There are no details of the proposed offset, see cl 8.1(c), that requires 'a full description of the proposed use or development'.

There is no description of an offset, further there is a requirement, in cl. 8.1(d) that there must be 'a description of the manner in which the proposed use or development will operate'."

1. The appellant submits that the second respondent could have put forward a plan that included an offset as part of its development application, noting there was no application to amend the development pursuant to s 22(3) of the Act. It contends that a "natural values assessment" (defined in cl E10.3 of the Scheme), ought to have been part of the development application and informed the details of it.
2. In relation to the need for offset the Tribunal said [142]:

"The evidence of both Mr Wapstra and Mr North was that an offset applying a ratio of 5:1 (being the industry standard identified and used) is capable of application with respect to this Proposal, which would result in an offset area within the 390 hectare sight. Both experts agreed that such an area containing high priority biodiversity values could be identified and quarantined. Whilst Mr Wapstra's evidence was that an offset was not necessary, Mr North was of the opinion that an offset was appropriate and necessary if the proposal was to be approved. The Tribunal accepts Mr North's evidence in that regard."

1. As the second respondent submits the issue was squarely engaged in the hearing and the evidence supported the conclusion that an offset could ameliorate the biodiversity impacts of the development.
2. Subject to the imposition of that condition the Tribunal determined that the requirements of the Code were met. (The Tribunal observed that the experts disagreed as to the appropriateness of an offset, but it was open to it to prefer the evidence of Mr North in that regard. Nothing turns on that).
3. The appellant refers to the decision of the New South Wales Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 for the general point of principle that it is not open to a planning authority to grant a permit for a development and use that it is materially different from that for which application which was made. Counsel for the second respondent submits that the decision in Mison "is not a freestanding common law principle but rather the question is one of statutory construction that turns upon the facts of individual cases", citing a decision of the Full Court of the Federal Court in Queensland (Department of Agriculture and Fisheries v Humane Society International (Australia) Inc [2019] FCAFC 163). It also refers the Court to several authorities including St Helen's Area Land Care and Coastcare Group Inc v Break O'day Council [2007] TASSC 15, 16 Tas R 169, page 175 at [12].
4. The question is whether the course taken by the Tribunal resulted in a development which was different or transformed from that which was applied for.
5. In my view it did not. Developments have land use consequences, which is why they are regulated. Regulation occurs through planning schemes resulting in the imposition of conditions. In that sense, conditions are the consequences of that which is applied for. Provided there is an evidentiary foundation for the condition, and it is properly connected to the development in accordance with the general principle articulated in Western Australia Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63, 221 CLR 30, the conditioning of a development application does not transform the development itself into something different. The result which accrues here in consequence of the offset requirement emerges from the operation the Biodiversity Code, applied to the development, according to the Scheme. That was no more than the result of the conclusion that cl. E10.7.1P(1)(v) was engaged. The offset is not however "a distinct and separate activity or use" which was required to form part of the development application. Its imposition on the development has not created a different development, or transformed it from that which was applied for. I reject the submission that the development proposal changed in consequence of the offset condition.
6. The second element of ground 1 asserts the condition lacks certainty and finality. The appellant submits that the condition "defers for subsequent determination an essential element of the development". It is submitted that the finality principle has been breached because the permit was granted, but then required that the requirements emerging from the application and operation of cl E10.7 of the Scheme be conducted after the permit had been granted. It submits that condition 21c is "completely uncertain" for the following reasons:

(a) The offset plan is not defined. There is a requirement to identify high priority biodiversity values to be removed, which in our submission is required to be done at the development application stage not after the permit was issued.

(b) An area, or areas, totalling not less than five times the estimated area of the high priority biodiversity to be cleared is to be identified. However, an area may be more than one physical area.

(c) There is a requirement for management actions which are not specified or the mechanism by which they are to be achieved. That is, it is not a conservation covenant or a Pt 5 agreement.

(d) There are requirements for a condition and maintenance report in the first five years and ongoing supplementary "checks". None of these requirements are registered on the title. An "independent third party" is not defined.

(e) It refers to a "suitably qualified person" on multiple occasions, however, it fails to specify any criteria to determine who might be suitably qualified.

1. In Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, the court identified a test for determining uncertainty or lack of finality at 28:

"... it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development...". (My emphasis.)

