Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay Holdings Pty Ltd (No 2) [2023] TASCAT 143 (31 July 2023)

Citation: Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and

Coles Bay Holdings Pty Ltd (No 2) [2023] TASCAT 143

Division: General

Stream: Resource & Planning

Parties: Saltwater Lagoon Pty Ltd (Appellant) Glamorgan Spring Bay Council (Respondent)

Coles Bay Holdings Pty Ltd (Second Respondent)

Hearing Date(s): Submissions were made in writing

Hearing Location: Hobart

Date of Orders: 31 July 2023

Date Reasons Issued: 31 July 2023

Panel: R Grueber, Deputy President

Orders Made: 1. The appeal is to be listed for hearing on a date or dates to be

determined by the Principal Registrar or his delegate following liaison with the parties.

Catchwords: Planning appeal - Matter remitted to the Tribunal by the Full court

of the Supreme Court - Consideration of the ambit of matter remitted to the Tribunal

Legislation Cited: Resource Management and Planning Appeal Tribunal Act 1993;

Tasmanian Civil and Administrative Tribunal Act 2020; Glamorgan Spring Bay Planning Scheme 2015

Cases Cited: Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay

Holdings Pty Ltd [2023] TASCAT 90; Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay Holdings Pty Ltd [2020] TASRMPAT 12; Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council [2022] TASFC 5; Timber World Pty Ltd v Meander Valley Council [2020] TASSC 27; Repatriation Commission v Lionel Nation [1995] FCA 1277; Tomaszewski v Hobart City Council (No.2) [2021]

TASSC 15; : Re Carmel Elizabeth McDonald v Director-General of Social Security [1984] FCA 57; Beezley v Repatriation Commission [2015] FCAFC 165; Chao v Chao (No.2) [2008] NSW SC 612; Sultan

Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14; R v Resource Management & Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd [2005] TASSC 8.

1. The background to this planning appeal is set out in Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay Holdings Pty Ltd [2023] TASCAT 90 (the evidentiary decision). That decision followed an order remitting the matter to the Tribunal by the Full Court of the Supreme Court in Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council [2022] TASFC 5.
2. To avoid confusion, I will refer to the appeal of the decision by the Glamorgan Spring Bay Council to grant a planning permit determined by the Resource Management and Planning Appeal Tribunal (RMPAT) as 'the planning appeal' and the appeal from the decision of that Tribunal to the Supreme Court as 'the appeal'.
3. The evidentiary decision determined an application by the second respondent for leave to adduce further evidence with respect to compliance with cl E10.7.1 P1(c)(iii) of the Glamorgan Spring Bay Planning Scheme 2015 (the Scheme) at the hearing of the matter remitted to the Tribunal. I determined that the parties should have leave to adduce such evidence.
4. The evidentiary decision considered the ambit of the matter remitted to the Tribunal, but only insofar as it was necessary to conclude that it extended to determination of compliance with cl E10.7.1 P1(c)(iii) of the Scheme.

1. The second respondent has made a further application, arising from the evidentiary decision, for a preliminary determination as to the extent of the matter remitted to the Tribunal in accordance with the order of the Full Court.
2. The second respondent initially contended that the extent of the matter remitted is whether the development application complies with cl E10.7.1 P1(c)(iii) of the Glamorgan Spring Bay Planning Scheme 2015 in accordance with the Full Court's direction as to the meaning of 'site'. The second respondent's position on the matter remitted subsequently expanded to include compliance with cl E10.7.1 P1(c)(v), as noted below.
3. The appellant initially did not expressly address the extent of the matter remitted but contended that the consideration by the Tribunal on the hearing should not be so confined as proposed by the second respondent. The appellant opposed the making of a preliminary determination. The appellant contended that determination of the extent of the matter remitted should only be made at the conclusion of the hearing, on the basis of the evidence and legal submissions, and in accordance with the decision of the Full Court. On considering the appellant's submissions I formed the view that the ambit of the matter remitted to the Tribunal should be determined as a preliminary matter as it involves a discrete issue that will inform the extent of the evidence and submissions to be considered at the hearing and the parties' preparation for the hearing.

1. Because the appellant largely confined its submissions to whether a preliminary determination should be made and did not substantially addressed the issue of ambit, I made directions inviting the further submissions and response.
2. The Council has taken a neutral position.

