Stewart Family Tasmanian Investments Pty Ltd (Second Respondent)

1. Development application DA-2024-245 is amended by substituting the plans in the application with the plans in Attachment A to the application dated 24 June 2025 filed by Page Seager on behalf of Stewart Family Tasmanian Investments Pty Ltd.

2. The parties are to jointly file agreed conditions for a permit by 19 January 2026.

3. If the parties are unable to agree conditions in accordance with (1) then by 19 January 2026 the Council is to file and serve proposed conditions and the appellants and the second respondent are to each file and serve any submissions in respect to the proposed conditions within 7 days following filing and service of the proposed conditions.

4. There is liberty to apply in respect to this timetable.

Resource and planning - Planning appeal - Application to amend development application - Whether the amendment would result in something impermissibly different to that which was applied for - Former aged care facility to be repurposed and developed for multiple residential use - Residential density for multiple dwellings - Site coverage

Land Use Planning and Approvals Act 1993;

Tasmanian Civil and Administrative Tribunal Act 2000

Chau Nominees Pty Ltd v Hobart City Council (No.2) [2024] TASCAT 7;

Addicoat v Fox (No.2) [1979] VicRp 39; [1979] VR 374;

St Helens Area Landcare and Coast Care Group Inc v Break O'Day Council [2007] TASSC 15;

Kenfrost (1987) Pty Ltd v Cairns Regional Council & Ors [2022] QPEC 48;

Tomaszewski v Hobart City Council [2020] TASSC 48;

Newkrop Pty Ltd v Sunshine Coast Regional Council & Anor [2022] QPEC 41;

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;

M Drury v Hobart City Council & Ors [2016] TASRMPAT 18;

T Pain v Clarence City Council [2021] TASRMPAT 28

Tomaszewski & R Heath v Hobart City Council and Willar Pty Ltd & Anor [2020] TASRMPAT;

Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd [2021] TASFC 12;

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41;

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;

The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35;

Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42

Second Respondent: A Spence SC/V Lightfoot - Page Seager

1. The appellants have appealed a decision by the Kingborough Council to grant a permit for a development application made by the second respondent. The proposal is for multiple dwellings at Grange Avenue, Taroona on the site of a former 105 bed aged care facility.
2. The site has an overall area of 10,494m² and has been vacant for four years. The proposal is for the consolidation of existing titles, change of use, partial demolition and refurbishment of existing buildings for the creation of multiple dwellings and associated works.
3. The development application as lodged with the Council included plans depicting 13 multiple dwellings (the development application plans).
4. After the development application had been lodged with the Council the second respondent provided a revised set of plans (the approved plans) showing 15 dwellings. The differences between the application plans and the approved plans included converting a proposed gym to a dwelling, retaining an additional existing building and converting it to a dwelling and adding additional access and provision for additional parking.
5. Section 57(3) of the Land Use Planning and Approvals Act 1993 (LUPAA) requires that notice be given of a development application. The notice as given by the Council described a change of use to 15 multiple dwellings. Section 57(4) of LUPAA requires that a notice under s 57(3) must identify a place where a copy of the application and all plans and other documents submitted with the application are available for inspection during the period for which representations were able to be made in respect to the application pursuant to s 57(5). The plans made available for inspection during the relevant period were the approved plans.
6. The permit issued by the Council included 15 multiple dwellings, describing what was allowed as:

Consolidation of existing titles, partial demolition and refurbishment of buildings, change of use to 15 multiple dwellings and associated works.

7. The permit was issued subject to conditions. Condition 1 of the permit requires that amended plans be submitted and approved by the Council's Manager Development Services. Those plans were required to be generally in accordance with the approved plans, but showing certain specified minor modifications. The condition provided that except as otherwise required by the permit the use and development of the land must be substantially in accordance with the approved plans.
8. Following the institution of the appeal and prior to the hearing the second respondent sought to further amend the development application. That application was dealt with as part of the hearing.

