3. Directions (iii) and (iv) made on 26 February 2026 are vacated.

4. Within 7 days the parties are to file an agreed timetable for the delivery of statements of evidence including statements in reply, and in default of agreement then within 10 days each party is to file and serve a proposed timetable with brief submissions in support.

5. There is liberty to apply in respect to direction 4.

Environment and planning - Planning appeal - Application of leave to add a ground of appeal - Considerations relevant to exercise of discretion

Land Use Planning and Approvals Act 1993

Tasmanian Civil and Administrative Tribunal Act 2020

Aon Risk Services Australia v Australian National University [2009] HCA 27;

Claude Neon v City of Marion (1983) 32 SASR 481;

Re Carmel Elizabeth McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Tomaszewski v Hobart City Council (No.2) [2021] TASSC 15;

Sandy Bay Developments v Loring [1991] TASSC 34;

R Clemens & P Saggers v Latrobe Council & Optus Mobile [2010] TASRMPAT 206;

TriCare (Bayview Pty Ltd) v Council of the City of Gold Coast [2022] QPEC 31;

Shoobridge v Tasman Council [2025] TASCAT 23;

Chau Nominees Pty Ltd v Hobart City Council [2022] TASCAT 79

Third Respondent: R Dobie - Tasmanian Heritage Council

1. The appellant has applied to add a fifth ground of appeal. The application is opposed by the second respondent, the Behrakis Group. The first respondent does not oppose the amendment. The third respondent made no submissions.
2. Both the appellant and the second respondent have made comprehensive submissions, for which I am grateful.
3. The proposed new ground is:

The application does not satisfy the principles set out in Clause 26.2 of Schedule 5 of the Scheme because the development includes on-site vehicle parking when there is no requirement for on-site vehicle parking for this development under the Scheme and the incorporation of on-site vehicle parking has directed the design of the development and will have a detrimental effect on the form and character of Sullivans Cove and in consequence of the inclusion of on-site car parking the development necessitates the exercise of a discretion under the Scheme in relation to height which is not in keeping with the planning principles for the Cove.

The reference to the scheme in the ground is to the Sullivans Cove Planning Scheme 1997 (the Scheme).

1. The has previously amended his grounds of appeal on two occasions, a matter that the second respondent has raised in its submissions.
2. The procedural history of the appeal includes the following:

(a) On 28 November 2025 the Council granted a planning permit in respect to a development application made by the second respondent for the extension of a hotel at Salamanca Place.

(b) On 12 December 2025 the appellant filed a notice of appeal with the single ground that the proposal "doesn't confirm [sic] with the planning scheme".

(c) At a preliminary conference on 16 January 2026 the appellant was directed to file revised grounds of appeal. By that time the appellant had retained legal representation.

(d) At the preliminary conference directions were also made establishing a timetable for the delivery of evidence.

(e) On 27 January 2026 revised grounds of appeal setting out three grounds were filed by the appellant.

(f) On 2 February 2026 the appellant applied to add a fourth ground of appeal with the consent of the other parties.

(g) On 20 March 2026 the appellant advised the other parties of its intention to apply to amend the grounds of appeal to add the ground which is the subject of this application and sought their consent, unsuccessfully in respect to the second respondent.

(h) On 24 March 2026 the appellant applied to amend the grounds of appeal to add the fifth ground.

1. The second respondent points to the lack of detail as to the reasons for delay in the application. The second respondent points to the history of amendments and contends that the appellant had ample opportunity to incorporate the ground, and says that at each stage that the grounds of appeal were amended the appellant chose not to introduce the new ground. The second respondent says that making further amendments in a piece meal fashion is inconsistent with the principles in Aon Risk Services Australia v Australian National University [2009] HCA 27 and undermines the efficient and fair conduct of the proceedings.
2. The reasons for the ground not having been included at an earlier stage were addressed by the applicant in reply. The timing of the application to amend is explained by the appellant on the basis that his planning expert raised the issue addressed by the ground on 6 March 2026 and then particularised it in an email on 13 March 2026. Following a conference with counsel on 20 March 2026 the appellant provided instructions to proceed with an application to amend. I have not been provided with any detail as to when the expert was retained or whether there was opportunity for the issue to have been identified earlier, but I am satisfied that the appellant acted with appropriate diligence once the issue was raised.
3. The second respondent challenges the merits of the proposed ground. It contends that the principles applying to the assessment of traffic, access and parking in cl 26.2 of the Scheme guide future use and development and underlie the actual development controls, but do not constitute standards against which a development is to be assessed, and that therefore the ground of appeal is misconceived.
4. The second respondent also contends that it will suffer prejudice as the amendment will likely necessitate variation of the timetable for the provision of evidence. It may be required to engage a further expert to address parking demand, access and traffic impacts, imposing additional costs, delay and complexity.

