The decision of Alfeldi v Glamorgan Spring Bay Council (2024) TASCAT 69 (Alfeldi) was recently handed down by the Resource and Planning Stream of the Tasmanian Civil and Administrative Tribunal (Tribunal).
The decision is of assistance to planning authorities when assessing development applications and determining conditions to be placed on a permit. It also provides insights more broadly to town planners when preparing development applications for their clients.
Background
The case was an appeal of the decision of the Glamorgan Spring Bay Council to refuse to grant a planning permit for the use and development of, among other things, eight cabins (visitor accommodation use) and a café (food services use). Both uses are discretionary.
A fundamental element of the proposal is the establishment of a vineyard, with the overall proposal being an agritourism enterprise. The vineyard did not require a permit under the provisions of the applicable planning scheme, indeed a permit could not be granted for this use. Therefore, approval for the vineyard was not sought in the development application.
The proposed site was zoned “Rural”. The zone provided that the visitor accommodation and food services use could only be approved if the uses required a rural location for “operational reasons”.
Issue
The developer relied upon the future establishment and maintenance of the vineyard and its association with the visitor accommodation and food services to justify these uses occurring in the rural location.
However, it was argued by the parties opposing the proposal that there was no guarantee that a vineyard could or would be established on the site, and therefore, a planning permit should not be granted.
For the proposal to proceed, there needed to be certainty that the vineyard would be established and maintained while the visitor accommodation and café were in operation. This was in the context that the vineyard did not form part of the development application as it did not require a planning permit.
Solution
The ultimate solution put forward on behalf of the developer, which was accepted by the Tribunal, was to require a permit condition to the effect that the visitor accommodation and food services could only operate if a vineyard is established and maintained at the site.
Key takeaways
While there were many issues addressed in the appeal, some of the key takeaways are as follows:
- it can be permissible to include conditions on a planning permit that require certain uses to be established at the site that would not ordinarily require planning approval.
In Alfeldi the Tribunal held that it was appropriate and within power to impose a condition requiring that a vineyard be established and maintained in order for the visitor accommodation and food services uses to operate;
- the viability of a proposal is not a relevant matter when determining whether use or development should be approved or refused. For example, the output of the vineyard (i.e. crop yield) or the profitability of the proposal were not relevant considerations; and
- when preparing development applications, it can be relevant to include information on proposed or existing uses that are planned to operate in conjunction with the use and development being applied for (even where they do not independently require a planning permit). This information could help inform a basis for the permit to be approved.
The Tribunal’s decision can be viewed here.
More information
If you would like to discuss the implications of the decision, please contact:
| Anthony Spence SC Principal M: 0400 545 503 E: aspence@pageseager.com.au |
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| Victoria Lightfoot Associate T: (03) 6235 5176 E: vlightfoot@pageseager.com.au |
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Published: 20 June 2024
