1. Any application for costs, together with written submissions, be filed and served within 21 days. In the absence of any such application, each party bear their own costs.

Environment and planning - Planning appeal - Additional information - Whether request for additional information made in good faith and reasonable - Whether change of use affecting landslide risk.

Land Use Planning and Approvals Act 1993, ss 54, 61, and 62;

Tasmanian Civil and Administrative Tribunal Act 2020, Sch 2, Pt 8, cl 12

Mount Wellington Cableway Company Pty Ltd v Hobart City Council [2021] TASRMPAT 7

1. This is an appeal against the respondent's (the council's) request for additional information for the assessment of the appellant's change of use application under the Land Use Planning and Approvals Act 1993 (the Act).
2. The appellant lodged an application with the council to change the use of 9 James Avenue, Kingston Beach (the site) from residential to visitor accommodation (the proposal). The council then requested additional information from the appellant under s 54 of the Act. The appellant provided some additional information, which the council considered not to satisfactorily address its request with respect to the risk of landslide. The appellant appeals against the outstanding part of the council's request as it relates to information addressing the risk of landslide, including whether an emergency management plan is required.
3. I have concluded that the respondent council reasonably needs the information to assess the proposal.

1. The facts are agreed. I have set out below paragraphs [1] to [6] of the parties' statement of agreed facts and contentions:

1. The applicable Planning Scheme for the application is the Kingborough Interim Planning Scheme 2015. > > 2. The applicable Planning Scheme zones and codes: > > 10.0 General Residential Zone > > E3.0 Landslide Code (class: Low) > > E6.0 Parking and Access Code > > E13.0 Historic Heritage Code (Kingston Beach Precinct) > > 3. The applicable Use Class for the Proposal is 'Visitor Accommodation'. > > 4. The Proposal is for a change of use only. There are no proposed buildings and works. The proposal will utilise the existing building, access and parking. > > 5. Relevant to the use class Visitor Accommodation within the Landslide Code, which applies to the site and relevant to the Proposal: Visitor Accommodation is defined as a Vulnerable Use under Table E3.3.1 of the Landslide Code (refer to E3.3(b)(iv) within the table) > > There are no applicable exemptions in Clause E3.4 of the Landslide Code. > > 'Application Requirements' are listed in Clause E3.5 of the Landslide Code. > > ... > > Relevant to the Landslide Code (and the Proposal is for change of use only), it is agreed that: Within Clause E3.3.1, a suitably qualified person (landslide) means a suitably qualified person as follows: > > Within the code, the only relevant sections for assessment for this proposal are within Clause E3.6.2 'Vulnerable Use'. > > Within Clause E3.6.2: the Acceptable Solution of A1 is satisfied, because the vulnerable use is for visitor accommodation. > > as there is no Acceptable Solution provided for A2, the proposed change of use must satisfy the requirements of the Performance Criteria (P2). > > Within the Performance Criteria of P2, it is agreed that (a) is satisfied. > > (a) for any Landslide Hazard Area, a geotechnical engineer or an engineering geologist as specified in the Director of Building Control's determination: "Certificates of Specialists or Other Persons" that can complete a landslide risk assessment; or > > (b) for a Low Landslide Hazard Area, a civil engineer.

2. The additional information that the council seeks is described in Item 3 of the request for information dated 20 December 2024 as:

[a]n assessment by a suitably qualified person (landslide) demonstrating the proposal meets the requirements of Clause E3.6.2 (P2), including an emergency management plan, where recommended by the suitably qualified person.

1. The request for additional information relates to performance criterion P2 of cl E3.6.2 of the Landslip Code (the code) of the Kingborough Interim Planning Scheme 2025 (the scheme). Clause E3.6.2 reads:

(a) Vulnerable use, other than visitor accommodation, is only located on land in a Landslide Hazard Area in exceptional circumstances;

(b) If a vulnerable use is located in a Landslide Hazard Area, landslide hazard management measures reflect the risk arising from the landslide hazard and the characteristics, nature and scale of the use taking into consideration the specific circumstances of users of the site.

Vulnerable use is of an overriding benefit to the community, in terms of significant long term social or economic community benefits.

(a) No part of the vulnerable use is in a High Landslide Hazard Area;

(b) Landslide risk to occupants, staff, visitors and emergency personnel associated with the vulnerable use is either:

(ii) capable of feasible and effective treatment through hazard management measures, so as to be tolerable risk.

(c) Landslide risk to occupants, staff and visitors takes into consideration their specific circumstances including their ability to:

(i) protect themselves and defend property from landslide;

(iii) understand and respond to instructions in the event of a landslide; whilst minimising risk to emergency personnel.

1. Clause E3.5, titled 'Application Requirements', is also relevant. Clause E3.5.1(b) allows the council to require an applicant to provide a landslide risk management report "if considered necessary to determine compliance with the performance criteria".