Application to amend the development application

1. The second respondent applied pursuant to cl 9(7) of Pt 8 of Sch 2 of the Tasmanian Civil and Administrative Tribunal Act 2000 (the TASCAT Act) to amend the proposal by substituting the approved plans with revised plans (the revised plans).
2. While LUPAA provides a power for a planning authority to require additional information in respect to a development application, there is no express provision for amendment of an application before the institution of an appeal. The permit had the effect of an amendment in that the conditions required that the development comply with the approved plans rather than the application plans, but the development application before the Tribunal is that which was filed, including the application plans. The application to amend is properly one seeking substitution of the revised plans for the application plans, rather than for the approved plans, and it is the variation between the application plans and the revised plans that is to be considered.
3. The changes between the application plans and the revised plans are fairly extensive, but largely relate to matters of internal configuration, private open space and fencing. The variation of greatest import is the change from 13 multiple dwellings to 15 multiple dwellings. The revised plans contain the two additional dwellings within existing buildings on the site. One of those buildings was originally proposed as a gym in the application plans and the other building was to be demolished. It was on the basis of the increase from 13 to 15 dwellings that the appellants opposed the application to amend. It is therefore not necessary to detail the other proposed changes.
4. Clause 9(7) provides:

(7) If a person appeals, or makes an application, to the Tribunal and it appears to the Tribunal that - > > (a) the appeal or application relates to an application (the relevant application) made, by one party to the proceedings in relation to the appeal or application, to another party to the proceedings; and > > (b) the appeal or application could be resolved in a manner that is fair to all parties if certain modifications to the relevant application were made; and > > (c) it would be conducive to the expeditious administration of justice if the powers conferred by this clause were exercised - > > the Tribunal may, by order, amend the relevant application accordingly.

5. Clause 9(7)(a) and (c) may be dealt with briefly. Clause 9(7)(a) is clearly satisfied, as the appeal relates to a development application submitted by the appellant to the Council. The appellant did not contend that cl 9(7)(c) was not satisfied. It appears to us that by amending the development application to reflect more closely what was approved by the Council and what has therefore, in a practical sense, been brought before the Tribunal is conducive to the expeditious administration of justice. Further, the proposed amendments, insofar as they relate to private open space, address at least in part one of the grounds of appeal: Chau Nominees Pty Ltd v Hobart City Council (No.2) [2024] TASCAT 7 at 12.
6. The issue between the parties arises in connection with cl 9(7)(b), and the extent of the modifications.
7. The appellants contend that the change from 13 self-contained accommodation units to 15 is an impermissible intensification of the use originally contemplated by the application. They say that that intensification has consequences relating to internal and external impacts, such as the increased density of the development, greater population presence and greater trip generation to and from the site.
8. The issue is whether the changes would result in the grant of a permit for something so different from that applied for as to be impermissible. In considering this in the context of conditions in a permit in Addicoat v Fox (No.2) [1979] VicRp 39; [1979] VR 374 at 363 Brooking J described issue in the following terms:

In my opinion, a power to grant a permit subject to conditions authorises the responsible authority to grant a permit for a use or development which differs from the use or development the subject of the application for a permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly, that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit. This is plainly a matter of degree and indeed is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit is different as opposed to a modified permit.

9. In St Helens Area Landcare and Coastal Group Inc v Break O'Day Council [2007] TASSC 15 at [19] Crawford J discussed the extent of change in terms of whether it amounted to a significant difference and said:

A significant difference will not be one that is merely a substantial difference. It will be a difference which, in the light of the provisions for public notification and representations, and as a matter of judgment, is of such substance, consequence or significance as to call for fresh notification... significance is not an abstract concept. It is a matter for judgment in the context of circumstances.

10. In that case at [17] his Honour said that whether the differences are significant will depend on the circumstances of the particular case. He observed that differences may be significant having regard to the interests of the development, the interests of other parties and the interests of the public.
11. In considering a statutory test of substantial difference in Kenfrost (1987) Pty Ltd v Cairns Regional Council & Ors [2022] QPEC 48 Fantin DCJ observed that the assessment includes a qualitative evaluation. At [12] his Honour said:

"Substantially different development" is not defined. The applicable principles are well established. The assessment of whether a change would or would not have that effect is a comparative task that involves evaluation which can be both quantitative and qualitative as may be relevant in the circumstances. Matters of scale and degree are often involved and the particular context and circumstances of the case are important. Whether a proposed change would result in substantially different development is to be considered broadly and fairly, rather than pedantically. The individual circumstances of the development in the context of the change proposed, must be considered.

