Environment and planning - Planning appeal - Parties to proceedings - Whether interests affected - Whether not reasonable to expect representation to have been made - Application by incorporated association to join where members made representations

Tasmanian Civil and Administrative Tribunal Act 2020

Land Use Planning and Approvals Act 1993

Resource Management and Planning Tribunal Act 1993

Action View Tas Pty Ltd, Delta Pi Pi Pty Ltd and Mayfair Group Holdings Pty Ltd v Clarence City Council and Hazel Bros. Group Pty Ltd [2020] TASRMPAT 20;

Bellerive Yacht Club Inc v Clarence City Council [2024] TASCAT 191;

Westaway v Mosman Municipal Council [2024] NSWLEC 1542;

Tasmanian Conservation Trust Inc v Maryann's Island Pty Ltd [2026] TASSC 1;

ABX Group Limited v Meander Valley Council and Wasserfall v Meander Valley Council [2025] TASCAT 150

Third Respondent: R Dobie - Tasmanian Heritage Council

Applicant to Join: B Corr - Hobart Not Highrise Inc.

1. The appellant has appealed a decision by the Hobart City Council to grant a permit for the development of a hotel at Salamanca Place in Hobart. The development application was made by the second respondent.
2. An application to be joined as a party has been filed by Hobart Not Highrise Inc. The application describes the person seeking to be joined as Brian Corr, President, Hobart Not Highrise Inc. At a preliminary conference before a case officer of the Tribunal Mr Corr confirmed that the entity seeking to join the appeal is Hobart Not Highrise Inc, not Mr Corr himself.
3. The second respondent opposes the application. The appellant, the Council and the Tasmanian Heritage Council have either taken a neutral position or no position in respect to the application to join.

1. Provisions for the joining of parties to proceedings in an appeal in the Resource and Planning stream of the Tribunal are set out in cl 7 of Pt 8 of Sch 2 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act). Clause 7(3) provides a power to join a person whose interests are affected by the decision which has been appealed:

(3) If an appeal has been instituted by a person, any other person whose interests are affected by the decision which is appealed against may, subject to subclauses (4) and (5) , apply in writing to the Tribunal to be made a party to the appeal and the Tribunal may, by order, make the person a party to the appeal.

2. Where an appeal is against a decision in respect of the granting of a discretionary permit under s 57 of the Land Use Planning and Approvals Act 1993 (LUPAA), as is the case in this appeal, cl 7(4)(a) limits the power:

(4) The Tribunal may not, under subclause (3), make a person a party to an appeal against a decision - > > (a) in respect of the granting of a permit under section 57 of the Land Use Planning and Approvals Act 1993 unless - > > (i) the person made a representation under section 57(5) of that Act in respect of the application for the permit; or > > (ii) the Tribunal considers that the person has a proper interest in the subject matter of the appeal and that it is not reasonable to expect the person to have made a representation in respect of the application for the permit; or...

3. The use of 'may' in cl 7(4) is to be construed as discretionary: Acts Interpretation Act 1931 s 10A(1)(c). This indicates that a discretion to join exists in the clause even if any or all of the elements of cl 7(4)(a) are not met. That discretion should be exercised having regard to the policy apparent in cl 7 that the making or not making of a representation is expressly to be considered on an application to join, and that the failure to make a representation is a basis to refuse an application to join.
4. The reference to a 'person' in cl 7 includes a body corporate, such as an incorporated association: Acts Interpretation Act s 41. The references to 'a representation' in cl 7(4)(a)(i) and (ii) are to a representation made to a council during the period of public notification of a discretionary application for a planning permit as provided in s 57 of LUPA.
5. Clause 7(3) requires that the applicant to join be a person whose interests are affected. Clause 7(4) requires that the applicant has either made a representation or in the alternative has a proper interest in the subject matter of the appeal and that it is not reasonable to expect the person to have made a representation. In Action View Tas Pty Ltd, Delta Pi Pi Pty Ltd and Mayfair Group Holdings Pty Ltd v Clarence City Council and Hazel Bros. Group Pty Ltd [2020] TASRMPAT 20 at [12] the former Resource Management and Planning Appeal Tribunal (RMPAT) said the following concerning the concepts of 'interests are affected' and 'proper interest' in respect to a materially identical test set out in s 14 of the now repealed Resource Management and Planning Tribunal Act 1993 [footnoted citations inserted]:

12. The Tribunal has considered the meaning of interests affected in s14(2) and proper interest in s14(3)(a)(ii) in a number of decisions. Principles that may be distilled from those decisions include the following: > > a) By requiring the existence of a proper interest in the subject matter of the appeal s14(3)(a)(ii) limits the class of persons granted a right of appeal rather than enlarging it: D Armstrong obo M Wallace v Hobart City Council [2007] TASRMPAT 227 at [10]; > > b) A proper interest is something that goes beyond mere general interest in the subject matter and is akin to a special interest as discussed in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Limited [1981] HCA 50; [1981] 149 CLR 27. Something more than a mere general interest in the subject matter or a belief that a particular law should be observed is required for a proper interest to be found: R Johnston and B Bird v Launceston City Council and D & K Thurley [2020] TASRMPAT 4 at [6]; > > c) What constitutes a proper interest is determined by the nature and subject matter of the appeal and the interest of the applicant to be joined must be one which may be affected by that subject matter such that they ought be afforded a right to be heard M Drury v Clarence City Council [2020] TASRMPAT 15 at [7]; > > d) The interest must be one which could be affected by the permit being acted upon or the permit not being able to be acted upon M Drury v Clarence City Council at [8]; > > e) Consideration of whether a person's interests are affected is not limited to the issues raised by the grounds of appeal, but extends to the matters relating to the decision being appealed against and the outcomes which are open on an appeal M Drury v Clarence City Council; > > f) 'Affected' in s14(2) is not limited to adversely affected and a person may have a proper interest in preserving the status quo or achieving a positive effect on its interests Director of Housing v Glenorchy City Council [2007] RMPAT 197 at [8]. > > This list is not intended to be exhaustive.

6. Consideration of an application to join is a two-stage process of firstly establishing whether the requirements for standing in cl 7(3) and (4) are met, and then determining whether the discretion to join the applicant should be exercised, as explained in Bellerive Yacht Club Inc v Clarence City Council [2024] TASCAT 191 at [19]:

19. Clause 7(3) provides that the Tribunal may join a party. Section 10A of the Acts Interpretation Act 1931 provides that the word 'may' is to be construed as being discretionary or enabling, as the context requires. Joinder in cl 7(3) therefore involves a two stage process of first establishing standing to join and then a determination of whether or not the discretion to join should be exercised: see Re: reference no. 1359/1999 by State of Tasmania v Luckhurst [2000] TASSC 176 [16] in respect to the approach to a power to join in s 45(3) of the Workers Rehabilitation and Compensation Act 1988 similar in effect to cl 7(3), and also Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 [42]-[46].

7. The exercise of the discretion may involve balancing objectives of efficiency with the desirability of having all relevant matters before the Tribunal for consideration: Westaway v Mosman Municipal Council [2024] NSWLEC 1542 [15].

1. An association extract for Hobart Not Highrise Inc obtained from the Consumer, Building, and Occupational Services (CBOS) Registration Services and provided by the second respondent confirms that Hobart Not Highrise Inc is an association incorporated under the Associations Incorporations Act 1964. It shows that Hobart Not Highrise Inc was incorporated in 2017 and remains incorporated. Pursuant to s 11 of the Associations Incorporations Act an incorporated association is a body corporate, has a discreet legal identity and is capable of engaging in legal proceedings in its own right.
2. The form of the application to join requires an applicant to set out reasons why the applicant seeks to become a party. The reasons set out in the application were:

There were about 200 representations made by Hobart Not Highrise Inc members, making the following points:

I oppose the proposed development at 41 Salamanca Place, Ref PLN-HOB-2025-0177.

The proposal will exceed the 'deemed-to-comply' height of 12m with a maximum height of 17m. That's 42% higher, a significant figure. The height will rise above the general street wall along Salamanca Place. The proposal will exceed the height of 2 Montpelier and 39 Salamanca Place and the area of the new facade will be greater than that of 2 Montpelier by more than a factor of 2.

This proposal will be too prominent in terms of contrast with neighbouring buildings by being significantly higher, and having a larger apparent size when viewed in street elevation. The proposal, given its bulk and appearance, will adversely affect the heritage values of nearby culturally significant places.