1. Appeals against planning decisions are made pursuant to s 61 of the Land Use Planning and Approvals Act 1993. That Act does not expressly require that grounds of appeal be identified or particularised.
2. A planning appeal is conducted as a hearing de novo: s 75(2) Tasmanian Civil and Administrative Tribunal Act 2020. There is no formal onus of proof in a planning appeal: see for example Claude Neon v City of Marion (1983) 32 SASR 481 at 490 and Re Carmel Elizabeth McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 356. The duty of the Tribunal is to make the correct or preferable decision: Tomaszewski v Hobart City Council (No.2) [2021] TASSC 15 at [16] and [17].
3. Subject to any legislative prescription the Tribunal determines its own practice and procedure, including by way of practice directions: s 83 and s 93 of the Tasmanian Civil and Administrative Tribunal Act. The Tribunal is bound to provide parties with procedural fairness: s 10 Tasmanian Civil and Administrative Tribunal Act.
4. Having regard to all those matters, the practice of the Tribunal is to require grounds of appeal to be provided by an appellant, and to require that the grounds provide sufficient particulars: see RPS Practice Direction 1. Identifying the grounds of appeal narrows the issues for consideration by the Tribunal and is procedurally fair in that it enables the other parties to identify, understand and meet the appellant's case.
5. Grounds of appeal should identify the real issues in dispute: TriCare (Bayview Pty Ltd) v Council of the City of Gold Coast [2022] QPEC 31 at [145]- [147]. An appellant may be restricted to their grounds of appeal and the Tribunal is not obligated to go outside the issues raised by the parties, but the Tribunal is not limited to consideration of the grounds of appeal: Sandy Bay Developments v Loring [1991] TASSC 34 and R Clemens & P Saggers v Latrobe Council & Optus Mobile [2010] TASRMPAT 206 at [15]- [16].
6. In Shoobridge v Tasman Council [2025] TASCAT 23 at [31]- [33] I summarised relevant principles in respect to an application to amend grounds of appeal:

31. In ACEN Robbins Island Pty Ltd v Circular Head Council & Ranch Six Pty Ltd [2024] TASCAT 23 at [16] and [18] I applied the decision of Walton J in Rudenko v Rudenko & Sons Pty Ltd [2019] NSWSC 532 at [20] where his Honour said: > > 20. In considering an application for leave to amend Courts have been guided by the following principles: > > (1) the object of the court is to ensure that a decision can be made on the real matters in controversy: Unilever Australia Ltd v Revlon Australia Pty Ltd (No 7) [2015] FCA 137 at [44]; > > (2) the "starting point [is] that all amendments should be made and allowed that are necessary to ensure the real questions in controversy between the parties are decided": Oswal v Apache Corporation (No 3) [2014] FCA 835 ("Oswal") at [5]; > > (3) Courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings: Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 ("Thomson") at [13] (see also Oswal at [7]). Pleadings are "not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation": Thomson at [13]. > > (4) leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs: Caason Investments Pty Ltd v Cao (2015) 328 ALR 396; [2015] FCAFC 94 at [21]. > > 32. In respect to the fourth point, the High Court made it clear in Aon Risk Services Australia v Australian National University [2009] HCA 27 that there is not an unlimited right to amend, that an order for costs may be insufficient to cure prejudice and that case management may prevail over a presumed right to amend. That case relied on certain rules in the ACT Court Procedure Rules 2006 which do not apply to the Tribunal, but which have some thematic compatibility with the objectives in s 10 of the TASCAT Act. > > 33. In Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 at [127] Gleeson J summarised the principles and considerations from Aon Risk Services Australia v Australian National University and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 relevant to the granting of leave to amend: > > (1) The nature and importance of the amendment to the party applying for it. > > (2) The extent of the delay and the costs associated with the amendment. > > (3) The prejudice that might be assumed to follow from the amendment, and that which is shown. > > (4) The explanation for any delay in applying for that leave. > > (5) The parties' choices to date in the litigation and the consequences of those choices. > > (6) The detriment to other litigants in the Court. > > (7) Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

In that case I refused an application to amend in the context of the application being made two weeks prior to an established hearing date, after the exchange of evidence, and in circumstances where further evidence would have been necessary and the hearing would have had to be adjourned.

1. The proposed ground will add to the matters in issue but will not change the general character of the appeal. I expect that the parties are advanced in the preparation of their cases, but evidence has not yet been exchanged. A hearing date has not been set. There will be no detriment to other litigants.
2. The application has taken up three weeks, but the parties may need to look to additional experts, which might add to the delay in resolution of the appeal. It is likely that the timetable for delivery of evidence will need to be amended, but that is unlikely to be by a period that is significant in the overall appeal. Prejudice to the second respondent may be ameliorated by varying the timetable. On balance, the issue of delay is minor.
3. The second respondent may be required to obtain expert opinion beyond that which it initially contemplated, but that will be a forensic decision made by it in the context of its submissions that the principles raised in the proposed ground do not give rise to a discretion.
4. Neither party has raised any authority directly determinative of the issues raised in the proposed ground. The issues raised will require consideration and I am not able to determine at this stage that the ground will inevitably fail such that the appellant should not be permitted to advance the ground at a hearing: Chau Nominees Pty Ltd v Hobart City Council [2022] TASCAT 79.
5. Given the relatively early stage of the proceedings, before evidence has been exchanged and before the matter has been listed for hearing, I am satisfied that the issue raised by the ground is one which ought be properly ventilated at hearing and that the appellant should have leave to amend to add the ground. I will make directions to reflect the anticipated effect on the existing timetable.

1. Accordingly, the following directions are made:
   1. The appellant has leave to amend the grounds of appeal to add the ground set out in the applicant's application made by email dated 24 March 2026.
   2. The appellant is to file and serve consolidated grounds of appeal within 7 days.
   3. Directions (iii) and (iv) made on 26 February 2026 are vacated.
   4. Within 7 days the parties are to file an agreed timetable for the delivery of statements of evidence including statements in reply, and in default of agreement then within 10 days of these directions each party is to file and serve a proposed timetable with brief submissions in support.
   5. There is liberty to apply in respect to direction 4.