12. In Newkrop Pty Ltd v Sunshine Coast Regional Council & Anor [2022] QPEC 41 at [10] Cash DCJ said:

The following principles are also to be borne in mind. Whether or not a change is a minor change is a question to be considered broadly and fairly. The proposed change should be considered from a qualitative as well as quantitative perspective. It is the result of the change, rather than the significance or importance of the change (which may be different matters), which is the focus of the courts consideration. Ultimately, it is a matter of fact and degree whether the proposed change is a minor change. The appellant bears the onus of persuading the court whether the changes are minor changes. (Citations omitted).

13. The proposed additional dwellings will not change the footprint of the development. They will not trigger assessment against any additional standards or discretions in the applicable planning scheme.
14. The statutory notification and exhibition of the plans included the approved plans showing the same 15 residential dwellings as the proposed plans. It is unlikely that any member of the public who made a representation in respect to the proposal would have chosen not to do so if the development had been exhibited as the 13 residence development in the application plans: Tomaszewski v Hobart City Council [2020] TASSC 48 [33]. Conversely, It is unlikely that any person who actually made a representation opposing the proposal would have been swayed in that decision by the modest increase in the potential number of residents or trip generation arising from 15 instead of 13 dwellings, or that any such person would have determined whether or not to lodge an appeal on that basis.
15. We do not consider that the extent of change is such that the proposal as described in the revised plans is significantly different from that in the application plans so as to warrant refusing the application to amend. It appears to us that the appeal could be resolved in a manner that is fair to all parties if the modifications to the relevant application are made, and that cl 9(7)(b) is satisfied. We will make an order substituting the plans in the development application with the revised plans.

1. The development is required and fails to demonstrate compliance with cl.12.4.9 P1 of the Kingborough Interim Planning Scheme 2015 because the 151 proposed dwellings: > > (a) are out of character with the pattern of development in the surrounding area, > > (b) result in an unreasonable loss of landscape values, and > > (c) [Withdrawn] > > Particulars > > 1.1 The pattern of development in the surrounding area reflects the Local Area Objectives of Taroona and the associated Implementation Strategy as set out at cl.12.1.2 of the Scheme and which includes the following: > > • "The relative low residential density of Taroona will be maintained and any significant change to higher densities is to be avoided." > > • "Infill development should only be encouraged on sites convenient to urban facilities and services" > > 1.2 The pattern of development in the surrounding area reflects the Desired Future Character Statements and the associated Implementation Strategy as set out at cl.12.1.3 Desired Future Character Statements and which includes the following: > > • "Taroona is to continue to be a seaside suburb mainly containing single detached dwellings with established landscaped gardens. > > • Multi-unit housing is to be discouraged other than in the vicinity of the Taroona shopping centre." > > 1.3 [Withdrawn] > > 2. The development is required and fails to comply with cl.12.4.3 P1 of the Kingborough Interim Planning Scheme 2015 because: > > (a) The dwellings described as Building B Units 2 (levels 1 and 2) and Buildings E and K do not have private open space that is of a size and dimensions that are appropriate for the size of the relevant dwelling and is able to accommodate outdoor recreational space consistent with the projected requirements of the occupants and operational needs, such as clothes drying and storage;2 and > > (b) The dwellings are out of character with the pattern of development in the surrounding area; and > > (c) The dwellings result in an unreasonable loss of landscape values. > > Particulars > > 2.1 The two dwellings within Building Beach accommodate three bedrooms and a study which may be used as a fourth bedroom. The proposed deck for each of these units has a total area of 35.24m2. > > 2.2 Buildings E and K have no private open space. > > 2.3 While the permit includes a condition that requires the delivery of amended plans which include provision of private open space to serve Buildings E and K, no evidence is available to show that this can be accommodated in compliance with the balance of the Scheme requirements. > > 2.4 The pattern of development in the surrounding area reflects the Local Area Objectives of Taroona and the associated Implementation Strategy as set out at cl.12.1.2 of the Scheme and which includes the following: > > • "The relative low residential density of Taroona will be maintained and any significant change to higher densities is to be avoided." > > • "Infill development should only be encouraged on sites convenient to urban facilities and services" > > 2.5 The pattern of development in the surrounding area reflects the Desired Future Character Statements and the associated Implementation Strategy as set out at cl.12.1.3 Desired Future Character Statements and which includes the following: > > • "Taroona is to continue to be a seaside suburb mainly containing single detached dwellings with established landscaped gardens. > > • Multi-unit housing is to be discouraged other than in the vicinity of the Taroona shopping centre." > > 3 The development is required and fails to demonstrate compliance with cl.12.4.3 P2 of the Kingborough Interim Planning Scheme 2015 because the dwellings described as Buildings E and K do not have private open space that is capable of serving as an extension of the dwelling for outdoor relaxation, dining, entertaining and children's play and is conveniently located in relation to a living area of the dwelling and oriented to take advantage of sunlight.3 > > Particulars > > 3.1 Buildings E and K have no private open space. > > 3.2 While the permit includes a condition that requires the delivery of amended plans which include provision of private open space to serve Buildings E and K, no evidence is available to show that this can be accommodated in compliance with the balance of the Scheme requirements.

