and Willar Pty Ltd and Anor [2020] TASRMPAT 5

Environment and Planning - Environmental planning - Development control - Applications - Generally - Amendment to proposal - Whether amendment or new proposal - Revised plans submitted after public notification - Permit condition requiring compliance with revised plans.

Land Use Planning and Approvals Act 1993 (Tas), s 51(3A).

Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347; Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584; Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318; Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49, 109 LGERA 190; St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169, referred to.

Environment and Planning - Environmental planning - Development control - Applications - Notice and advertising - Advertisement - Re-advertisement - Tasmania - No statutory basis for re-advertisement.

Land Use Planning and Approvals Act 1993 (Tas), s 57(3), (4).

Judgment Number: [2020] TASSC 48

1. This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal concerning a proposal by the second respondent, Willar Pty Ltd ("the developer"), to develop and use a site in Battery Point for visitor accommodation. In June 2018 the developer applied to the Hobart City Council for discretionary planning approval for the proposed development and submitted documentation that included a set of plans. Thereafter the Council went through the usual process of notifying and advertising the application. During April 2019 the developer submitted revised plans to the Council. The Council repeated the process of notification and advertising. Subsequently a delegate of the Council granted a planning permit that included a condition requiring compliance with the revised plans. The appellants, Paul Tomaszewski and Rebecca Heath, appealed to the Tribunal. Amongst other things, they contended that the submission of the revised plans to the Council amounted to a fresh application for a permit, and that the Council was obliged to refuse it because visitor accommodation had become a prohibited use in the relevant area. The Tribunal rejected that argument and dismissed their appeal: P Tomaszewski and R Heath v Hobart City Council and Willar Pty Ltd and Anor [2020] TASRMPAT 5. This is an appeal from that decision.
2. In more detail, the sequence of events was as follows:
   • On 26 June 2018, the developer lodged with the Council its application for a permit, pursuant to s 57 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act").
   • On 28 June 2018 the developer paid the required fees to the Council. The Council then treated the application as a valid one within the meaning of s 51(1AC) of the LUPA Act.
   • On 1 July 2018, Interim Planning Directive No 2 ("IPD 2") ceased to have effect, and Planning Directive No 6 ("PD 6") commenced, pursuant to s 13 of the LUPA Act. The combined effect of that change and a provision of the Hobart Interim Planning Scheme 2015 was that visitor accommodation within the Battery Point Historic Precinct became prohibited, subject to a transitional provision in s 17(2) of the LUPA Act as then in force. Under that provision, an application for a permit for visitor accommodation made before 1 July 2018, when IPD 2 was still in force, could be granted if it had not been determined before that date.
   • On 9 and 16 July 2018, the Council requested the developer to provide additional information pursuant to s 54 of the LUPA Act.
   • On 20 August 2018, the developer provided the additional information to the reasonable satisfaction of the Council.
   • On 28 August 2018, the Council sent the owners and occupiers of adjoining properties letters notifying them of the application for the permit, pursuant to s 57(3) of the LUPA Act and reg 9 of the Land Use Planning and Approvals Regulations 2014 ("the regulations"). Those owners and occupiers included the two appellants.
   • On 30 August 2018, the Council posted a notice on each boundary of the site and gave notice in the Mercury pursuant to s 57(3) of the LUPA Act and reg 9 of the regulations.
   • The appellants made a representation to the Council pursuant to s 57(5) of the LUPA Act within the statutory period.
   • Pursuant to s 57(6A) of the LUPA Act, the Council requested several extensions of time for its decision on the application, and the developer granted all but the last of the requested extensions.
   • Council officers formed the view that the application should be refused on heritage grounds. That view was communicated to the developer in late February 2019.
   • On 17 April 2019, the developer lodged the revised plans with the Council.
   • In early May 2019, the Council repeated the process of notification and advertising. Letters were sent to the owners and occupiers of adjoining land, including the appellants, on 1 May. On 3 May the Council posted a notice on the site and published a notice in the Mercury.
   • Between 3 and 17 May 2019, twelve people, including the appellants, made written representations to the Council in relation to the revised proposal.
   • On 21 May 2019, the Council requested a further extension of time for a decision on the application. On 22 May 2019, the developer refused to grant that extension. Time had previously been extended to 24 May 2019.
   • On 24 May 2019, Council officers recommended the granting of a planning permit in respect of the revised proposal, and a delegate of the Council granted the permit as recommended.
   • The appellants appealed from the delegate's decision to the Tribunal. Their grounds of appeal included a contention that the granting of the permit was prohibited because IPD 2 did not apply to the revised proposal because it constituted a new s 57 application.
   • The Tribunal, which was constituted by Mr R Grueber, Mr M E Ball and Ms M Baird, dismissed the appeal. In its reasons at [18]-[32] it rejected the contention that the revised proposal was a new application to which IPD 2 did not apply.

