Objector who filed a planning appeal 89 days late ordered to pay the council’s costs (TASCAT, 2026)

What happened

Kentish Council decided to grant a permit for a development application made by two other people, who were the second respondents in the appeal. The Council was required to notify the appellant of that decision, but first sent the notice to the wrong email address. After the appellant contacted the Council, it realised the error and re-sent the notice to the correct address. That correspondence told him that the appeal period was 14 days from the date the notice was served.

The appellant filed his appeal 89 days later. Because he was outside the 14-day period, he had to ask the Tribunal for an extension of time. He also applied for a stay of the permit, which depended on the extension being granted. He said certain things had been said to him that led him to believe the appeal period had already lapsed. The Council denied making those representations.

In the earlier substantive decision the Tribunal refused the extension and the appeal was dismissed. The Tribunal found that even if the representations had been made and relied on, the appellant had still not properly explained a delay of 89 days. He said he had been getting expert advice, but gave no detail of it beyond saying it came from land surveyors, planners and experts and that he had been told to get witness statements and lodge the application. He did not test what he said the Council had told him, did not get advice about the late service of the notice, did not explain how that expert advice related to his decision to appeal, did not explain how he learned he could apply for an extension of time, and did not get legal advice until after the appeal was filed. The only point in his favour was that the appeal itself might have had merit, as it claimed a failure to meet performance criteria.

The Council then applied for its costs. The appellant opposed that application. The second respondents did not ask for costs and made no submissions on the application.

What each side wanted

The Council argued it was fair and reasonable for the appellant to pay its costs: he knew about the 14-day limit from the notice, an extension of time is an indulgence that calls for a full explanation, and no satisfactory explanation for the long delay was given. It also said the material he put forward carried so little weight that it was frivolous, and that the extension application was without merit. The appellant argued that costs could only be ordered if his position was shown to have been unreasonable, relying on an earlier Tribunal costs decision, and pointed out that the merits of the appeal itself were never decided, drawing a comparison with cases that are discontinued before a hearing.

What the tribunal decided

The Tribunal ordered the appellant to pay Kentish Council's costs of and incidental to appeal P/2026/65, including both the application to extend time and the costs application itself.

Rather than send the costs to a formal taxation (a detailed line-by-line assessment), the Tribunal decided a lump sum was appropriate. The costs are to be calculated at 90 per cent of the scale of fees in Part 1 of Schedule 1 of the Supreme Court Rules 2000, as that scale stood at the date the relevant work was done. The Council must file and serve an itemised note of its party and party costs and disbursements, worked out on that basis, within 14 days. The appellant then has 7 days from receiving that note to file and serve any submissions about it, and the Council has 7 days from receiving his submissions to reply. There is liberty to apply, meaning either side can come back to the Tribunal about the process.

No dollar figure was fixed in this decision. The Tribunal noted the parties could still agree on the amount between themselves.

Why the tribunal decided it that way

Costs in the Resource and Planning Stream are governed by clause 12 of Part 8 of Schedule 2 of the Tasmanian Civil and Administrative Tribunal Act 2020. Clause 12(1) sets a general rule that each party pays its own costs. Clause 12(2) lets the Tribunal order one party to pay all or part of another party's costs if it is satisfied it is fair and reasonable to do so. Clause 12(3) lists matters the Tribunal may take into account, including whether the proceedings were brought merely to delay or obstruct, whether a party raised frivolous or vexatious issues, the relative merits of each side's claims, whether a party unnecessarily or unreasonably prolonged the proceedings or increased their cost, non-compliance with directions or with planning law, the nature, complexity and outcome of the proceedings, each party's capacity to pay, and any other relevant matter.

The Tribunal said it should look not only at whether any single one of those matters is enough on its own, but at the collective weight of the relevant matters. Following earlier authority on a materially identical provision, it treated the discretion as broad and unfettered: there is no need to show special or exceptional circumstances before the general rule gives way, and the Tribunal may also weigh matters not on the list. The discretion must still be exercised judicially, not arbitrarily or capriciously, and only on grounds connected to the proceeding.

The Tribunal rejected the appellant's argument that costs required proof that his position was unreasonable. The earlier decision he relied on examined the meaning of 'unreasonable' only because the party seeking costs there had argued the other side unnecessarily or unreasonably prolonged the proceedings under clause 12(3)(d). The statutory test is whether it is fair and reasonable to award costs, not whether the losing party behaved unreasonably. On merits, the Tribunal accepted that the merits of the appeal itself had never been decided, and that this can matter where a case is withdrawn or ends without a hearing, but held that the relevant question here was the merit of the extension application, which had been decided and had resulted in the appeal being dismissed.

Because the appellant failed to put forward proper reasons for a very significant delay, and failed to properly explain the reasons he did give, the Tribunal found it fair and reasonable that he pay the Council's costs. It considered confining the order to the extension application, but found the only steps taken in the appeal were the extension application and the stay application, which stood or fell with it, so the costs could not sensibly be separated out. On the amount, rule 18 of the Tasmanian Civil and Administrative Tribunal Rules 2021 allows costs to be taxed or paid as a lump sum. The Tribunal said lump sums avoid the delay and expense of taxation, and are also useful where a case is short and turns on narrow issues, so that a taxation would be out of proportion to the likely amount. It stressed that fixing a lump sum is an exercise in estimation, not precise arithmetic, and is not a de facto taxation.

What this means if you are in a similar position

This decision shows how time limits and costs work together in planning appeals. If you are in a similar position, the deadline to appeal a council permit decision runs from when you are served with the notice, and if you miss it you are asking the Tribunal for an indulgence rather than exercising a right. The decision shows that the length of the delay is only half the picture: what the Tribunal looked for was a detailed, specific account of what the person did in each part of the delay, including who they spoke to, what they were told and how that affected the decision to appeal. General references to having consulted experts, without detail, carried no weight.

It also shows that the usual position in this stream of the Tribunal, that each side pays its own costs, is not a guarantee. The test is simply whether a costs order is fair and reasonable, and the decision confirms there is no requirement to prove the other side behaved unreasonably, and no need for special or exceptional circumstances before the general rule gives way. Where costs are ordered, the amount may be set as a lump sum calculated against a court scale rather than by a detailed assessment, and the party seeking costs will usually be directed to file an itemised note that the other side can respond to.

For planning and permit concerns generally, the step most people take first is a clear written letter to the council setting out what they object to and what they want looked at, well inside any notice or appeal period, with a tribunal application only after that. None of this is advice about your own situation, and nothing here predicts how a tribunal would deal with it.

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

Source: Hardwicke v Kentish Council (No.2) [2026] TASCAT 128 (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.