//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
austlii:tas/TASRMPAT/2008/133
appellant. The appeal was permitted to proceed, but only under section 61(3A) of the Land Use Planning and Approvals Act 1993 and limited to consideration of the amendment to the original permit. The Tribunal...
A woman who objected to a planning permit tried to appeal after the deadline had passed for the original permit. She lodged her appeal when the council issued an amended permit. The Tribunal ruled that she could only appeal the specific changes in the amended permit, not the original approval. The Tribunal had to apply the law as it was, regardless of how she described her appeal.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
6 cited instruments linked from this judgment.
CITATION: J Davenport v. Break O'Day Council and F Bradley [2008] TASRMPAT 133
TITLE OF TRIBUNAL: Resource Management and Planning Appeal Tribunal
Restaurant - art gallery - art studio - dwelling - ancillary works
1. On the 11th December 2006 a bushfire swept through the East Coast township of Scamander destroying many homes and businesses. One of the many people affected by the fire was Ms Fran Bradley. She lost her home, her business and her artwork. Until the fire Ms Bradley had conducted an art gallery, bistro and artists studio at 62 Riverview Rd Scamander. Everything was totally destroyed by the firestorm. Ms Bradley appears to have got on with the business of rebuilding her life. Less than 12 months later she had located a block of land a few lots along from 62 Riverview Road, that was both available and apparently suited to the construction of a replacement business and home.
2. A development application was lodged on her behalf with the Break O'Day Council (the 'Council') on the 22nd November 2007. The Council is the relevant planning authority within the meaning of Section 3 of the Land Use Planning and Approvals Act 1993 (the 'Land Use Act'). The development application sought a permit to allow Ms Bradley to rebuild.
3. The Council advertised the fact of the development application in accordance with the requirements of the Land Use Act on the 12th December 2007. Eight days later, on the 20th December 2007, the Council made a lengthy request pursuant to Section 54 of the Land Use Act for further information of Ms Bradley's representatives.
4. On the 2nd January 2008 the Council received a representation from Jane Davenport and Brett Davenport. Mr and Mrs Davenport raised, in their representation, concerns that they had in relation to the proposal's "sandwich-board style signage", privacy, wall lengths, car parking and other things besides. They were of course entitled, by statute, to make such a representation. The Council was of course required, by statute, to take into account this (and other) representations.
5. In any event on the 11th February 2008 the Council decided to grant to Ms Bradley a permit allowing her to rebuild her business. Mr and Mrs Davenport were advised, in writing, and in accordance with Section 57(7) of the Land Use Act of the fact of the Council's decision to grant a permit. The advice that they received included, the following:
"Advice to representor
Should you or any other person having made a representation wish to appeal in respect of the abovementioned application, you may lodge a Notice of Appeal to the Resource Management and Planning Appeal Tribunal, pursuant to Section 61(5) of the Land Use Planning and Approvals Act 1993. Please find enclosed a notice of appeal form should you wish to exercise that right. Any appeal should be lodged within fourteen (14) days of this notice and until the expiry of this period, or, should you lodge an appeal, then this approval will not take effect until the determination or abandonment of the appeal. The applicant has a similar right of appeal with respect to the conditions of approval imposed
Please note that you will not be notified of an appeal if another party lodges such. Please keep an eye on the public notices of the local paper for the next 14 days or else contact Council or the Tribunal near the end of the 14 day period to ascertain whether any appeal has been lodged. If you are a valid representor, you may be joined to this appeal if you wish".
6. The advice is clear and in accordance with the law. Neither Mr Davenport nor Mrs Davenport suggest that they did not receive the notice. Neither Mr nor Mrs Davenport lodged an appeal with the Appeal Tribunal in relation to this permit.
7. Time passed. By notice dated the 9th May 2008 Mrs Davenport has appealed to the Appeal Tribunal, purportedly pursuant to section 61(5) of the Land Use Act. The subject of her appeal is the decision of the Council in relation to Ms Bradley's development application.