1. The Tribunal's conclusions as to the relevant issue were stated in its reasons at [29] to [31], as follows:

"29 The amendments asserted by the Appellants to constitute a new application comprised further materials submitted to Council, in part in response to a request for further information made by the Council pursuant to s 54. The Second Respondent and the Council say that that further information did not alter the nature of the application, which remained an application for a permit for the partial demolition and development of an existing building and change of use to visitor accommodation at the site. They say therefore that the provision of the revised plans did not constitute a new application for a permit pursuant to s 51(1A) and the proposal constituted by the application made during the currency of IPD2 is required to be assessed in accordance with IPD2. The Tribunal agrees.

30 For the reasons advanced by the Council, the Tribunal accepts that LUPA contemplates changes to the particulars of a proposed development after the application is made. It appears to the Tribunal that requiring a planning authority to formulate a view as to whether additional information or changes to the initial proposal constitute acceptable variations or unacceptable amendments constituting a new application, as opposed to making a judgment as to whether fresh notification is required, is fraught with difficulty for the reasons referred to earlier. The Second Respondent and the Council proceeded on the basis that there was one application made on 26 June 2018 and that the Council expressly determined that application by granting a permit subject to conditions. Indeed, it would have been open to the Council to grant the permit subject to a condition requiring compliance with the original plans. The revised plans did not vary the use sought. The changes to the plans were made in response to heritage concerns raised by the Council - not to extend or enlarge the development. If they amounted to a significant difference from the original plans, the Council included a condition in the permit requiring substantial compliance with the revised plans after advertising and giving notice of the revisions, conforming with the approach to a significant difference identified in St Helens Area Landcare and Coastcare Group Inc v Break O'Day Council [[2007] TASSC 15[2007] TASSC 15; , 16 Tas R 169]. The application subject to the appeal before the Tribunal is the application made 26 June 2018. It therefore is to be considered in accordance IPD2 [sic].

31 The Second Respondent points out that the Appellants have not advanced any ground of appeal or pursued an argument that the Proposal does not satisfy the use standards set out in IPD2. It was not contended by the Appellants at hearing that the development did not comply with the standards in IPD2, its case stood or fell on whether IPD2 or Clause 11.3.2 applied. The Tribunal undertakes a de novo consideration of the application for a permit [Sandy Bay Developments v Loring [1991] TASSC 34 at [36] and [85]] but it is not obligated to go outside the issues raised by the parties."

1. Under s 25(1) of the Resource Management and Planning Appeal Tribunal Act 1993, appeals from the Tribunal to this Court are limited to questions of law. The appellants have relied on two grounds of appeal, which are numbered 2.1 and 2.2. They read as follows:

"2.1 The Tribunal erred in law at [29-31] of the Decision, in concluding that the development application the subject of the appeal to it was not confined to the application lodged with the planning authority on 28 June 2018 and which was notified, pursuant to s 57(3) of the Land Use Planning & Approvals Act 1993 (the Act) on 30 August 2018 in that it:

(i) made a wrong finding of jurisdictional fact that the revised plans referred to at [15] were provided by the applicant in response to a request made by the planning authority pursuant to s 54 of the Act;

(ii) failed to construe ss 51(1A), 51(1AB), 51(1C) [sic], 57(3), (4), (4A), (5) and (6) when read with s 51(3) as requiring the conclusion that once a valid application for a planning permit has been made to a planning authority, that application is required to be dealt with in accordance with the statutory decision-making process for which the Act provides and that once an application has been notified as required by s 57(3), it is not open to a planning authority to make a decision by reference to revised plans that are provided to it by an applicant at a later point in time; and/or

(iii) in failing to conclude that the Act does not permit alterations to be made to an application after it has been notified as required by s 57(3) and before a planning authority makes the decision that is required by s 57(6).