1. Section 54 of the Act allows a planning authority to request additional information before it considers an application. Subsection (1) reads:

A planning authority that receives an application for a permit (other than a permit referred to in section 40T) may -

(a) if the permit sought is a discretionary permit, by notice in writing served on the applicant within the period of 21 days from the day on which it receives the application; or

(b) if the permit sought is not a discretionary permit, by notice in writing served on the applicant within the period of 14 days from the day on which it receives the application -

require the applicant to provide it with additional information before it considers the application.

1. Section 61(3) allows an applicant to appeal against a requirement for additional information.
2. The Tribunal's task on appeal is to determine whether the information requested is relevant to the assessment of the proposal and the request is reasonable: Mount Wellington Cableway Company Pty Ltd v Hobart City Council [2021] TASRMPAT 7 at [21]. In doing so, I need to objectively determine whether the council's request was made "in good faith" and whether the council should have been satisfied, acting reasonably, that it had sufficient material before it to assess and determine the application: Mount Wellington Cableway Company Pty Ltd at [22]. I must consider the scheme requirements to answer these questions.
3. Section 62(1)(b) of the Act addresses the orders that I may make on hearing the appeal. I may direct the appellant to provide the additional information sought by the council or direct the council to proceed on the information that the appellant has already supplied.

1. The appellant contends that he has submitted sufficient information to demonstrate that cl E3.6.2 P2 (b) and (c) are satisfied. He says that the scheme's requirements are not triggered because a mere change in use, without works, would not create any landslide risk. In his words, "[n]o change to risk, hazard or stability would result". It follows that I should direct the council to proceed on the information that the appellant has already supplied: s 62(1)(b).
2. The appellant relies on the objective of cl E3.6.2, which relevantly is to ensure that "vulnerable use, other than visitor accommodation, is only located on land in a Landslide Hazard Area in exceptional circumstances..." He points out that the council "must have assessed any landslide risk for the property in 2016 when it approved extensive renovations to the existing dwelling".
3. The council contends that, to demonstrate compliance, an assessment by a suitably qualified person against the requirements of P2 (b) and (c) is required, including an emergency management plan if recommended by that person. If I accept the council's contentions, I should direct the appellant to provide the additional information sought by the council: s 62(1)(b).

1. I reject the appellant's submissions. While the council's requirement may seem burdensome and bureaucratic at first blush, it is explained by a plain reading of cl E3.6.2 of the scheme having regard to its objective.
2. 'Acceptable risk' is defined in the scheme as "a risk society is prepared to accept as it is. That is, without management or treatment".
3. Underlying the appellant's case is his submission that "[f]or a risk to alter, some development or works would need to be undertaken". I reject that submission, substantially for the reasons advanced by the council.
4. While changing the use from residential to visitor accommodation would not alter the risk of a landslide occurring, it may alter the risks that a landslide poses. In the council's words:

[T]he change of use does change the risk profile including the consequence and level of risk, what is acceptable and what is required to manage in the event of a [landslide].

5. This approach is consistent with the reference to landslide risk being informed by "the characteristics, nature and scale of the use [and] taking into consideration the specific circumstances of users" in objective (b) of cl E3.6.2.
6. The reference to 'the specific circumstances of users' is instructive. Residential use is typically characterised by a distinct group of persons (often a family) living at the dwelling for a sustained period. Residents are likely to 'get to know' the dwelling and be aware of the risk of natural disasters and what can be done to mitigate risks.
7. In contrast, visitor accommodation is characterised by visitors staying at a dwelling for a short period of time. Visitors are less likely to be aware of the intricacies of the dwelling, such as the particular risks of bushfire, flooding, landslide, or house fire. They are less likely to have weighed these risks and developed plans for managing them.
8. The appellant's reliance on cl E3.6.2's objective is of little assistance. As the appellant correctly points out, visitor accommodation is classified as a 'vulnerable use' in cl E3.3.1. Clause E3.6.2's objective, set out above, evidences that concern about vulnerable uses being located on land within a 'landslide hazard area' does not extend to visitor accommodation. However, the objective does not address the differences in risk between residential use and visitor accommodation.
9. To my mind, performance criterion P2(c) in cl E3.6.2 is not limited to the risks of a landslide occurring. It considers, as I have endeavoured to explain above, landslide risks to occupants, staff, and visitors. Accordingly, the same property at the same location may have a different level of risk arising from landslide depending on whether it is a residential dwelling or visitor accommodation.
10. I accept the council's submission as to what cl E3.6.2 requires. To determine whether P2 is met, the council will need an assessment by a suitably qualified person and, where recommended, an emergency management plan. It follows that the council's request was made in good faith and that, without the information, the council could not be satisfied that it had sufficient material to assess and determine the application against the scheme's requirements in cl E3.6.2 P2. The appeal fails.
11. The presumption is that each party is to bear their own costs: Tasmanian Civil and Administrative Tribunal Act 2020, Sch 2, Pt 8, cl 12(1). I observe that neither party was represented by a legal practitioner. Nonetheless, I will afford the parties an opportunity to make any application for costs.

1. I make the following orders:
   1. The appellant provide the additional information requested by the respondent in Item 3 of the request for information dated 20 December 2024.
   2. Any application for costs, together with written submissions, be filed and served within 21 days. In the absence of any such application, each party bear their own costs.