2. Ground 2(a), 2.1 and 2.3 and ground 3 deal with issues of private open space. The appellants proceeded on the basis that if the amendment to the development application was successful and the revised plans were substituted then those components of the grounds of appeal would fall away.
3. Accordingly we have limited our consideration to grounds 1 and 2, except insofar as ground 2 deals with private open space.

1. The relevant planning scheme is the Kingborough Interim Planning Scheme 2015 (the Scheme).
2. The site falls within the Low Density Residential Zone in cl 12.0 of the Scheme.
3. The proposed use is residential: table 8.2 of the Scheme. Under the use table in cl 12.2 residential use is a permitted use in the zone.
4. The grounds of appeal raise compliance of the proposal with cl 12.4.9 and cl 12.4.3 of the Scheme. Those standards are set out in our assessment below.
5. Each of grounds 1 and 2 assert that the pattern of development in the surrounding area reflects the Desired Future Character Statements and the associated Implementation Strategy in cl 12.1.2 of the Scheme. Clause 12.1.2 includes local area objectives and desired future character statements for certain areas, including for Taroona:

(a) The relative low residential density of Taroona will be maintained and any significant change to higher densities is to be avoided.

• (b) Areas within Taroona that are zoned Low Density Residential are to be developed so that both visual landscape and natural environmental values are protected.

(a) Infill development should only be encouraged on sites convenient to urban facilities and services.

• (b) Existing larger lot sizes are to be retained in order that there is sufficient land to accommodate substantial vegetation on site and provide for the desired landscape and natural amenity with only minimal expansion of the existing urban footprint permitted.

(a) Taroona is to continue to be a seaside suburb mainly containing single detached dwellings with established landscaped gardens.

• (b) The existing neighbourhood character that is associated with the area's landscape and environmental values should be protected

(a) Multi-unit housing is to be discouraged other than in the vicinity of the Taroona shopping centre.

• (b) The visual amenity of hillsides and skylines is retained by providing for larger lots that are able to retain sufficient native vegetation. Native vegetation is to be protected along the coastline and alongside gullies and watercourses. In some cases these areas also provide a buffer or transition between more closely settled urban areas and other areas with high natural values.

1. The appellants acknowledged that the relevant standards do not expressly direct an analysis of the proposed development against the local area objectives and desired future character statements, and did not contend that they should be elevated to the status of standards which the proposal is required to meet. Rather they contended that they play a role in guiding the exercise of discretion under the standards raised on the appeal by providing context and a secondary source for objectives that assist to aid in the task of construing the Scheme. The appellants say that the relevant context is the limiting of development that is out of character with the prevailing characteristics of the area and the existing pattern of development.
2. The Council and the second respondent pointed out that neither cl 12.4.9 nor cl 12.4.3 call up the local area objectives as part of the assessment to be undertaken. In that regard they may be contrasted with cl 12.5.1 which deals with subdivision in the Zone and which includes objectives that expressly refer to the local area objectives and desired future character statements. The Council also points out that cl 8.10.2 of the Scheme, which provides that regard is to be had to any relevant local area objective or desired future character statement in determining an application, only applies to applications for a discretionary use. It is not engaged by the proposal, which is for a permitted use, and the relevant standards raised by the grounds of appeal are development standards, not use standards.
3. We will have regard to the local area objectives and desired future character statements in cl 12.1.2 only insofar as they may assist in the context and construction of the standards raised by the grounds. The scheme is to be interpreted according to the general rules of construction: Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd [2021] TASFC 12 [112]. The meaning of a particular provision will be determined according to the ordinary and grammatical meaning of the text having regard to the context and purpose of surrounding provisions and the scheme of the Scheme: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [4] and [47] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 2 [69]. A purposive approach is to be taken and context considered at the first stage of the process of construction: The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 at [32]- [37].