1. The planning appeal was originally made to RMPAT. The Tribunal is now seized of the planning appeal by operation of s 152 and s153 of the Tasmanian Civil and Administrative Tribunal Act 2020.
2. The planning appeal was made on eight grounds, which were considered in RMPAT's decision in Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay Holdings Pty Ltd [2020] TASRMPAT 12 (the RMPAT decision). Three grounds were resolved by the Council not pressing for the imposition of conditions that it had imposed on the permit. RMPAT did not uphold any of the remaining grounds.
3. Ground 2 asserted a failure of the proposal to comply with cl E10.7.1 P1(c) of the Scheme on five sub-grounds. One sub-ground was a failure to comply with the performance criterion P1(c)(iii). RMPAT found that the proposal would comply with P1(c)(iii), based on a particular meaning of the word 'site'. In respect to another sub-ground, RMPAT found that cl E10.7.1 P1(c)(v) was ultra vires.
4. The appeal to the Supreme Court was heard by the Full Court on reference from a single Judge. The appeal was made on four grounds:
   1. Ground 1 related to the imposition of a condition by RMPAT and was rejected by the Court.
   2. Ground 2 contended that RMPAT had applied a wrong interpretation of 'site' in respect to cl E10.7.1 P1(c)(iii) and was upheld by the Court.
   3. Ground 3 asserted error by RMPAT in finding cl E10.7.1 P1(c)(v) was ultra vires, which the Court determined it did not need to consider given its determination of ground 1.
   4. Ground 4 asserted error by RMPAT in respect to its approach to assessment under cl E10.7.1 P1(c) and was rejected by the Court.
5. Ground 2 of the appeal, upon which the appellant succeeded, asserted error by RMPAT in its interpretation of the word 'site' in cl E10.7.1 P1(c)(iii). The term 'site' is defined in cl

4.1.3 of the Scheme. Clause 4.1.3 provides that the definitions contained within it apply unless the contrary intention appears. RMPAT formed the view that applying the definition in cl 4.1.3 would render the cl E10.7.1 P1(c)(iii) unworkable and applied a narrower meaning than the definition. The Full Court found that the Tribunal fell into error in doing so, and that 'site' for the purposes of cl E10.7.1 P1(c)(iii) has the meaning defined in cl 4.1.3.

1. Geason J, with whom Estcourt J and Pearce J agreed, concluded, at [61], that remitter was the appropriate remedy:

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. The relevant orders made by the Full Court were:
   1. The appeal is allowed.
   2. The matter is remitted to a differently constituted tribunal for determination in accordance with law.

1. Following the Full Court publishing its reasons, but before the orders were perfected, the appellant sought to re-open its case and to persuade the court to vacate the order to remit the matter, and for the Court to instead determine the planning appeal. The application was made on the basis that a submission by the appellant to the Full Court on the hearing of the appeal may have been overlooked. The application was refused, with reasons published to the parties only.

1. In the evidentiary decision I considered the nature of the remitter at [8]-[9]:

1. The appeal to the Court was instituted before the commencement of the TASCAT Act. Section 153 of the TASCAT Act preserves appeals from RMPAT to the Court that are not resolved before the commencement of the TASCAT Act. Section 153(4)(a) provides that if the powers of the court immediately before the commencement of the TASCAT Act included the power to "remit the proceedings" to be heard and determined again by RMPAT, then the Court may "remit the proceedings" to this Tribunal. Remitting 'the matter' reflects the language in s25(6)(b)(ii) of the RMPAT Act, which deals with the orders that may be made by the Supreme Court on an appeal.

1. In Timber World Pty Ltd v Meander Valley Council [2020] TASSC 27 at [26] Blow CJ, having decided that remitter was appropriate, chose to remit 'the case' rather than 'the matter' to enable the RMPAT to reinstate any abandoned grounds of appeal. He did so because of what was said in the Federal Court as to the meaning of 'matter' in Repatriation Commission v Lionel Nation [1995] FCA 1277. In that case Beaumont J, with whom Black CJ and Jenkinson J agreed, considered the meaning of an order on an appeal from the Administrative Appeals Tribunal (the AAT) that 'the matter' be remitted to the AAT. The AAT determined the remitted matter and a further appeal ensued concerning whether the AAT's decision exceeded the extent of the remitter. At first instance Northrop J described 'the matter' as meaning all things in dispute between the parties. His Honour considered that the ambit of the things in dispute between the parties was limited to the issues which were the subject of the appeal to the Court. On appeal from that decision, Beaumont J noted that, if the language of an order is susceptible of more than one meaning, evidence of surrounding circumstances, including the reasons for judgment, may assist in the interpretation of the order. At [43] to [44] he said:

1. In my opinion, the language of the order of remitter was susceptible of more than one meaning. The word "matter" could have meant the whole question being the determination of the respondent's claim for a further pension. But it could also have meant the specific dispute then agitated before the Court, that is, the sequela issue...