1. In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111 at 179:

"Decisions such as Mison, Winn, Kindimindi and Ulan Coal Mines go to confirm the observation that, under the general law, the question whether a conditional approval or a condition attached to the approval of some activity is valid, is an exercise in statutory construction. They also confirm that, as a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency."

1. The principle advanced by the appellant is not a contentious one. The question is whether that principle is offended. The answer to that question requires consideration of whether there is a continuing uncertainty about what has been approved because "what is left uncertain" is the possibility that the development as approved may be significantly different from the development the subject of the application.
2. In my view the facts do not support the appellant's argument. I do not foresee a planning outcome which leaves open the possibility of something so different from that which was applied for and approved, that there is the requisite uncertainty of outcome to offend the principle; there is not continuing uncertainty around those matters, but rather "ongoing flexibility in relation to.. implementation" achieved by way of a delegated authority in relation to that matter.
3. I dismiss this ground.

1. Ground 2 engages the principles of statutory interpretation to which I have already referred. The Tribunal decided that "site" for the purpose of assessing compliance with P1(c) was equivalent to the area identified in evidence as the hazard management area[6]. So doing it chose not to adopt the definition of "site" appearing in cl 4.1 of the Planning Scheme to cl E10.7. It did so because to adopt that definition would result in "an absurd unworkable performance criteria incapable of application..."; that the scale of the task which would be required was onerous and "that an acceptance of the scheme definition, extended the clause beyond the boundaries of reasonable proportionality"[7]. It decided that "the plain and ordinary meaning of 'site' in P1(c) when read in the context of cl E10.7.1 as a whole, has a narrower meaning than the scheme definition. The Tribunal adverted to a submission made by the second respondent that cl P1(c)(iii) was inconsistent with s 51(1A) of the Land Use Planning and Appeals Act 1993 to bolster this conclusion, commenting, without deciding that point, that the submission had 'considerable force' if the Scheme definition of site was adopted."
2. An orthodox question of statutory construction, the approach identified in A2 (above) and Raf Angus (above) is required. That compels a consideration of the words used in the Scheme taken in the context of the surrounding provisions and legislative scheme.
3. Clause 8 of the scheme governs the assessment of an application for development. Clause 8 refers to "site" and does so, incontrovertibly, in terms which engage the scheme definition of that term. Clause 4.1 of the Scheme, which relates to planning terms and definitions in the Scheme, requires the adoption of those planning terms and definitions "unless the contrary intention appears."
4. When the assessment task is undertaken, it is governed by the approach in cl.8, unless the contrary intention appears. There is no express term in Cl E10 which permits a departure from the Scheme definition in particular circumstances. Nor considered in its broader context, is a different definition- or contrary intention, indicated.
5. The presumption that defined words have their defined meanings is not to be displaced without good reason: Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38]. The second respondent's submission to the Tribunal that cl. P1 (c) (iii) is ultra vires, unless that definition is avoided, does not provide a basis for such a conclusion. If correct it would require that the uncertainty or ambiguity alleged be demonstrated each time the clause is engaged.
6. Approaching the matter that way, ground 2 can be resolved relatively quickly. The Tribunal's approach emerged from an appraisal of the task associated with assessing the scale of the task required by the adoption of the Scheme definition of "site". Nothing in the language of cl E10 indicates a proper basis for doing so; nothing in the language of that clause considered according to its terms, and its context, authorises the Tribunal to depart from the Scheme definition of "site" when undertaking the assessment. No discretion to depart from that definition is conferred.
7. The consequences of adopting the scheme definition are not relevant considerations. The fact that a large area falls within the purview of such definition neither permits, nor requires, a different construction. Adapting the reasoning in Timber World (above) that result reflects no more than that the authors of the Code intended that compliance with cl E10 could be achieved only in certain circumstances_._ Put another way that purpose is precisely the reason for adopting the definition of "site" in the Scheme.
8. Accordingly, "site" for the purpose of cl E10 must be identified in accordance with the definition in the Scheme in consequence of cl 8 of the Scheme, and the purpose enshrined within cl.E10 P1.
9. It follows that the tribunal erred in departing from the Scheme definition of "site" and this ground should be upheld.
10. Before the Tribunal, the second respondent asserted that this clause of the Scheme was attended by sufficient uncertainty to render it ultra vires. Departing from the Scheme definition of "site" avoids resolution of this contention, adopting it, enlivens the argument, as the Tribunal acknowledged at [96] of its reasons. On that basis I will say something about it.
11. The regulation of permits is fundamental to the system of planning and development enshrined within the LUPA Act and the subordinate legislation pertaining to land use and development in this State. The entitlement to develop land is not defeated by the application of the scheme definition of "site" to the performance criterion, nor is it rendered uncertain. The entitlement is merely regulated by it. The authors of the Scheme intended that in circumstances such as this one, the objectives contained within the Biodiversity Code should be rigorously applied. That outcome is achieved requiring its application to the site as defined by the Scheme, not as modified by a planning authority based on its own assessment of the effect or extent of the obligation which might arise in any given case from applying that definition. Section 20 of the LUPA Act authorises such purpose, and it is consistent with the Objectives in Schedule 1 of that Act. The passage appearing at [17] of Blow CJ's decision in Timber World (set out above) is apposite.
12. I reject the submission that the clause was attended by uncertainty or ambiguity or resulted in an outcome that lacked reasonable proportionality vis a vis the outcome required by the Scheme and the Code in order to deal with the biodiversity impacts of the development. The provision is not ultra vires.