Ground 1 - Clause 12.4.9 P1 - Residential density

1. Ground 1 raises compliance with cl 12.4.9 of the Scheme, which deals with residential density for multiple dwellings. It provides:

To provide for densities for multiple dwellings that are compatible with the existing built and natural environment of the area and do not exceed the capacity of infrastructure services.

Multiple dwellings must have a site area per dwelling of not less than 1000m2.

Multiple dwellings may only have a site area per dwelling of less than 1000m² if the number of dwellings:

(a) is not out of character with the pattern of development in the surrounding area; and

(b) does not result in an unreasonable loss of natural or landscape values; and

(c) does not exceed the capacity of the current or intended infrastructure services in the area.

1. It was common ground that the proposal would not satisfy the acceptable solution A1 and that it must be assessed against the performance criterion P1. To satisfy P1 the number of multiple dwellings must satisfy each of the following:

(a) not be out of character with the pattern of development in the surrounding area; and

(b) not result in an unreasonable loss of natural or landscape values; and

(c) not exceed the capacity of the current or intended infrastructure services in the area.

1. P1(a) and (b) were in contention. P1(c) was not raised as an issue on the appeal.
2. P1(a) requires consideration of the 'pattern of development' in the 'surrounding area'.
3. 'Pattern of development' is not defined in the Scheme. In the context of the standard it will not be limited to a two dimensional assessment of lines on a plan: T Tomaszewski & R Heath v Hobart City Council and Willar Pty Ltd & Anor [2020] TASRMPAT 5 at [62].
4. 'Surrounding area' is also not defined in the Scheme. The extent of the surrounding area should be considered in the context of the standard and the objective in cl 12.4.9. The objective is:

To provide for densities for multiple dwellings that are compatible with the existing built and natural environment of the area and do not exceed the capacity of infrastructure services.

