Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 6, 7 and 68

Planning and Development Act 2007, ss 7, 50, 56, 120, 131B, 144-147, 243 and 253, and Chapter 7 (in particular Division 7.2.3)

Planning for Bushfire Risk Mitigation General Code

Cases: Donohue v ACT Planning & Land Authority

[2013] ACTSC 234

[2007] ACTAAT 20

Lourandos & Yiannokopolous and ACT Planning and Land Authority & Ors [2011] ACAT 25

Secretary, Department of Social Security v Hodgson

[1992] FCA 338; (1992) 108 ALR 322

Walkington & Ors & ACT Planning and Land Authority

[2010] ACAT 81

CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: AT 13/42

(i) replacing Condition A2 with the following words:

That within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant/Lessee must lodge with the planning and land authority a plan prepared by a qualified surveyor showing the dimensioned boundaries of the part of the block for the proposed use of "group or organised camp", generally in accordance with Attachment 2 of this Decision and wholly within the part of the block zoned as NUZ2. The plan shall be attached to the Instrument of Variation which will be registered at the Office of Regulatory Services;

(ii) replacing Clause 3(n) of the provisions of the amended Crown lease with the following words:

3(n) That the Lessee shall at all times during the said term of the lease:

(i) Take sole responsibility for the maintenance and repair of the access track over Block 145 District of Paddys River and Block 130 District of Paddys River; and

(ii) Maintain and repair the access track over Block 145 District of Paddys River and Block 130 District of Paddys River.

1. The ACT Rural Land Holders Association (AT 13/42), David and Margaret Whittem (AT13/43) and Michael Shanahan (AT13/44) ("the applicants") have each sought review by the ACT Civil and Administrative Tribunal ("the tribunal") of a decision of the ACT Planning and Land Authority ("the respondent") to approve, subject to conditions, a proposal to vary the Crown lease of Block 241 Paddys River ("the subject land") by adding to the purpose clause the words "group or organised camp". Mr Angus Robertson, an adjacent landholder, was joined as a party. The application to vary the lease (DA 201222155) was initially lodged by CBRE(V) Pty Ltd on behalf of the lessee, in this case the ACT Government, under the authority of Mr Ian Thompson of the ACT Health Directorate on 5 July 2012, seeking to add the words "adjunct uses" to the purpose clause. In an accompanying document, the words to be added were set out as "and adjunct thereto a cultural facility and educational establishment limited to 1016 square metres Gross Floor Area and the provision of temporary residential accommodation limited to a maximum of sixteen (16) residential 'students'" (T452).
2. Following discussion with officers of the respondent (T419) an amended DA 201222155A was lodged under s 144A of the Planning and Development Act (2007) ("the Planning Act") which sought to vary the proposed change to "Group or Organised Camp" (T393) which was said to "better reflect the proposed use of the site" and which also was a permitted use in the NUZ2 Rural Zone Development Table (T481). The Territory Plan defines "group or organised camp' as 'the use of land for the purpose of providing short term share accommodation and recreation facilities by a body of persons associated together for the physical, cultural, spiritual or intellectual welfare of the community".
3. The reason for seeking the variation to the lease was to enable the construction on a portion of the block of a facility known as the Ngunnawal Bush Healing Farm ("NBHF"). This facility is the subject of a separate Development Application (DA 201221878) which is presently under consideration by the respondent but is on hold pending the outcome of this review.
4. The applicants' concerns are essentially fourfold - first, that the zoning of the subject land does not permit the use proposed in the lease variation; second, that what is proposed to be developed is not a "group or organised camp"; third, that the subject land is not a suitable location on a number of grounds for a development of the kind proposed; and fourth, that there would be unacceptable social and environmental impacts.
5. The Tribunal is not charged with making any decision about the facility proposed in DA 201221878. Nevertheless, it is necessary to consider what is proposed to be built and how it will function in order to consider the merits of the applicants' concerns. The Tribunal had before it documentation relating to DA 201221878, which contained information to enable it to gain a general understanding of the proposed NBHF.

1. The three matters, being identical in their intent, were heard together by the Tribunal on 20, 21 and 22 November 2013 following an extended inspection of the site and surrounding properties on 19 November attended by the parties and their representatives and some witnesses.
2. The ACT Rural Land Holders Association was represented by its chairman Mr Tom Allan. Mr and Mrs Whittem were self represented, as was Mr Robertson. Mr Michael Shanahan was represented by Mr S. Hausfeld of Counsel. The respondent was represented by Mr G. McCarthy of Counsel.
3. The Tribunal had before it the documents provided by the respondent relevant to the decision under review ("the T Documents") and the documents relating to DA201221878 ("the ST documents"), together with Statements of Facts and Contentions submitted by the parties and witness statements and other documents tendered in evidence during the hearing.
4. Evidence for the applicants was given by Mr David Whittem who, together with his wife, is the proprietor of Block 24, Paddys River, which he has been managing as a rural enterprise since 1985 and which adjoins the subject land to the south-west; by Mr Michael Shanahan, the proprietor of Tidbinbilla Station which adjoins the subject land generally to the west; by Mr Angus Robertson, the lessee of Block 144 Paddys River which adjoins the subject land to the south-east; and by Mr Paul Cohen, an experienced ACT planning consultant.
5. Evidence for the respondent was given by Mr Aaron Oshyer who is Senior Manager - Merit Assessment of the respondent and who manages the assessment and determination of Merit Track development applications, but who had not been involved in the assessment of this application; and by

