Farm owner wins appeal: permit for 34 assisted housing units inside a working farm set aside (TASCAT, 2026)

What happened

Native Point Pty Ltd owns and runs a farm on the South Esk River at Evandale that has been in the same family since the early 1800s. About 70 years ago the family gave or sold a parcel of the farm to the State government. That parcel sits entirely inside the farm and reaches the public road only by a right of carriage way (a legal right to travel over someone else's land) running between two of the farm's paddocks. The parcel was later used as a hospital, and about 30 years ago the government sold it to Launceston City Mission Inc, which now runs a 34-bed alcohol and drug rehabilitation facility there called Missiondale.

Loreto Community Housing Ltd, a social housing provider, partnered with Launceston City Mission to build 34 assisted housing units alongside the existing facility. Units would be leased under the Residential Tenancy Act 1997 to people on the State government's social housing register, with up to 20 per cent going to people who had completed the Missiondale program. Launceston City Mission would manage the tenancies. The proposal also involved upgrading the driveway along the right of way to a four-metre sealed pavement with gravel shoulders. A permit was granted, and the farm owner appealed.

The parcel is zoned Community Purpose. The surrounding farm, including the land the right of way runs over, is zoned Agriculture. The Tribunal found that the farm runs a mix of livestock and crops with rotation, so future crops cannot be predicted, and that past and possible future crops include controlled crops such as poppies. Stock is moved across the right of way about 10 to 20 times a year, each movement taking up to an hour, and at peak times farm machinery crosses up to 30 times a day. Spraying and similar work can be needed at short notice, which makes giving advance warning to residents impractical.

The Tribunal also found that the intended tenancy conditions gave little certainty. A tenant's right to quiet enjoyment of the premises under the Residential Tenancy Act overrides a lease term to the contrary, so the Tribunal doubted alcohol or drug use could be prevented; the Act's pet provisions meant a pet could not be guaranteed to be refused, which the provider's witnesses conceded; and a lease term against trespass would only trigger a breach notice with 14 days to fix it. Measures such as signage, orientation and education were described as unproven and not binding on residents. Traffic experts agreed the proposal would add 102 to 136 vehicle movements a day, taking the right of way to between 161 and 195 a day.

What each side wanted

The farm owner argued the proposal conflicted with its agricultural use of the land, created potential for land use conflict contrary to a State Policy, and failed the scheme's standards for traffic and vehicle access, and that in any event the Tribunal should refuse the permit using its residual discretion. The housing provider argued the scheme's requirements were met and the council's decision to grant the permit should be confirmed, including that the access road was a separate utilities use rather than part of the residential use, that an adjoining farm use is not confined or restrained if it can continue with simple mitigation measures, and that short or occasional delays to residents did not amount to a real interference. The council called no evidence of its own and largely adopted the provider's evidence and submissions.

What the tribunal decided

The Tribunal set aside the council's decision to grant a permit and, in its place, refused the housing provider's permit application. Two of the appeal grounds succeeded (the agricultural land performance criterion and the access clause), one was not determined, and two traffic grounds failed.

On costs, the Tribunal ordered that any application for a costs order be made in writing with supporting submissions within 21 days, and that if no application is filed each party bear their own costs. No money was ordered to be paid.

Why the tribunal decided it that way

The Tribunal's job on appeal is to make the correct or preferable decision under section 75(1) of the Tasmanian Civil and Administrative Tribunal Act 2020, so it was not bound by the council's decision or the material before it.

The Tribunal first rejected the argument that the access road was a standalone utilities use. Clause 6.2.2 of the scheme says a use that is directly associated with and subservient to another use on the same site falls in the same use class, and the driveway serves only the facility and the farm. The scheme's definition of a road also requires a permanent public right of passage, which this driveway does not have. So the access was a residential use, and the Agriculture Zone rules applied. Clause 21.3.1 P4 allows a discretionary residential use only where it is required as part of an agricultural use, or where the site cannot support agricultural use, cannot be combined with other agricultural land, and does not confine or restrain agricultural use on adjoining land. The Tribunal found the land is plainly capable of agricultural use, because the farm already uses the right of way to move stock and machinery between paddocks, and it rejected the argument that an adjoining use is not confined if it can continue with simple mitigation. Needing mitigation measures is itself a confinement. Spraying was the clear example: heavier use of the right of way would add burdens to how and when the farm can spray. P4 was not met, so the use was prohibited in the Agriculture Zone.

The Tribunal then considered clause 7.6.1, which lets a planning authority approve access or infrastructure across land in another zone where that access would be prohibited there, having regard to whether there is a practical alternative, the purpose and provisions of the other zone, and the potential for land use conflict. It held the clause was engaged, reading 'prohibited' in that clause in its ordinary sense of prevented or precluded, rather than only the scheme's formal prohibited designation, and following an earlier Tribunal decision on a similarly worded scheme. It read the clause through the State Policy on the Protection of Agricultural Land 2009, which is built into the scheme and provides context and purpose rather than extra criteria. Its principle 5 says residential use of agricultural land is consistent with the policy only where it does not confine or restrain agricultural use on or near that land. Although there was no alternative access, which weighed in favour of approval, the Tribunal found real potential for conflict: stock and machinery crossings against resident traffic, limits on growing controlled crops such as poppies or hemp, risks from residents' pets to livestock and the farm's accreditation with buyers, constraints on spraying and irrigating, and pedestrians spooking stock or trespassing, which matters most at lambing. Proposed management measures were too speculative, and some required the farm rather than the provider to act. The potential conflicts outweighed the lack of an alternative, so access was refused.

The two traffic grounds failed. On clause 21.4.3 P1, despite the length of the single-lane driveway and the big rise in use from a low base, the Tribunal found vehicle access appropriate. On the Road and Railways Assets Code, it accepted a basic auxiliary right-turn treatment was not required and that the proposal minimised adverse effects on road safety and efficiency. The Tribunal accepted there is a general need for social housing, and a specific need for housing for people leaving the rehabilitation program, but gave need little weight because there was no particular reason the development had to be at this site. The residual discretion ground was left undecided because it depended on how the use should be characterised, an issue the Tribunal had deferred and did not need to resolve.

What this means if you are in a similar position

If you are in a similar position, this decision shows how strictly the Agriculture Zone rules can be read when a non-farm use is proposed on or beside working farmland. The question was not whether the farm could still do some farming, but whether the new use would confine or restrain agricultural use at all, and the Tribunal treated the need for even simple mitigation measures as a confinement. It also shows that an access driveway is usually assessed as part of the use it serves, not as a separate road or utility, so the zone the driveway crosses can matter as much as the zone the buildings sit in.

The decision is also a reminder that intentions written into leases and house rules carry only the weight the law gives them. Terms about alcohol, pets and trespass were given little force because tenancy legislation gave residents rights that overrode or limited them, and because support measures such as signage and orientation were not binding. Where a planning rule says a decision maker must have regard to the potential for land use conflict, evidence about what might happen can be enough, and promises to manage problems later may not be.

In planning disputes of this kind, most people start by putting their concerns to the council in writing while the application is being assessed, setting out the specific conflicts with dates, frequencies and examples, and only then lodging an appeal or application with the tribunal if the decision goes against them.

How to apply: our step-by-step guide to a TASCAT application. More decisions: TASCAT cases and other civil disputes.

Source: Native Point Pty Ltd v Northern Midlands Council [2026] TASCAT 74 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.