(5) If a planning authority grants a permit, any person who or relevant agency which, in respect of the application for that permit, has made a representation under section 57(5) may appeal to the Appeal Tribunal against the grant of the permit within 14 days after, as the case may be -
(a) the day on which notice was served on that person under section 57(7); or
(b) the day on which notice was served on that person under section 59(8).
9. It would seem that the Council issued, as it is entitled to do by statute, an amended permit pursuant to section 56 of Land Use Act. It would seem that Mrs Davenport, and other representors, received notification of the approval of the amendment to the original permit at about the same time.
10. Mrs Davenport claims to be entitled to appeal in respect of that decision, that is to say the amended permit decision of about the end of April beginning of May. About this she is correct. But her right to appeal is not one at large. It is necessary to look closely at the relevant legislation to determine the ambit of any right of appeal.
11. Section 61(5) of the Land Use Act confers no right of appeal in the present circumstances. The only right of appeal that Mrs Davenport has is pursuant to section 61(3A) of the Land Use Act. That section is in the following terms:
(3A) If a planning authority has amended a permit under section 43K or 56, any person referred to in section 43K(3), (4) or (5) or 56(3) or (4) may appeal to the Appeal Tribunal against the decision of the planning authority within 14 days after the day on which the notice was served under section 43K(3), (4) or (5) or 56(3) or (4)."
12. In its simplest terms the nature of the appeal right, conferred by operation of sections 56 and 61(3A) is very different to that conferred by Section 61(5). The latter confers a right of appeal against the issue of a permit upon a person who made a representation in relation to the application for that permit. The former permits a challenge only to the actual amendment. The Appeal Tribunal may not, as a matter of law, review the original permit.
13. All this was raised with Mrs Davenport and also a Ms L Faulkner who apparently has "joined" Ms Davenport in her appeal. The issue of joinder to an appeal is dealt with in Section 14 of the Resource Management and Planning Appeal Tribunal Act 1993. It is not necessary to consider this issue in any detail in the circumstances of this case other than to say it is not a matter for a party to determine whether or not another individual is joined or not to an appeal. But nothing turns on the matter.
14. Mrs Davenport's response to the Tribunal, in its entirety, is in the following terms:
"Further correspondence received from the Resource Management and Appeals Tribunal [sic] dated 27th May 2008 and following the adjournment from the directions hearing on the 26th May 2008 I advise that I wish to proceed on the following grounds;
That, pursuant to Section 61(5) Land Use Planning & Approvals Act 1993, as amended, and further to the advice offered at the end of amended Planning Permit, I, as an original representor who lodged a formal objection to the original Development Application DA 480-07, am now appealing against the amended undated Planning Permit issued by the Planning Authority and received on 2nd May 2008, and specifically the amended condition number 1.
GROUNDS: The amended section includes additional information plans by Proteck with [sic] apply to the whole of the development and I therefore object to the whole of the amended development on the grounds that the proposed development would be unacceptable, detrimental and unsustainable land-use planning."
15. It will be immediately apparent that none of this response is in any way responsive to the fundamental issue which needs to be determined now, that is, the nature and ambit of Mrs Davenport's appeal.
16. The Appeal Tribunal may only act in accordance with statute. In the context of this case that means that, notwithstanding the fact that Mrs Davenport purports to appeal pursuant to Section 61(5) of the Land Use Act, the appeal may only be brought pursuant to the provisions of Section 56(3). As such the Appeal Tribunal will hear and determine the matter on that basis, and that basis alone. In this case that means that the appeal will be confined to a consideration of the amendment to the original permit.
The appeal was permitted to proceed, but only under section 61(3A) of the Land Use Planning and Approvals Act 1993 and limited to consideration of the amendment to the original permit. The Tribunal declined to hear the appeal under section 61(5) as the appellant had purported.