2.2 The Tribunal erred in law at [29-31] of the Decision in failing to conclude that the application the subject of the revised plans that were lodged with the planning authority on 17 April 2019 and of which notice was given pursuant to s 57(3) of the Act on 3 May 2019 was a new application for a development and use that was prohibited in that Interim Planning Directive 2 did not apply to it."

1. The appellants' principal contentions are as follows:
   • That after applying for a s 57 permit, a developer may initially make changes to the development proposal, provided those changes do not transform it into a new or different proposal.
   • That no such changes may be made by a developer after the application has been notified and advertised pursuant to s 57(3) of the Act.
   • That in this case the submission of revised plans by the developer after the process of notification and advertising had been completed amounted to a new application, which was itself notified and advertised in accordance with s 57(3).
   • That the Tribunal erred in concluding that there was one application, not two, and that it had been open to the delegate of the Council to grant a permit with a condition requiring the development to be in accordance with the revised plans.
2. The appellants do not contend that the developer's revised plans differed from its original plans to such an extent that the original development proposal was transformed into a substantially different one. It contends that it was not open to the Council to grant a permit pursuant to the June 2018 application that contained a condition requiring compliance with the revised plans only because the revised plans did not accord with the proposal that was notified and advertised under s 57(3).

1. By virtue of a definition in s 3 of the LUPA Act, the Council is a "planning authority". The scheme of the LUPA Act for applications for discretionary planning permits to be made and decided upon can be summarised as follows:

(i) A person may apply to a planning authority "for the granting of a permit for a use or development": s 51(1A).

(ii) Subject to exceptions of no present relevance, a planning authority "must not refuse to accept a valid application for a permit": s 51(1AB).

(iii) A valid application is "an application that contains all relevant information required by the planning scheme applying to the land that is the subject of the application": s 51(1AC).[1]

(iv) Subject to various provisions in the Act, the planning authority must either grant the permit or refuse to grant it not later than 42 days after the day on which it received the application: s 57(6)(b)(i).

(v) Subject to an exception of no present relevance, a planning authority that receives an application for a permit may "require the applicant to provide it with additional information before it considers the application": s 54(1).

(vi) If the planning authority requires the applicant to provide it with additional information, time does not run for the purposes of s 57(6)(b) "while the request for information has not been answered to the satisfaction of the planning authority": s 54(2).

(vii) When a planning authority receives an application for a permit under s 57(1), it may refuse to grant the permit without first giving any notification of the making of the application: s 57(2).

(viii) If that course is not taken, the planning authority must give notice of the application for the permit, unless it requires the applicant to give notice: s 57(3). Under reg 9 of the regulations, such notice is required to be given by advertising in a daily newspaper, displaying the notice at the planning authority's office, giving the notice to the owners and occupiers of all properties adjoining the land that is the subject of the application, and displaying the notice on the land as near as possible to each public boundary. The notice is required to name a place where a copy of the application, and of all plans and other documents submitted with the application, will be open to inspection by the public: s 57(4).

(ix) Any person may make representations to the planning authority relating to the application during a period of 14 days, commencing on the date on which the notice is given, or such further period not exceeding 14 days as the planning authority may allow: s 57(5).

(x) In determining the application, the planning authority must take into consideration the matters set out in representations made during the period referred to in s 57(5): s 51(2)(c).

(xi) Prior to determining the application, the planning authority may facilitate mediation between the applicant and any persons who have made representations: s 57A.

(xii) The period within which the planning authority must decide to refuse or grant the permit may be extended by agreement between the planning authority and the applicant: s 57(6)(b) and (6A). Under those provisions there may be more than one extension, but extensions may not be agreed upon after the time has expired.

(xiii) If the planning authority fails to determine the application within the 42 day period and any extension thereof, it is deemed to have decided to grant the permit on conditions that are to be determined by the Tribunal: s 59(2). In that situation, the applicant may apply to the Tribunal for an order determining the conditions on which the permit is granted: s 59(3). However the planning authority retains the power to make a decision to grant or refuse the permit at any time before such an application is lodged: s 59(7).

(xiv) Subject to an exception of no present relevance, a planning authority must, within prescribed time limits, "grant or refuse to grant a permit": s 57(6). The decision of the planning authority is to be made by reference to the provisions of the planning scheme in force at the date of the decision or, as appropriate, the provisions of various other instruments: s 51(3). (If, as asserted by the respondents, the submission of the revised plans in this case did not amount to a fresh application for a permit, then that provision was superseded by s 17(2) as then in force, and the planning authority was required to apply IPD 2.)