Ms Susan Messer, Manager, Development Applications (Leasing) of the respondent but who too had not been directly involved in the assessment of this application. 6. Towards the end of the hearing, Mr McCarthy sought leave to submit additional evidence from Ms Roslyn Brown, a founding member the NBHF Advisory Board, in order that the Tribunal might have first-hand evidence of the nature and purpose of the NBHF proposal. After seeking the views of the parties, the Tribunal gave leave for Ms Brown to make a written submission, on the understanding that should any party wish to cross examine her following receipt of the submission, the Tribunal would resume the hearing. In the event, no request for a further hearing was made. 7. The allocated time for the hearing having elapsed, written submissions were subsequently provided by the parties by 13 January 2014.

1. The site of the proposed Ngunnawal Bush Healing Farm is within Block 241 Paddys River, a rural property of approximately 369 hectares at 425 Tidbinbilla Road and known as "Miowera". This property was purchased by the Australian Capital Territory through the ACT Government Health Directorate in August 2008. It is proposed that buildings for the NBHF will be located on the site of the old Miowera homestead. The lessee will be required to enter into a Land Management Agreement with the ACT Conservator of Flora and Fauna incorporating the proposed development.
2. Documents prepared by CBRE Town Planning as part of DA 2012221878 describe the current proposal for the first stage of the NBHF as being "for the provision of up to eight clients requiring treatment to be accommodated on a temporary basis. Accommodation will be provided in two separate living pods to ensure separate facilities for men and women. A master plan has been developed for the facility which considers a future potential two living pods, providing a maximum number of 16 clients that could be accommodated and treated at any one time". Building plans provided with the development application show two residential pods each with four rooms and ensuite facilities plus a common room, and a larger central building with administration areas, kitchen and dining room, training rooms and communal facilities. Site infrastructure includes water supply and waste treatment facilities, recreational areas and landscaping, including an open air "fire pit".
3. Information on the nature and purpose of the Ngunnawal Bush Healing Farm is contained in the witness statement of Ms Roslyn Brown dated 29 November 2013. Ms Brown is a Ngunnawal woman who has been employed as Elder in Residence at the University of Canberra since 2011 and is a Co-Chairperson of the NBHF Advisory Board, which was formed to work with ACT Health in the establishment of the NBHF. The NBHF Advisory Board, she says, is committed to "making this project a show piece of what is possible both for our young Aboriginal and Torres Strait Islander people, the broader community and an exemplar of Reconciliation".
4. Ms Brown states that "for many years drugs and alcohol have been major problems in our communities ... we have lost many of our youth due to drug overdoses and the consequences of alcohol abuse ... this has severely traumatised our community and sustains a sense of hopelessness". Ms Brown describes the proposed NBHF as "a holistic centre in rural ACT to work with our youth, especially those 18-25 years old, away from the temptations of the city ... it will not be a place to detoxify or provide medical treatment for drug and alcohol addiction ... we will be working towards healing the mind, body and soul and opening a new world view for our youth ... there will be a strong focus on Aboriginal spirituality, culture and principles through recreational pursuits".
5. Ms Brown notes that attendance at the NBHF will be seen as a privilege. Participants would enter into a contract that will "state clearly what is required of them to remain on the land and in the program ... no alcohol or drugs will be permitted at any time ... participants who do not follow these conditions will not be allowed to stay in the program". Ms Brown says it was thought initially that "the longest period of time a participant would be in the program would be 12 months ... this was thought to be an exceptionally long period of time for participants to be away from family ... more generally it is envisaged that people would stay for shorter periods of time ... if there is a concern 12 months does not accord with the provisions of 'short term stay' I am confident the professionals designing the programs could accommodate a lesser duration of nine months for example".
6. Information as to the proposed staffing and operations of the NBHF is provided in the documents Proposed Model of Care Version 7.0 ("MOC") dated 5 October 2010 and a subsequent Detailed Service Model Phase Two ("DSM") dated May 2012. The MOC notes that it reflects "the ACT Government's commitment to treating drug use and dependence primarily as health problems". The DSM states that the NBHF "is not an Alcohol and Other Drug ("AOD") detoxification facility, a medical or clinical facility or an aged care/respite facility. The NBHF is a residential AOD treatment program, based on a TC [Therapeutic Community] approach, which will provide support and guidance for Aboriginal and Torres Strait Islander people with significant AOD problems and who are motivated to address these problems ... staff will not be employed as medically trained professionals". The MOC says "we are aiming for a staff ratio of 8:1".
7. The MOC says that the NBHF will accommodate people who require treatment and support, and will provide accommodation for families (including children under 5) "to keep families together throughout the healing journey". The MOC says the length of stay in the residential rehabilitation program will be from 3 to 12 months and in the re-entry program 6 to 12 months. The MOC says that the length of stay can be extended to 2 years "if deemed clinically appropriate". The DSM says "it is envisaged that the total stay will be up to 12 months".
8. A report prepared by CBRE Town Planning in support of DA 201221878 (ST601) notes that the NBHF site is not within a designated ACT water supply catchment and that therefore the requirements of the Water Use and Catchment General Code do not apply to the proposed development. A report entitled Ngunnawal Bush Healing Farm Water, Waste Water & Waste Strategy prepared by Northrop (ST551-556 - undated) notes that the subject land is not serviced by any town water supply and proposes an integrated water strategy "to optimise water supply and consumption". Bore water will be the primary source of potable and non-potable water (about 80%) and a licence has been granted to extract 2-3 ML of bore water per year. Bore water will be augmented by rainwater harvesting (about 20%). Bulk water will be stored in a 50kL tank and a 5kL tank for domestic use and in farm dams for livestock. Potable water will be treated to Australian drinking water standards. Farm dams and biologically treated waste water will be used for external landscape irrigation and farm needs.
9. The DA also notes that "water is taken from downstream of the site on the Murrumbidgee River as part of the ACT's broader water storage network" and confirms that "there is no proposal to discharge untreated waste water into Paddys River ... development of the site will include landscaping element and construction controls (such as a sediment and erosion control plan) that would minimise the potential for any impact on water quality in the catchment".