1. In M Drury v Hobart City Council & Ors [2016] TASRMPAT 18 at [38] the Resource Management and Planning Appeal Tribunal (RMPAT) considered that the relevant area for the purposes of an assessment of character "must be sufficiently large to enable an assessment of prevailing characteristics but not so large as to dilute the character of the area around the development and alongside which the development will sit". In T Pain v Clarence City Council [2021] TASRMPAT 28 at [19], RMPAT considered that the surrounding area was "the area enclosing or encircling the site, being its environment" and applied the formulation in M Drury v Hobart City Council & Ors.
2. The objective in cl 12.4.9 refers to compatibility with the existing built environment of the area, which indicates that the pattern of development would include built form, including scale, bulk and height. Given that the standard relates to residential density, and that the performance criterion in P1 expressly references the quantitative limit of 1000m² in the acceptable solution A1, the two dimensional pattern will also be a relevant element of the assessment in respect to the size of lots, arrangement of roads and positioning of buildings within lots.
3. The appellant contended that the common meaning of 'pattern' of development means that it is comprised of the repeated or regular way in which development is arranged in an area. In the context of the standard the concept of repetition or regularity is too narrow. There may be no discernible pattern or there may be some secondary or even tertiary patterns with or without some anomalies. The standard is concerned with compatibility of the number of dwellings with the existing environment, not pattern recognition. Assessment of the relevant pattern of development will require an assessment of the arrangement and composition of development in the surrounding area. That may identify some repetition, regularity or paradigm but the pattern of development within the meaning of the standard may be one that is characterised by an absence of regularity or predictability. If that were not so, multiple dwellings with a site area per dwelling of less than 1000m² could not be developed in the Zone in an entirely eclectic area or an area with no development at all.
4. Each party called evidence from expert planners, Mr Adam Smee for the appellant, Mr Phil Gartrell for the Council and Mr Mark O'Brien for the second respondent.
5. Mr Smee considered that topography played the most significant role in defining the surrounding area in this case, because of how development within Taroona is laid out and experienced. He also had regard to physical or visual proximity. He identified an area bordered by the Derwent River to the east, the Channel Highway to the west, a ridge line to the north and a gully to the south as the relevant surrounding area. This effectively limited the surrounding area to the immediate streetscape.
6. Mr Gartrell considered that the surrounding area was an area contained within a 200m radius of the subject site, having undertaken a broader analysis of the area to identify any defining built or natural elements that might have required a broader consideration of the surrounding area.
7. Mr O'Brien had regard to zoning, natural features, street network and character to define an area bounded on the east by the river, on the west by an elevation past the Channel Highway, on the north by a heavily vegetated area on the municipal boundary and on the south by a vegetated area and small valley depression.
8. Each of the areas identified by the experts was bounded to the east by the Derwent River foreshore and identified similar northern boundaries. Mr Gartrell and Mr O'Brien identified similar western boundaries. Mr O'Brien's southern boundary extended further than either of the other experts. Mr Smee's area was the most confined, although he included in his assessment properties adjoining but outside the boundaries of the area he identified.
9. The relevant area will be a matter of impression, informed by the approaches described in T Pain v Clarence City Council and M Drury v Hobart City Council & Ors. The eastern boundary of the surrounding area is well defined by the river. The northern boundary is also clearly defined by the municipal boundary which contains a line of natural vegetation and a gully. The western and southern boundaries of the area are not so apparent. The borders identified by the experts are somewhat arbitrary and, viewed broadly, there is not a great deal of difference in the nature of development and use within and beyond each of the identified boundaries.
10. The area identified by Mr Smee is unreasonably constrained, particularly given the size of the site within that area. We accept the broader approach to surrounding area taken by Mr O'Brien and Mr Gartrell.
11. Mr Smee considered the pattern of development within the surrounding area by having regard to the attributes of built form, siting and setbacks, architectural style, building height and vegetation cover. He undertook an analysis having regard to those attributes.
12. Mr Smee considered that the built form of the proposal would be markedly different to the predominant built form within the area. He noted that there were limited examples of multiple dwellings in the surrounding area and that the buildings on the site are relatively large and occupy a significant footprint exceeding all other buildings in the surrounding area. He observed that the strongly predominant land use, and associated built form, within the surrounding area is single detached dwellings. He did not identify a consistent pattern in setbacks of development in the surrounding area but observed that the generally larger lot sizes in the area allowed buildings to be relatively evenly spaced whereas the existing buildings on the site are mostly connected. He considered the architectural style in the area as eclectic with no predominant style. He considered that the more uniformly modern style of the proposal would be out of character.
13. Mr Smee noted that the proposal includes the addition of two storeys to a large building existing on the site. He observed that there are only limited examples of three-storey buildings in the surrounding area, and that they have substantially lesser footprints than the proposal.
14. Mr Gartrell considered that the surrounding area was primarily a residential neighbourhood in a semi-coastal setting, comprised of single and multi-residential dwellings in a low-density suburban environment. He described the development pattern as comprising a mix of both larger and more moderate sized lots, typically supporting detached homes with ample space for generous private open space and landscaping. He identified 91 separate residential lots in the surrounding area with a total of 160 dwellings, comprised of 82 single dwellings and 78 multiple dwellings across 9 separate lots, including the proposal. Of the 82 single dwelling lots only 37 have a site area equal to or over 1000m². Of the 91 separate residential lots, including multiple dwellings, 54 lots have site areas below 1000m². On the basis of site area per dwelling, 123 of the total number of 160 dwellings have a site area less than 1000m² per dwelling.
15. Mr Gartrell also compared the site area per dwelling of other multiple dwellings in the surrounding area, all of which have a higher density per dwelling than the proposal.
16. Mr O'Brien considered the pattern of development in the context of prevailing development characteristics having regard to dwelling density and built form characteristics including building heights, setbacks, siting, scale, separation distances, dwelling types, private open space provision and subdivision layout. He undertook a quantitative analysis on the basis of site area per dwelling. He calculated the per dwelling density of the proposal as 699m² and the density of dwellings in the surrounding area as ranging from 395m² to 24,555m². He calculated the mean average at 1,356m² and the median value as 810m². He noted that 27 of the 116 dwellings in the surrounding area are multiple dwellings, with a density ranging from 395m² to 606m². His evidence was that the proposal would have a lower density than all other multiple dwellings in the surrounding area, which was consistent with Mr Gartrell's evidence.
17. Mr O'Brien also undertook a qualitative analysis of the built form characteristics of the area. He considered that it consisted of a mix of single and multiple dwellings including detached, semi-detached and retirement living, with a mix of building scale from one to three-storeys. He considered that there is no consistent building setback or separation distance but noted that detached dwellings are prevalent. He considered that irregular lot shapes and sizes resulted in an inconsistent pattern of built form. He observed that landscaped gardens and streets are prevalent with views of built form regularly obscured by vegetation. Mr O'Brien considered that the overall built form scale of the proposal would appear less than that existing on the site and that the proposal would bring development on the site to be more in keeping with the pattern of development in the surrounding area. In particular, the proposal would result in more detached buildings on the site and greater separation between buildings, and that the proposal would appear like a series of detached dwellings consistent with the surrounding area. Although one building would be increased by two-storeys, that building is lower in elevation and will appear similar in scale to a two-storey building and be similar in scale to other two- and three-storey buildings in the area.
18. In respect to P1(a), the consideration is whether the number of dwellings in the proposal is not out of character with the pattern of development in the surrounding area. Mr Smee's assessment was limited by the overly confined surrounding area he had regard to. Mr O'Brien considered that the proposed density was not out of character with the existing density of the area and he observed that the proposal will appear less dense than that which is existing. Mr Gartrell considered that the proposal would be consistent with the dominant residential character and pattern of development.
19. We consider that the surrounding areas identified by Mr O'Brien and Mr Gartrell better represent the surrounding area for the purposes of P1(a). The pattern of development in that area includes a range of dwelling types and built forms and a range of lot shapes and sizes. Having regard to the quantitative analysis undertaken by Mr Gartrell and the eclectic character of the area, the proposal will be not so different to the development in the surrounding area as to be out of character with it.
20. In respect to P1(b), the experts were largely consistent in their assessment of the landscape values of the surrounding area. Mr O'Brien usefully described the overall landscape values of Taroona as being influenced by both a perceived and actual connectivity to the Derwent River and coastline to the east and to the undeveloped hillside landforms to the west, with the land broadly described as an easterly facing slope with urban development, vegetation corridors and landscape gardens featuring throughout the area. Due to the extent of development views towards landscape features are often interrupted by built form, particularly in lower elevations. The surrounding area of the proposal reflects the landscape values of Taroona.
21. We are satisfied that the number of dwellings will not result in an unreasonable loss of natural landscape values. In terms of landscape values in the area, the proposal will be similar to that which exists on the site. Although Mr Smee is critical of the limited extent of material in the development application in respect to views, the increase in height of one building will not cause an unreasonable loss. The site coverage will reduce from the existing site coverage, existing vegetation will marginally be retained and additional landscaped gardens will be developed.
22. Ground 1 is not made out.