1. Ground 3 asserts error in the Tribunal's decision to the effect that cl E10.7.1 P1(c)(v) of the Scheme is ultra vires. In light of my conclusion that ground 1 should fail, it is not necessary to consider this ground.

1. The nub of Ground 4, is that "the second respondent chose not to locate the proposal in an area already cleared of high priority biodiversity values" as required by cl E10.7.1 P1, and cannot assert that it has minimised the impacts of the development without also demonstrating there was not an alternative siting which would cause less or no impact upon those values. The Tribunal rejected this. At [80] it said:

"... Mr North's assessment proceeded on the basis that to establish that the Proposal was designed and located to 'minimise' impacts required demonstration that no alternative siting and design would cause either less or no impact at all...." The Tribunal accepts the Second Respondents submissions that on an assessment of compliance with P1(c)(i) only a consideration of the development on the chosen site is relevant. Mr North's evidence in that regard is not of assistance to the Tribunal." (My emphasis.)

1. In support of its submission the appellant draws an analogy from cases engaging the Heritage Act 1995. As that Act was framed, when engaged, an applicant seeking approval to undertake development, was required to show that there was "no prudent and feasible alternative to the carrying out of the work". Planning authorities had to wrestle with this without real direction as to how far such enquiry went. In Kidd v Resource Management & Planning Appeal Tribunal [2011] TASSC 38, 20 Tas R 339 the court held at [43] that the inquiry against this consideration was "not one confined to, nor constrained by, the parameters of the proposal." Each case required its own judgment about how far the enquiry was required to take matters so as not to confine it to the parameters of the proposal. The scope for argument, and challenges was significant.
2. It is to be observed at the outset that no such obligation is expressly articulated in cl E 10.7.1 P1(c) unless one interprets the requirement for a "development" that is "designed to minimise impacts" as stipulating such obligation. It is trite to observe that the correct approach to the assessment of a development application is to consider it against the applicable planning scheme, interpreted in accordance with established principles therefor, and to identify the planning consequences which emerge, and the options which are offered to address those planning consequences. If the demonstrated planning consequences offend a provision of the planning scheme in a way which cannot be ameliorated in a permitted way (through offsets for example), the development application cannot be approved. If the Scheme makes provision for alternative pathways to an approval, then, if an alternative pathway can be satisfied, the development application is required to be approved, subject to such conditions as are necessary. The planning authority is required to consider the application as submitted against the terms of the Scheme. I do not consider that the requirement in cl E10 P1(c)(i) should, be read as if E10 P1(c)(v) was not part of the provision. Clause E10 P1(c)(v) provides a pathway to development approval notwithstanding the biodiversity impacts which accrue by reason of the development as designed. E10 P1 imposes an obligation upon a developer to do no more than demonstrate that its development can achieve the required result by such means as the scheme permits. The very notion of offsets exists to afford a pathway to an approval in circumstances where the chosen design has such impacts.
3. Clause E10.7 P1 should be interpreted to reflect the fact that the scheme affords a method for the amelioration of biodiversity impacts as a means of obtaining an approval. Accordingly "designed to minimise impacts" in P1(c)(i) means "designed to minimise impacts in accordance with this part" which includes P1(c)(v) (offsets). This affords developers the option of submitting a preferred design; one which accords with its commercial needs.
4. The approach taken by the Tribunal was in accordance with this. It assessed the development in accordance with its statutory obligation according to the evidence. That it erred by adopting a definition of site in circumstances where such course was legally incorrect and factually unsupported, does not derogate from my conclusion in relation to this ground. Ground 4 fails.