The proposal is not in keeping with the heritage and urban form requirements of the planning scheme. The proposal will not complement, or contribute, to the character and appearance of adjacent places of cultural significance and the historic character of Sullivan's Cove generally. It will overwhelm the presentation of the significant buildings in the broader area.

The traditional urban pattern of Sullivan's Cove will not be preserved.

Elected members were not made aware of Justice Wood's 'Lenna' decision as it related to height and bulk exceeding the Planning Scheme limits.

1. Mr Corr is the President of Hobart Not Highrise Inc. In support of the application to join he advised that Hobart Not Highrise Inc became aware of the proposed development as a result of an email from a member and a newspaper article. Mr Corr apparently obtained a copy of the development application as he emailed the newspaper article, the development application and images from the application to the Hobart Not Highrise Inc Committee seeking permission to oppose the development. I infer that Mr Corr received that permission as he then set up a page on the Hobart Not Highrise Inc website with a proforma representation for persons to complete and submit to the Council. The proforma representation set out eight grounds opposing the proposal and urged the council to refuse a permit. The grounds were the same as the grounds set out in the application to join. Hobart Not Highrise Inc sent out emails, I assume to members, suggesting that representations be made opposing the proposal. It also sent an email reminding and thanking members on the last day of the period for representations.
2. The Council provided information in respect to the breakdown of representations received by it. They included 70 on the Hobart Not Highrise Inc proforma without additional comments and 104 with additional comments. I infer from the grounds in the application that those 174 representations were by members of Hobart Not Highrise Inc. Mr Corr advised that Hobart Not Highrise Inc did not see any of the representations submitted to the Council.
3. The Council provided a table of representations. The table includes a representation by Mr Corr. It does not include any representation made by Hobart Not Highrise Inc. I am satisfied that Hobart Not Highrise Inc did not make a representation for the purposes of s 57 of LUPA in its own right.
4. The relevant considerations in this matter therefore are:

(a) whether Hobart Not Highrise Inc's interests are affected by the decision to grant a permit;

(b) whether Hobart Not Highrise Inc has a proper interest in the subject matter of the appeal;

(c) whether it was not reasonable to expect Hobart Not Highrise Inc to have made a representation; and

(d) if each of those questions are answered in the affirmative, should the discretion to join Hobart Not Highrise Inc be exercised, and if either or both of (b) and (c) are answered in the negative, whether the discretion should nonetheless still be exercised.

1. Hobart Not Highrise Inc did not made any submission expressly addressing its interests being affected or it having a proper interest. The second respondent did not make any submission in respect to those matters, other than correctly asserting that the Tribunal needs to be satisfied as to those matters on the material before it.
2. The material provided by Hobart Not Highrise Inc gives no explanation of the purpose or function of Hobart Not Highrise Inc, but it invites certain inferences to be drawn. They are that Hobart Not Highrise Inc is an association within an interest in development applications, and in particular in respect to developments that have some significant component of height, and the enforcement of planning controls. I infer this from material provided by Mr Corr stating that he sought permission from the Committee of Hobart Not Highrise Inc to oppose the development, from the disseminating of the proforma representation formulated by Hobart Not Highrise Inc, from the particulars set out in the proforma representation, and from an email sent by Hobart Not Highrise Inc to its members that made specific reference to the proposal being too high and being in excess of the height permitted by the applicable planning scheme.
3. Those inferences are reinforced by the CBOS association extract, which states that the principal activity of the association is:

To protect Hobart's skyline, prevent oversize buildings, review the current planning rules, leading to an electors poll.

1. I also infer that Hobart Not Highrise Inc has at least 174 members, that being the number of representations submitted on its proforma, and from their membership that they share an interest in development applications, particularly those involving height, and a common interest in opposing the proposed development.
2. In Tasmanian Conservation Trust Inc v Maryann's Island Pty Ltd [2026] TASSC 1 at [27] Brett J observed the following:

27. There is no question that a desire to prevent development cannot alone amount to a special interest sufficient to confer standing. It is also clear that the plaintiff's claim to standing is significantly impacted by its lack of interest and failure to involve itself in the original planning process. However, there is no question that enforcement of planning controls can constitute a public duty sufficient to give rise to a special interest and hence standing in an appropriate case.