1. Ground 2 raises compliance with cl 12.4.3 A1 and P1 of the scheme. Clause 12.4.3 A1 and P1 provide:

(a) for outdoor recreation and the operational needs of the residents; and

(b) opportunities for the planting of gardens and landscaping; and

(c) private open space that is integrated with the living areas of the dwelling; and

(d) private open space that has access to sunlight; and

(e) for development that is compatible with the existing built and natural environment of the area.

(a) a site coverage of not more than 25% (excluding eaves up to 0.6m); and

(b) a site area of which at least 25% of the site area is free from impervious surfaces;

(c) for multiple dwellings, a total area of private open space of not less than 60 m2 associated with each dwelling

(a) private open space that is of a size and dimensions that are appropriate for the size of the dwelling and is able to accommodate:

(i) outdoor recreational space consistent with the projected requirements of the occupants; and

(ii) Operational needs, such as clothes drying and storage; and

(b) have reasonable space for the planting of gardens and landscaping

(c) not be out of character with the pattern of development in the surrounding area; and

(d) not result in an unreasonable loss of natural or landscape values

1. It was common ground that the proposal would not satisfy the acceptable solution A1 and must satisfy the performance criterion P1.
2. As issues in respect to private open space have fallen away with the amendment to the development application, the issues in respect to P1 arise in connection with P1(c) and (d). Adjusting for the grammar in the standard, the requirements are that dwellings must:

(c) not be out of character with the pattern of development in the surrounding area; and

(d) not result in an unreasonable loss of natural or landscape values.

1. Those standards are similar to the standards considered in respect to cl 12.4.9 P1(a) and (b). The difference is that cl 12.4.9 P1 relates to the number of dwellings and cl 12.4.3 P1 relates to the dwellings per se.
2. 'Dwelling' is defined in cl 4.1.3 as the scheme as:

Means a building, or part of a building, used as a self-contained residence and which includes food preparation facilities, a bath or shower, laundry facilities, a toilet and sink and any outbuilding and works normally forming part of a dwelling.