(xv) A s 57 permit "may be subject to such conditions or restrictions as the planning authority may impose": s 51(3A).

(xvi) After a s 57 permit has been granted or refused, various parties have the right to appeal to the Tribunal under s 61. In particular, any person who made a representation under s 57(5) may appeal pursuant to s 61(5).

1. The LUPA Act does not expressly require plans to be submitted when a person applies to a planning authority for a s 57 permit. Section 51(1AC) requires such an application to contain "all relevant information required by the planning scheme applying to the land". Plans are required at that stage only if there is a requirement for them in the applicable planning scheme. In practice, developers almost invariably lodge plans at the time of making their applications. Section 57(4) assumes that developers will commonly submit plans. It requires each s 57(3) notice to name a place where, amongst other things, "all plans ... submitted with the application" will be open for inspection by the public. In theory, unless a planning scheme contained a requirement for the submission of plans, a developer could submit an application describing a proposed development in general terms, without plans, and at a later stage provide plans which might become the subject of a permit condition.
2. The LUPA Act is silent as to the situation where an applicant, after making an application for a s 57 permit, makes changes to the proposal for the development for which the permit is sought. There is no provision for the amendment of applications, nor for the notification process under s 57(3) to be repeated. Counsel for the Council informed me that there is a common practice whereby councils repeat the statutory notification process if an applicant changes a development application after the statutory notices have been given. He also acknowledged that the fact that that practice is long-standing and efficacious does not make it lawful.

1. There is a body of case law that supports the proposition that it is open to a statutory authority to grant a permit for a use or development which differs from the use or development originally proposed, provided the difference is not so great that the applicant is seeking a permit for something substantially different from what was originally proposed.
2. In Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347, a developer applied for a permit to use certain land as a shopping complex, submitted plans, and went on to submit a series of modified plans on several occasions after the public notification process had been completed. The relevant legislation was very similar to the LUPA Act. Brooking J held that the responsible authority had the power to grant the application, as publicly notified, subject to a condition requiring compliance with the final set of modified plans. His Honour drew a distinction between a modified proposal and a proposal substantially different from what was originally proposed. His Honour said the following at 360:

"Whatever may be the position where notice of an application is not given or published pursuant to s18B(1), in my judgment where such notice is given or published the 'application', which the responsible authority may proceed to consider further only once it is satisfied as mentioned in s18B(3), is the application as constituted at the latest at the date of the giving or publication of the notice the subject of s18B. In my opinion, an applicant may not place on exhibition for the benefit of potential objectors one application for a permit and then proceed to ask the responsible authority to regard as his application, not that which was exhibited, but an application which differs from it in some respect or respects, even though minor. To say this is not, however, to say that the applicant may not, after the date of the giving or publication of notice under s18B, furnish the responsible authority with some additional document, such as an amended plan, and invite the responsible authority to determine to grant a permit which is, for example, for a development in accordance with that amended plan. But he does this not by way of varying his original application, but by way of inviting the responsible authority to grant his original application subject to the condition that the original plan be amended in the respect concerned. In deciding whether it has power to accede to this invitation, the responsible authority will have to consider whether the effect of the amendment is such that the original use or development proposed is being permitted subject to a condition or, on the other hand, a different use or development is being permitted."

"In my opinion, a power to grant a permit subject to conditions authorizes 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 it is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit. Whether more may be countenanced by way of limiting the development or use, as opposed to extending it, before the point is reached at which alteration ceases to be modification and becomes transformation, is a question which I find it unnecessary to decide."

1. The distinction between a modification and a new application has been recognised in some Tasmanian cases. In obiter dicta in Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49, 109 LGERA 190, Underwood J (as he then was) said at [46]:

"46 Obviously, if a development application determined by a planning authority is substantially different from that in respect of which public notice was given and not as described in the documents open to public inspection, there has been non-compliance with the Act, s57(3) and (4). It is equally obvious that if only inconsequential changes are made to a development application or further detail supplied after notice has been given, there has been compliance with s57(3) and (4)."