1. It follows from the ambiguity of the order of remitter that resort may be had, in aid of its true interpretation, to the surrounding circumstances. Those circumstances included, of course, the reasons for judgment. When regard is had to those reasons, it appears clearly that the meaning to be given to "matter" in the present context is the more restricted one, that is, the sequela question. That was the only issue tendered for determination by the Court.
2. The appellant contends that the decision by RMPAT was quashed in its entirety. It draws a comparison with the decision in R v Resource Management & Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd [2005] TASSC 8 where the orders of the Court expressly quashed parts of a decision by RMPAT and preserved the balance of the decision. The appellant does not extract any principle from that case, but uses it as an example or comparator.
3. The second respondent submitted that it can be reasonably inferred that when making the order to remit the matter the Full Court intentionally limited the remitter to whether the proposed development complies with clause E10.7.1 P1(c)(iii) of the Scheme, having regard to the Full Court's direction as to the meaning of 'site'. The second respondent cited Timber World Pty Ltd v Meander Valley Council [2020] TASSC 27 and Repatriation Commission v Lionel Nation [1995] FCA 1277, which were referred to in the passages from the evidentiary decision set out above.
4. The appellant and the respondent have since agreed that grounds 2(c), 2(e) and 3 of the planning appeal fall within the matter remitted. The appellant also proposes to press the planning appeal grounds 2(b), 2(d), 4 and 5. Each of those grounds raises consideration of compliance with elements of cl E10.7.1 P1(c) of the Scheme. The extent of the remitted matter will, of course, be determined by the order of the Full Court, not the parties.
5. Generally, in determining a planning appeal the Tribunal undertakes a de novo consideration of the application for a permit and has an obligation to reach the correct or preferable decision: at and at . A planning appeal is not ordinary inter partes civil litigation and the Tribunal may take on an inquisitorial role: at and [17].

1. The appeal to the Full court was made pursuant to s 25 of the now repealed Resource Management and Planning Appeal Tribunal Act 1993.1 In respect to disposition of an appeal, s 25(5) and (6) provided:
   • (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. In Seablest Pty Ltd T/As Salamanca Executive Suites v V R and J J Smith, G L and W Lowman G and M Casimaty and Hobart City Council [1997] TASSC 36 Underwood J considered the effect of an order by Slicer J on upholding an appeal from a decision of RMPAT, which was made in the following terms:
   1. The determination of the Resource Management and Planning Appeal Tribunal dated 10 August 1995 be set aside.
   2. That the matter be remitted to the said Tribunal for reconsideration in accordance with the law.

Underwood J observed that Slicer J could have expressly ordered a rehearing pursuant to s 25(5). However, his Honour considered that, because the order set aside the determination of RMPAT, the order to remit the matter for reconsideration meant that it was for a rehearing and determination of the appeal from the council's decision: at [26] - [28].

1. The Full Court did not state whether its order was made pursuant to s 25(5) or (6). If the order was made in accordance with s 25(6), then the remitter would predicate that the entire decision of RMPAT was set aside. However, s 25(5) is broad enough to encompass remitter without recourse to s 25(6)(b).
2. An order setting aside the determination by RMPAT would have remitted the planning appeal at large. The order of the Full Court does not expressly set aside the determination by RMPAT, although clearly it must set aside the ultimate determination by RMPAT that the proposed development would comply with the Scheme.
3. The Court made no directions as to how the Tribunal is to proceed in respect to the remitted matter. The Court remitted the matter for determination in accordance with law without specifying a rehearing.
4. The matter was remitted by the Full Court "for determination in accordance with law". I have had regard to the authorities that I referred to in the passages set out above from the

1 See Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council [2022] TASFC 5 at [4] and Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay Holdings Pty Ltd [2023] TASCAT 90 at [46].

evidentiary decision, particularly the decision of Beaumont J in Repatriation Commission v Lionel Nation [1995] FCA 1277, and, in accordance with his Honour's approach, I have considered the reasons for judgment of the Full Court as an aid to determine the meaning of the orders.