3. Clause 12.4.3 regulates site coverage and private open space. It lists five objectives, the first four of which specifically relate to outdoor recreation, gardens and landscaping and private open space. P1(a) and (b) expressly relate to private open space and gardens and landscaping. The fifth objective is "for development that is compatible with the existing built and natural environment of the area". That fifth objective is reflected in P1(c) and (d). P1 is the alternative route to approval if a proposal does not satisfy the acceptable solution A1, which sets a quantitative maximum for site coverage and minimums site area and private open space. Clause 12.4.3 includes a second standard, A2 and P2, that relates to sufficiency of private open space accessible from or conveniently located in respect to habitable rooms or living areas. The tests in P1(c) and (d) are not at large and must be read in the context of the purpose and objectives of the standard relating to site coverage and private open space.
4. Site coverage is defined in cl 4.1.3 as "the proportion of a site (excluding any access strip) covered by roofed buildings". Unlike the assessment against pattern of development in the surrounding area in cl 12.4.9 P1(a) the test in P1(c) will be a two dimensional assessment. The Council's submissions were that the assessment was limited to the elements of the proposal that relate to private open space, availability of outdoor recreation, gardens and landscaping. Given the context provided by the acceptable solution A1(a) and the objective (e) we consider that that approach is too narrow and that site coverage is also relevant.
5. Mr Smee's assessment had regard to established built form, the architectural style of buildings in the area and the height of buildings, matters which are not called up in consideration of P1(c). In respect to the siting of development on lots, including setbacks, he observed that there is no consistent pattern and that these elements vary in the surrounding area in response to topography and the shape of the respective lots. He observed that the lot sizes were generally large and the buildings relatively evenly spaced. In his opinion the separation between the buildings on the site is generally less than that found within the surrounding area.
6. Mr O'Brien observed that the characteristics of the surrounding area included landscaped gardens and lawns of variable sizes, predominantly easterly and northerly oriented private open space to take advantage of sunlight and river views and boundaries between public land, with private open space and communal open space not always being apparent. He considered that the overall open space provision of the proposal would appear in keeping with the pattern of development in the surrounding area. He noted that the proposal would result in more detached buildings and greater separation between buildings on the site, creating more space for landscaped gardens. He considered that the proposal would appear like a series of detached buildings with landscaped gardens.
7. Mr Gartrell observed that the pattern of development in the surrounding area was dominated by single detached dwellings with often significant areas of private open space, gardens and landscaping. He concluded that the dwellings with the least amount of private open space were akin to examples of smaller single detached dwellings and multiple dwellings in the surrounding area.
8. We are satisfied that the generally detached buildings in the proposal with surrounding gardens will not be out of character with the characteristic pattern of detached dwellings with gardens in the surrounding area. The proposal will satisfy P1(c).
9. In respect to P1(d) we are also satisfied that the proposal will not result in an unreasonable loss of natural landscape values. The proposal is for the redevelopment of an existing site, generally within the footprint of the existing buildings. The proposal will reduce the overall site coverage allowing for greater provision of gardens and landscaping.
10. Ground 2 is not made out.

1. The grounds of appeal, insofar as they were in issue at the hearing, are not made out. The decision of the Council to grant a permit should be affirmed.
2. The decision to grant a permit and the conditions to apply to the permit are components of a single process: Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42 [10]. The Council provided draft proposed permit conditions which reflect the amendment to the development application. No party directly raised any issues in respect to the proposed conditions, however the conditions may require changes to reflect the amendments to the plans in the development application. The appellants' brief submissions on conditions contemplated the proposal being limited to 13 dwellings. We will therefore give the parties the opportunity to consider the conditions before proceeding to a final determination, taking into account the impending seasonal holidays.
3. Accordingly:
   1. Development application DA-2024-245 is amended by substituting the plans in the application with the plans in Attachment A to the application dated 24 June 2025 filed by Page Seager on behalf of Stewart Family Tasmanian Investments Pty Ltd.
   2. The parties are to jointly file agreed conditions for a permit by 19 January 2026.
   3. If the parties are unable to agree conditions in accordance with (1) then by 19 January 2026 the Council is to file and serve proposed conditions and the appellants and the second respondent are to each file and serve any submissions in respect to the proposed conditions within 7 days following filing and service of the proposed conditions.
   4. There is liberty to apply in respect to this timetable.