1. In St Helen's Area Landcare & Coastcare Group Inc v Break O'Day Council (No 2) [2005] TASSC 135, Tennent J held that it had been open for the Tribunal to hold that a revised plan amounted to a modification of a proposal as distinct from a proposal for a substantially different development. She relied on Addicoat v Fox (above), and on the decision of Anderson J in Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442, in which his Honour followed that case. An appeal from her Honour's decision was unsuccessful: St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169. In that case Crawford J (as he then was) said, at [13]:

"An appeal from the Tribunal may only be based on an error of law by the Tribunal, and if the Tribunal's view that the differences between the development granted by it and the development for which application was made were not sufficient to prohibit the granting of the permit, the decision was not an error of law unless, at the very least, it can be concluded that as a matter of law, and not merely judgment, the decision was not one that was reasonably open to the Tribunal."

1. In City of Marion v Becker (1973) 6 SASR 13, the Full Court of the Supreme Court of South Australia considered a question whether that State's Planning Appeal Board had the power to approve an amended plan of subdivision. At 45, Bray CJ drew a distinction between "a fundamental alteration of a plan such as, in effect, to turn it into another plan" and "an alteration which left it fundamentally the same plan". At 58, Hogarth J expressed the view that the relevant legislation provided "a code which contemplates the proposal plan as originally submitted may be subject to some variation in the course of the proceedings and consideration". He went on to say, "The question whether a plan in its final form is so different from the plan as originally submitted as to lose its identity and become a new plan seems to me to be one of degree".
2. In Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584, a developer had unsuccessfully applied to a municipal corporation for development consent for the establishment of a shopping centre. On appeal to that State's Planning Appeal Tribunal, the tribunal had refused to accept substituted plans. O'Loughlin J, with whom Zelling and Cox JJ agreed, said at 591:

"Both the old Act and the new Act are silent on the subject of 'amendments' to applications for planning consent. Nevertheless, it is clear from the principles stated in City of Marion v Becker that amendments could be made to proposals under the old Act, in fact if not in form. The way in which such amendments were made, in a proper case, was by the use of the power to attach conditions to a planning authority's consent under s 36. ... Obviously there could be a question whether a proposed condition required such a radical change in the applicant's original proposal that it could not be said that it was the original proposal that was being approved. Another way of expressing it is to say that amendments to proposals could be made under the old Act as long as the purported amendments were not such as to make it a 'substantially different proposal from that which had been submitted to the Council and of which public notice has been given'." [Footnote omitted.]

1. In Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318, a developer had applied to the Adelaide City Council for approval of plans to develop a site, and had amended the plans before the council referred the application to the Adelaide Planning Commission. King CJ, with whom Perry J agreed, said at 326-327:

"In City of Marion v Becker (1973) 6 SASR 13; and Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584, the court dealt with the limitations on the power of the Planning Appeal Board under the then planning legislation, to permit amendments on appeal. It was concerned with the nature of the planning appeal process and not the power of the primary planning authority to permit amendment. Nevertheless I think that the distinction made in those cases is valid for present purposes. Amendments are permissible unless the amendments are so extensive as to change the character of the development so that it is not, in essence, the same development as that for which approval was originally sought."

The appeal to the Full Court was dismissed on that basis. Millhouse J dissented on the basis of an unrelated ground of appeal.

1. The distinction between an amended development proposal and a new proposal has also been drawn in cases in New South Wales and Western Australia: Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Court of Appeal); Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71 at 85 (Murray J); Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8, 137 LGERA 129 at [47] (E M Heenan J); Hamersley v Bartle [2013] WASC 191 (Chaney J). In the last of those cases, Chaney J said at [41]:

"41 The capacity of a planning authority to consider amendments to a proposal for development, or to impose conditions on an approval of a development, is well accepted subject to the limitation that neither the amendment, nor the conditions, are permissible if the effect is to render the proposal a different proposal from that originally put forward. That statement is, of course, subject to any contrary provision found in any particular legislation pursuant to which a decision is to be made."

1. His Honour went on to discuss Addicoat v Fox, and to suggest that it should not be followed if it could not be distinguished, saying at [44]:

"44 If the conclusion reached by Brooking J as to the inability of the responsible authority to consider any amendment to a proposal following advertising can be applied in the different legislative context of this matter I would not be inclined to follow Addicoat. The conclusion is inconsistent with the observations of E M Heenan J in Gnarabup, and leads to inconvenience, as well as potentially hindering the achievement of a good planning outcome. It is, with respect, an artificial construct to acknowledge that the responsible authority can be requested to consider approving the original application subject to a condition that it comply with an amended plan, but cannot be requested to consider an amendment to the original application represented by the amended plan."

