent)

4 June 2025 (revised from the transcript of 2 June 2025)

1. Pursuant to the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), s 90, the proceeding be dismissed.
2. Pursuant to the TASCAT Act, s 78(1), the decision under review be affirmed.
3. Within 21 days any application for costs be filed and served together with submissions in support. In the absence of any such application being so filed and served, each party bear its own costs.

Environment and planning - Planning appeal - Summary dismissal - Frivolous or vexatious grounds of appeal - Proceedings being conducted to cause disadvantage - Grounds of appeal unreasonably prolix, discursive, and argumentative - Failure to identify relevant planning matters - Defects not cured despite several opportunities.

Land Use Planning and Approvals Act 1993;

Historic Cultural Heritage Act 1995;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 10, 78, 89 and 90.

Hay v West Tamar Council (No 2) [2025] TASCAT 102

Joined Party: C Bonner - Tasmanian Heritage Council

EDITED REASONS FOR DETERMINATION DELIVERED ORALLY

1. The council as planning authority (the council) applies to dismiss the appeal. There are two bases of that application.
2. The first is that the appeal is frivolous or vexatious within the meaning of s 89(1)(a) of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) in that the council says the appeal is misconceived or lacking in substance.
3. The second basis is that the appeal is being conducted to cause disadvantage within the meaning of s 90 of the TASCAT Act in that the appellant is "conducting the proceedings in a way that unnecessarily disadvantages" the council.
4. The council's application is supported by the council in its capacity as applicant and by the Tasmanian Heritage Council. The appellant opposes the application.
5. I set out the history of this matter in Hay v West Tamar Council (No 2) [2025] TASCAT 102. At the conclusion of that decision, I made 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; and
   4. Liberty to apply on two days' notice.
6. The appellant has since filed amended grounds of appeal by way of letter dated 27 May 2025 and a document titled "Appeal P2025/8 Legislation and Ethics". The council remains dissatisfied with the grounds and seeks summary dismissal.

Summary dismissal - sections 89 and 90 of the TASCAT Act

1. I turn to the law relevant to ss 89 and 90 of the TASCAT Act.

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.

1. I set out the relevant principles in Hay v West Tamar Council (No 2) at [3]-[4]. It is unnecessary for me to repeat them here.

Section 90 - proceedings being conducted to cause disadvantage

1. Section 90 is titled 'Proceedings being conducted to cause disadvantage'. Sub-section (1) provides:

(1) This section applies if the Tribunal believes on reasonable grounds that a party to any proceedings is conducting the proceedings in a way that unnecessarily disadvantages another party to the proceedings by conduct such as - > > (a) failing to comply with an order or direction of the Tribunal without reasonable cause; or > > (b) failing to comply with this Act or a relevant Act; or > > (c) asking for an adjournment, the need for which is attributable to a failure described in paragraph (a) or (b); or > > (d) attempting to deceive another party to the proceedings or the Tribunal; or > > (e) vexatiously conducting the proceedings; or > > (f) failing to attend any hearing in the proceedings.

2. The provision confers a broad power on the Tribunal to, amongst other things, dismiss or strike out a proceeding if the Tribunal believes on reasonable grounds that a party to any proceedings is conducting the proceedings in a way that unnecessarily disadvantages another party.
3. Sub-section (1) sets out a series of examples of conduct that may constitute unnecessary disadvantage, although these are not exhaustive.

1. In considering ss 89 and 90 it is relevant that moral culpability, malintent, or notion of conduct being deliberate on the part of the appellant is not required.
2. There is no suggestion that the appellant is deliberately causing disadvantage or intending to cause disadvantage. Nor, as Mr Holbrook has indicated, is there any suggestion that the appellant is acting in a frivolous or vexatious manner. Rather, the council's case is that the appeal is misconceived and lacking in substance.
3. There is, on the appellant's part, and without intending to be critical, a failure to meaningfully engage with and cure the defects identified in Hay v West Tamar Council (No 2) on 26 May 2025.
4. There is significant overlap between the application and ss 89 and 90. The circumstances and the conduct may give rise to an application under either provision. I intend, however, to deal with s 90 first for reasons I shall endeavour to explain.
5. Section 10 of the TASCAT Act sets out some principles that are relevant to the conduct of proceedings. I also take into account that the appellant is self-represented in this matter. However, the Tribunal's objectives under s 10 and the fact that the appellant is self-represented does not obviate the need for me to ensure that the proceeding is conducted in an expeditious and procedurally fair way, and in particular a way that is procedurally fair to the council as the mover in respect of this application before me this morning.
6. In this case the appellant has had several opportunities to cure the defects in his grounds of appeal. I have set out those circumstances in my earlier decision.
7. During the hearing of this application this morning, Mr Hay made detailed submissions regarding his appeal and the circumstances surrounding it. In substance he suggests that the council has committed an offence by cutting down some trees and he refers to some other matters. He refers to this as "an abuse of power" and "clear vandalism". He refers also to some provisions relating to the Local Historic Heritage Code (the Code) that exists under the Tasmanian Planning Scheme. However, as Mr Holbrook points out, the Code does not apply to this application. The vegetation in question is not listed as a significant tree under the Code.
8. Mr Hay also referred to the retrospective nature of the application. However, as I endeavoured to explain, that is not relevant to the question of summary dismissal.
9. In summary, the grounds of appeal remain, as I indicated in my earlier decision, prolix, discursive, and argumentative. While they refer to the Tasmanian Planning Scheme, the Land Use Planning and Approvals Act 1993, and the Historic Cultural Heritage Act 1995 it is not clear how or in what way the council's application should have been refused.
10. The absence of proper grounds in this appeal has two consequences as I indicated in my earlier decision. First and most significantly, it is difficult for the council to respond adequately to and the Tribunal to adequately assess the merits of the appeal. This is procedurally unfair to all the parties. Second, the hearing would be unduly lengthened as the council may need to lead evidence against any possible basis which might justify refusal of the application. As I outlined in my earlier decision, the absence of proper grounds in this case 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 of parties to a minimum insofar as is just and appropriate" in the TASCAT Act, s 10(f).
11. I am satisfied that the manner in which the proceeding has been conducted unnecessarily disadvantages the council and, indeed, the other parties, particularly in light of the upcoming hearing date and deadline for the filing of evidence.
12. While Mr Hay has complied with directions on their face, the grounds of appeal remain inadequate and the issues that have been identified remain unaddressed.

1. I am therefore satisfied that the proceedings should be dismissed under s 90 of the TASCAT Act.
2. Although strictly speaking unnecessary, I will briefly consider s 89. I have considered s 90 first as the factual basis of the council's application is directed to the manner in which the appellant is conducting the proceedings. That makes s 90, on its face, to seem to be a better fit than s 89. For the same reasons, particularly the appellant's failure to identify relevant planning matters despite several opportunities, I am satisfied that the proceeding in its entirety is misconceived and lacking in substance. The appropriate order having regard to the history of the matter is that, in the alternative, it be dismissed under s 89 of the TASCAT Act.

1. For these reasons I order the following:
   1. Pursuant to the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), s 90, the proceeding be dismissed.
   2. Pursuant to the TASCAT Act, s 78(1), the decision under review be affirmed.
   3. Within 21 days any application for costs be filed and served together with submissions in support. In the absence of any such application being so filed and served, each party bear its own costs.