1. I would uphold the appeal. In the circumstances, I take the view that it is appropriate to remit the matter to a differently constituted Tribunal for its determination. That is the appropriate course in cases where the Tribunal has reached a wrong decision, as opposed to no decision, as those concepts are discussed in cases such as Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597.

1. [1]Section. 25 Appeals to Supreme Court from decisions of Appeal Tribunal

(1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal.

(2) An appeal from a decision of the Appeal Tribunal must be made to the Supreme Court -

(a) within 28 days after the making of the decision; and

(b) in accordance with any applicable Rules of Court made by the Supreme Court and any regulations made for the purposes of this section.

(3) The Supreme Court may extend the time for instituting the appeal.

(4) The time for instituting the appeal may be extended even though the time has ended.

(5) The Supreme Court must hear and determine an appeal duly made under this section, and may make such orders as it considers appropriate.

(6) Without limiting subsection (5) , the orders that may be made by the Supreme Court on an appeal include -

(a) an order affirming a decision of the Appeal Tribunal; and

(b) an order setting aside a decision of the Appeal Tribunal and -

(i) making a decision in substitution for the decision set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions of the Supreme Court."

1. [2]"Biological diversity" is defined in the Nature Conservation Act 2002 at s 3:

(a) plants, animals and micro-organisms; and

(b) the genes contained in plants, animals and micro organisms; and

(c) the ecosystems of which plants, animals and micro-organisms form part."

The appellant identifies a number of definitions that are relevant to this appeal:

"Site" "... the lot or lots on which a use or development is located or proposed to be located." : Clause 4.1 of the Planning Scheme

"Lot" means a piece or parcel of land in respect of which there is only one title other than a lot within the meaning of the Strata Titles Act 1998.": Clause 4.1 of the Planning Scheme

"Development area"... the area of land occupied by development including its yard, outbuildings, car parking, driveways, storage areas, landscaping and wastewater disposal areas." : Clause 4.1 of the Planning Scheme

"Suitably qualified person (biodiversity)" means a person possessing the knowledge, skills and experience to provide advice on ecological issues associated with the use and development of land. The person must be cognisant of current legislation and policy and be mindful of best practice in management and mitigation of potential impacts.": Clause E10.3 of the Planning Scheme

"Biodiversity" means "... biological diversity as defined under the Nature Conservation Act 2002." :Clause 4.1 of the Planning Scheme

"Biological diversity" in the Nature Conservation Act 2002 at s 3:

(a) plants, animals and micro-organisms; and

(b) the genes contained in plants, animals and micro organisms; and

(c) the ecosystems of which plants, animals and micro-organisms form part."

"Biodiversity Offsets": For the purposes of cl. E10.7.1 P1(v), the Planning Scheme defines "biodiversity offsets" at cl. E10.3 as:

"...measures that compensate for the residual adverse impacts of an action on the environment, when:

(a) alternatives and options to avoid those impacts have been exhausted;

(b) it is still considered desirable for other economic, social or environmental reasons for the action to proceed."

[4] Timber World Pty Ltd v Meander Valley Council [2020] TASSC 27.

[5] AB205 - Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay Holdings Pty Ltd (2020) TASRMPAT 12 at [141]- [144].

1. [6]That area was identified at [55] by reference to the evidence of a planner, Ms Blowfeld. It is not necessary to identify that area, the issue being whether the Tribunal was correct to depart from the Scheme definition.
2. [7]The evidence led at the hearing renders doubtful the Tribunal's conclusion that the obligation lacked reasonable proportionality. The evidence of Mr Wapstra, was that it was not unusual to assess an area of the size in question in this case.