1. With respect, I do not share his Honour's views. As O'Loughlin J pointed out in Hancock Development, the ability to attach conditions requiring compliance with revised plans enables a statutory authority to give effect to amendments "in fact if not in form". There may be an artificiality to achieving a particular result by imposing a condition so as, in practical terms, to give effect to an amendment when none is permitted. However I do not see this way of doing things as likely to hinder the achievement of good planning outcomes. If amendments to proposals, as distinct from the substitution of new proposals, were permitted, I cannot see how any sort of planning outcome would be available that is not available through the mechanism of imposing conditions.
2. The provisions of the LUPA Act relating to the discretionary granting of permits for the development and use of land were intended to provide a simple system under which decisions would be made in a timely manner. In the relevant second reading speech in the House of Assembly on 5 May 1993, the Minister for Environment and Land Management, Mr Cleary, said (Hansard, at 114):

"The legislation establishes a simplified process for the granting of permits in relation to matters which, under the relevant planning scheme, require some form of approval."

1. As to time limits, the Minister said (Hansard, at 115):

"The legislation provides time limits in relation to development applications and, for the first time, establishes an effective mechanism to ensure compliance with those time limits.

Where the time frame is not met, an applicant will have the right to approach the appeal tribunal to have the conditions of the approval determined by the tribunal. The approval itself will be deemed to be granted.

The planning authority, or the agency which is consulted, which is responsible for the failure to meet the time frame, will be obliged to meet the costs of the appeal hearing, and the costs of any parties to that hearing. This will ensure that planning authorities and State agencies take seriously the obligation to meet the decision-making time frames established by this legislation."

1. The LUPA Act has never made provision for the amendment of a development application. It has always contained a provision whereby conditions could be imposed when a s 57 permit was granted. The power to impose such conditions was originally provided for in s 57(4) but, as a result of an amendment in 1995, is now provided for in s 51(3A).
2. If there were a statutory power for a planning authority to permit the amendment of a development application, as well as a power to impose conditions, the system of determining development applications would be one step more complicated. Without a statutory power to permit amendments, a planning authority has only one decision to make. If there were a power to permit amendments, a planning authority would potentially have two decisions to make - whether to permit the amendment, and then whether to grant the amended application. That would be inconsistent with the objectives of simplicity and timeliness.
3. There is nothing in the LUPA Act that expressly precludes a planning authority from granting a s 57 permit subject to a condition requiring compliance with revised plans. In the light of the cases that I have referred to, it must be accepted that a planning authority has no such power when the revised plans would transform the originally proposed development into something substantially different. Subject to that restriction on its power, there is no reason why a planning authority should not have the power to grant a permit with a condition requiring compliance with revised plans. Often the process of public notification and the making of representations will result in neighbours and/or members of the public expressing concerns about particular aspects of a proposed development. When that occurs, developers sometimes become willing to make minor design changes, or even to reduce the scale of proposed developments. If a developer could not modify a development proposal to take account of concerns expressed in representations, and instead could only make a fresh application and repeat the public notification process, that would be inconsistent with the objectives of simplicity and timeliness, and would create an obstacle to the achievement of good planning outcomes. On the other hand, the objectives of simplicity, timeliness and good planning outcomes will be promoted if planning authorities have the ability to grant permits for modified developments without a need for the repetition of the statutory processes.
4. It follows that the provisions of the LUPA Act conferring statutory powers on a planning authority to grant permits subject to conditions should not be interpreted as being subject to an implied restriction in relation to all revised plans put forward after the completion of the s 57(3) notification process. It follows that ground 2.1(ii) and (iii) must fail.
5. In 1997 the LUPA Act was amended by inserting s 57A, which provides for mediations to be conducted in relation to permit applications before their determination by planning authorities. Obviously it was envisaged that some mediations would result in compromises being reached between developers and persons who had made representations under s 57(5), or between developers and planning authorities. The introduction of s 57A is entirely consistent with a planning authority having the power to give effect to a compromise by imposing a permit condition that would vary the proposed development without transforming it into a different development, even if that resulted in the adoption of revised plans that had never been publicly exhibited as part of the s 57(3) process.