1. The matter before the Full Court was the appeal to the Supreme Court. The matter determined by RMPAT that was not determined in accordance with law was the assessment against cl E10.7.1 P1(c)(iii) having regard to the correct meaning of 'site' as determined by the Full Court.
2. The Full Court did not expressly set aside the determination by RMPAT or order a rehearing. To permit the appellant to re-agitate grounds of the planning appeal which were determined by RMPAT and not then overturned by the Full Court's decision, or consequentially tainted by the incorrect definition of site, would permit the appellant to re- argue its case without having impugned RMPAT's determination of those unaffected grounds. Although the hearing of a planning appeal is de novo and issue estoppel will not apply: Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 [140], the possibility that the Tribunal might reach a different determination to that made by RMPAT of an issue unaffected by the appeal, on the same evidence, is undesirable in terms of comity and unfair to the second respondent.
3. I am satisfied that the matter remitted does not extend to the planning appeal at large.

1. At first glance the remitted matter appears only to extend to the assessment of the development proposal against cl E10.7.1 P1(c)(iii). However, RMPAT's consideration of the site extended beyond P1(c)(iii). Limiting the hearing to that criterion would not reflect the Full Court's determination and would prevent the Tribunal from properly assessing whether the development proposal complies with cl E10.7.1 P1(c).
2. Clause E10 of the Scheme establishes a Biodiversity Code. Clause E10.7.1 establishes development standards applicable within a Biodiversity Protection Area as defined in the Code. Clause E10.7.1 P1(c) establishes a standard for development in an area with high priority biodiversity values, as defined in Table E10.1.
3. Clause E10.7.1 P1(c) includes five criteria, each of which must be met to satisfy the standard:

Clause E10.7.1 - Development Standards - Building and Works

To ensure that development for buildings and works that involves clearance and conversion or disturbance within a Biodiversity Protection Area does not result in unnecessary or unacceptable loss of priority biodiversity values.

Clearance and conversion or disturbance must satisfy the following:

(a) ...

(b) ...

(c) if high priority biodiversity values:

(i) development is designed and located to minimise impacts, having regard to constraints such as topography or land hazard and the particular requirements of the development;

(ii) impacts resulting from bushfire hazard management measures are minimised as far as reasonably practicable through siting and fire-resistant design of habitable buildings;

(iii) remaining high priority biodiversity values on the site are retained and improved through implementation of current best practice mitigation strategies and ongoing management measures designed to protect the integrity of these values;

(iv) special circumstances exist;

(v) residual adverse impacts on high priority biodiversity values not able to be avoided or satisfactorily mitigated are offset in accordance with the Guidelines for the Use of Biodiversity Offsets in the Local Planning Approval Process, Southern Tasmanian Councils Authority 2013 and any relevant Council policy.

1. Although not each of P1(c)(ii), (iii), (iv) and (v) expressly refer to 'site', RMPAT's consideration of each may have been affected by its erroneous determination of what site meant.
2. RMPAT's consideration of P1(c)(ii) included reference to the site at which works are proposed: at [84]-[85] of the RMPAT decision. RMPAT accepted the evidence of an expert witness, Ms Blowfield. RMPAT used the hazard management area described by Ms Blowfield to determine the site: at [99].

1. P1(c)(iii) expressly refers to the site.
2. P1(c)(iv) requires consideration of whether special circumstances exist. The definition of 'special circumstances' in cl E10.3 incorporates references to the site.
3. P1(c)(v) requires consideration of the Guidelines for the Use of Biodiversity Offsets in the Local Planning Approval Process, Southern Tasmanian Councils Authority 2013 (the Guidelines). The key principles in the Guidelines include requirements relating to the site of the development which might be affected by RMPAT's erroneous determination of the meaning of site in P1(c): e.g. at [131] at footnote 19 and [132].
4. Grounds 2(b), (c), (d) and (e) of the planning appeal related to compliance of the development proposal with P1(c)(ii), (iii), (iv) and (v) respectively. The planning appeal grounds 3, 4 and 5 each challenge conditions of the permit imposed by RMPAT that relate to compliance with P1(c)(v), P1(c) and P1(c)(ii) respectively. I am satisfied that the ambit of the matter remitted includes each of these grounds.

1. The ambit of the matter remitted to the Tribunal by the Full Court for determination in accordance with law extends to, and is limited to, reconsideration of grounds 2(b), 2(c), 2(d), 2(e), 3, 4 and 5 of the planning appeal.
2. The hearing dates for the appeal were vacated following the evidentiary decision and the appeal currently stands adjourned. I will direct that it be listed for hearing.
3. Accordingly, the following direction is made:

1. The appeal is to be listed for hearing on a date or dates to be determined by the Principal Registrar or his delegate following liaison with the parties.