3. In the absence of any submissions to the contrary, I am satisfied from the brief material provided by Mr Corr that Hobart Not Highrise Inc has an interest in the granting of the planning permit for the proposal over and above that of the public generally, as demonstrated by its actions in facilitating 174 out of a total of 209 representations.
4. The second respondent contends that Hobart Not Highrise Inc does not meet the requirement of it being not reasonable to expect Hobart Not Highrise Inc to have made a representation. The second respondent contends that there is no reasonable excuse for the applicant's failure to do so.
5. The submissions by Hobart Not Highrise Inc focussed on its contention that it had an interest in the development. They did not address the question of why it did not actually make a representation in its own right. It provided no explanation for not doing so. I am unable to determine whether not making a representation was the result of a decision of the President or by the committee of the association, or as a result of an oversight or a mistake, or as a result of any particular circumstance that affected its ability to do so. I note that Hobart Not Highrise Inc has been joined as a party in at least one previous planning appeal that resulted in decisions published in 2022, and so may be taken to have experience in joining an appeal.
6. The submissions of the second respondent usefully included an outline of a number of cases where the Tribunal and RMPAT considered different factual scenarios arising on applications to join. Each case turned on its own facts. The circumstances most similar to this case occurred in ABx Group Limited v Meander Valley Council and Wasserfall v Meander Valley Council [2025] TASCAT 150. In that case an incorporated association was joined as a party to an appeal where its members had made representations but the association had not. The incorporated association did not exist during the relevant period for representations, and for reasons explained by the Tribunal at [27] may not have had standing to make a representation as an association before incorporation. The Tribunal found that it was not reasonable to expect the association to have made a representation. That can be contrasted with this circumstance where the association was in existence as a corporation with a legal identity and capacity to bring legal proceedings at the relevant time.
7. It is apparent that the President and the Committee of Hobart Not Highrise Inc were aware of the proposal and the right to make a representation and the period for the making of representations. At least 174 of its members were also so aware. The association prepared a formal representation for other persons to adopt and submit. Mr Corr made a representation. 173 other members of the association made representations. Any of those persons might apply to join the appeal. Hobart Not Highrise Inc has not contended that any or all of those persons would not satisfy the requirements of cl 7. There is no explanation why Mr Corr seeks to act as the agent of Hobart Not Highrise Inc for the purpose of joinder rather than doing so personally. It may be to facilitate funding or for protection against liability or to bring together a group of persons for purposes of efficiency, however that is mere speculation.
8. Applying the somewhat awkward phrasing of cl 7(4)(a)(ii), I do not consider that it is not reasonable to expect Hobart Not Highrise Inc to have made a representation in respect of the application for the permit. Hobart Not Highrise Inc has not met the requirements of cl 7(4)(a).
9. While I have determined that Hobart Not Highrise Inc has a relevant proper interest, there is nothing to identify any particular circumstance directly affecting Hobart Not Highrise Inc beyond its corporate purpose, such as, for example, an affected property right, that might justify exercising the discretion notwithstanding its failure to make a representation.
10. The appellant has filed amended grounds of appeal that appear to cover the range of height, bulk and heritage issues raised in the proforma representation published by Hobart Not Highrise Inc insofar as the issues arise under the Sullivans Cove Planning Scheme 1997. No issue has been identified that might not be advanced or prosecuted on the appeal if Hobart Not Highrise Inc is not joined. Nor has any reason been advanced that joining Hobart Not Highrise Inc would assist the Tribunal to reach the correct and preferrable decision on the appeal.
11. In short, no issue arising outside those specifically raised by cl 7 that might support joining Hobart Not Highrise Inc has been raised.

1. I am therefore satisfied that Hobart Not Highrise Inc does not meet the requirements of cl 7(4)(a)(ii) in order to establish standing. Insofar as cl 7(4) provides a discretion notwithstanding that, I am not persuaded by the material and submissions provided by Hobart Not Highrise Inc that it should be exercised in favour of joining Hobart Not Highrise Inc to the appeal.
2. Accordingly:
   1. The application by Hobart Not Highrise Inc to join the appeal is refused.