Repetition of the statutory notification process

1. Addicoat v Fox (above) was relied on by counsel for the appellants in contending that the notification provisions in s 57(3) and (4) of the LUPA Act should be interpreted as providing for the notification of a permit application only once. As I have said, the legislative scheme that was considered in that case closely resembled that of the LUPA Act. Section 17 of the Town and Country Planning Act 1961 (Vic) empowered a "responsible authority" to grant a permit for use or development where an interim development order operated. Section 18 of that Act required every application for a permit to be made in writing to the responsible authority in accordance with regulations. There was a regulation that obliged an applicant, when requested in writing by the responsible authority, to provide such further information "as it considers necessary to deal with the application". Section 18AA empowered the responsible authority to "refuse to consider an application for a permit on the ground that it requires further information". Section 18B required that public notice be given where the responsible authority considered that the grant of a permit might cause substantial detriment to any other person. Under s 18B(3), the responsible authority was required not to consider the application until satisfied that the notification provisions had been complied with and a period of at least 14 days had expired. Persons who might be affected by the grant of a permit were entitled to make written representations within that 14-day period under s 18B(2)(d).
2. I accept that it was implicit in what Brooking J said in Addicoat v Fox at 360 (quoted above) that the statutory process of giving and publishing notices would be undertaken only once in relation to each application, and that any amendment, not amounting to a transformation, could be dealt with by way of the imposition of conditions.
3. The respondents contend that s 57(3) and (4) should be interpreted as permitting more than one round of notifications in respect of a permit application. Reliance was placed on s 20(a) of the Acts Interpretation Act 1931. That provision reads as follows:

"Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed -

1. It is significant that s 4(1) of the Acts Interpretation Act makes the provisions of that Act inapplicable in certain situations. Under s 4(1)(a), the provisions of that Act are required to be "applied in the interpretation and construction of every Act ... except in so far as ... any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act". Under s 4(1)(b), there is a further exception when "the interpretation which any provision of this Act would give to anything contained in such particular Act ... is inconsistent with the context thereof".
2. The relevant subsections - s 57(3) and (4) - do not confer powers. They impose duties. Section 57(3) says that the planning authority "must give notice, as prescribed, of an application for a permit". Section 57(4) goes on to specify information required to be contained in each such notice. There is nothing in the language of these subsections to suggest that a planning authority might have a discretionary power to repeat the process of giving the statutory notices if that seems to be a good idea, or that, having discharged its duty to give the statutory notices under s 57(3) once, circumstances might arise that result in it having a duty to repeat the statutory notification process.
3. If, after the modification of a development proposal in a particular case, there was reason to think that members of the public might wish to make further representations relating to the modified proposal, or that the planning authority might benefit from additional representations, that might be a powerful indication that the revised proposal was one for a substantially different development, rather than a modification of the development originally proposed.
4. If a planning authority had a power or a duty to repeat the process of giving and publishing statutory notices, exhibiting plans, receiving representations, and considering them, that would be inconsistent with the objectives of simplicity and timeliness in the determination of development applications. If the legislation were interpreted as permitting the repetition of those statutory processes, there could be no limit to the number of times a developer might revise its plans with the result that those processes would have to be repeated.
5. Having regard to the scheme of the legislation, the intention that the decision-making system be a simple one, the objective that decisions on s 57 applications be made in a timely manner, and the context of s 57(3) and (4), I am satisfied that s 20(a) of the Acts Interpretation Act does not apply to those subsections. The effect of the subsections is that the procedures as to notification, public display, representations, and consideration of representations is a process that the LUPA Act requires to be undertaken only once in relation to each s 57 application.
6. When a planning authority receives amended plans in relation to a pending s 57 application, it is not prohibited from inviting further representations from the owners and occupiers of adjoining properties or from the general public in whatever manner it chooses. However no statutory consequences attach to the making of representations in that situation. Any such representations are not made pursuant to s 57(5). It follows that the planning authority is not obliged by s 51(2)(c) to take them into account when determining the application, though it may. It also follows that no appeal rights under s 61(5) can arise in relation to the making of such a representation, although the maker may have a right of appeal under that subsection as a consequence of having made an earlier representation that was pursuant to s 57(5).

1. The developer's revised plans were lodged with the Council on 17 April 2019 under cover of a letter from its planning consultant. Section 51(1AA) of the LUPA Act requires a s 57 application to be in a form, if any, approved by the Tasmanian Planning Commission. I understand that the Commission has approved a form of application. No such form was sent to the Council by or on behalf of the developer in relation to the revised plans.
2. Fees are payable to the Council when a s 57 application is made to it, but no such fees were paid by the developer in relation to the revised plans.
3. There was correspondence between the developer's solicitor and the Council about the redesign of the proposed development prior to the lodgement of the revised plans. In a letter dated 20 November 2018, the solicitor argued that "as long as any amendment is re-advertised thereby affording any interested person an avenue to make a representation, I see no barrier to amending the application". On 26 November 2018 a Council officer sent an email to the developer's planning consultant saying that the Council would accept the revised proposal as a continuation of the original application, and that the application "would need to be re-advertised to allow for representations on the revised proposal".
4. Looked at in isolation, evidence that the Council repeated the procedures required by s 57(3) and (4) after receiving the revised plans would perhaps support an inference that the developer made a new s 57 application based on those plans. In the light of the evidence that no new application form was lodged, that no fees were paid, and that there was an understanding on the part of both the developer's solicitor and Council officers that the revised plans were being submitted in relation to the s 57 application dated 26 June 2018, the only appropriate finding was that the lodgement of the revised plans did not constitute or form part of a second s 57 application.
5. Ground 2.2 asserts that the Tribunal erred in law in failing to conclude that "the application the subject of the revised plans that were lodged with the planning authority on 17 April 2019 ... was a new application ...". For the reasons stated, ground 2.2 must fail.

1. In its reasons at [29], quoted by me at [3] above, the Tribunal said:

"The amendments asserted by the Appellants to constitute a new application comprised further materials submitted to Council, in part in response to a request for further information made by the Council pursuant to s 54."

1. What the Tribunal said about a request for further information was incorrect. Requests for additional information were made pursuant to s 54 of the LUPA Act in July 2018, but the developer provided the additional information to the reasonable satisfaction of the Council in August 2018. The revised plans were not lodged until April 2019.
2. Ground 2.1(i) asserts that the Tribunal made a wrong finding of jurisdictional fact that the revised plans were provided in response to a s 54 request. The appellants' argument as to this ground, as I understand it, can be summarised as follows:
   • Any further information provided by a developer pursuant to s 54 forms part of the material referred to in s 57(4) as "all plans and other documents submitted with the application". The additional information must therefore be included in the material that is open to inspection by the public as contemplated in s 57(4).
   • The time for making a decision on a s 57 application does not run whilst a s 54 request is outstanding: s 54(2).
   • Because the additional information is required to be made available for public inspection, a planning authority is required not to embark on the giving and publishing of notices under s 57(3) until that material is received.
   • Once valid s 57(3) notices are given and published, a developer may not change the particulars of a proposed development.
   • If, as mistakenly believed by the Tribunal, there was an outstanding s 54 request when the Council first gave and published s 57(3) notices, then the requirements of s 57(3) and (4) were not satisfied until the second series of notices were given and published in early May 2019. If that belief had been correct, then the Council would have had the power to grant a permit for the development shown in the revised plans.
   • Because the additional information had been provided before the first round of s 57(3) notices were given and published in August 2018, those original notices were valid, and the Council did not have the power to grant a permit in respect of a later revised proposal.
3. That argument is flawed. First of all, a planning authority does have the power, through the imposition of a permit condition, to grant a permit that requires compliance with revised plans, for the reasons stated above. Further, there is nothing in the LUPA Act to preclude a planning authority from making a request for additional information from a developer pursuant to s 54 after the statutory notification process has been completed.
4. It is true that the Tribunal made an error when it asserted that the amendments of April 2019 were in part a request for further information pursuant to s 54. However that error was inconsequential, and was not an error of law because it did not relate to any jurisdictional fact. Although the additional information was furnished to the Council in August 2018, it remained open to the developer to submit amended plans to the Council after the completion of the public notification process, and, for the reasons stated above, it was open to the Council to grant a permit pursuant to the June 2018 application with a condition requiring compliance with the revised plans lodged in April 2019. Ground 2.1(i) must therefore fail.

[1] It appears that that subsection was erroneously referred to in ground 2.1(ii) as s 51(1C). There is no s 51(1C).