1. The Northrop report proposes that waste water should be reused on landscaped areas and gardens ... "the treatment train should include a proprietary waste water treatment unit to decompose the suspended solids, a biological treatment area to reduce nutrients and pathogens to acceptable levels and a storage facility ... biological treatment can be achieved through construction of a sub-surface wetland as the inlet structure to the storage ... the western farm dam which is above the anticipated 100-year ARI flood level can act as a receiving waters".
2. The subject land is within a declared Bushfire Prone Area as shown in the Planning for Bushfire Risk Mitigation General Code. In accordance with the Code, a bushfire risk assessment is required for all new Class 1, 2 and 3 buildings in a Bushfire Prone Area. The bushfire risk assessment and any recommendations are required to be lodged with the development application for the NBHF "together with any mitigation measures to the design and construction of the landscape".
3. Site plans submitted with DA 201221878S144C show a formal layout of buildings and landscape elements around a proposed open "fire pit". The fire pit is in the form of a shallow parabolic steel disc 1500mm in diameter and 150mm deep. The disc is held in place with steel rods to a central concrete footing. Three 50mm holes at the centre of the dish allow rainwater to escape. The operation of a communal facility on this site suggests continuous supervision will be required when this open fireplace is in use, in order to provide the 'mitigation measures' required by the bushfire code. In the witness statement of Ms Brown, it is noted that "ceremonial fires will only occur if permitted under fire restrictions".

1. Variation of a Crown lease is included in the definition of "development" in section 7(1)(f) of the Planning Act and is subject to the provisions of that Act relating to Development Approval, set out in Chapter 7 of the Act. Of particular relevance in this case is Division 7.2.3 which sets out the rules for dealing with development proposals that must be assessed in the Merit Track and in particular section 120, which requires a decision maker dealing with a Merit Track application to consider a range of matters when deciding that application.
2. Section 131B deals with development proposals for lease variations other than in designated areas and subsection 131B(3) provides that, if the development proposal is a variation to a lease to add an additional authorised use, the proposal must be dealt with under the provisions of the Act that apply to the track that applies to the proposed additional authorised use under the Territory Plan.
3. Sections 144 - 147 deal with amending development applications and set out the requirements for dealing with requests by applicants for development approval to amend their applications, including the need for the planning and land authority to satisfy itself that the amended application will be substantially the same as the development originally applied for and that the assessment track will not change if the application is amended.
4. Chapter 9 deals generally with leases and licences but most of its provisions do not affect a decision to vary a lease. Some sections however are relevant to the conditions that might be attached to an approval to vary a lease, in particular section 243 which deals with land management agreements for rural leases. It is also to be noted that section 253 prohibits the transfer (but not the sub-leasing) of land held by the Territory.
5. The development application is also subject to the provisions of the Territory Plan [1] which includes Development Tables for the various Zones. The Development Tables specify the Assessment Track that applies to a particular development proposal in the relevant zone, as well as developments that are prohibited in that zone. Section 50 of the Planning Act prohibits inter alia an authority of the Territory (including the tribunal) from approving the doing of any act that is inconsistent with the Territory Plan.
6. In this case, the subject land lies in the Non-Urban Zones but there was dispute between the parties as to precisely into which of the Non-Urban Zones (NUZ2, NUZ3 or NUZ5) the land fell and this affected what developments were permissible on it.

1. A number of issues emerged from the hearing as central to a decision on the matter under review: These were:
   • (a) whether the requirements of section 144 were met in dealing with the amended proposal;
   • (b) the zoning of the subject land and whether "group or organised camp" was a permissible use;
   • (c) in the event that it was, did the NBHF as proposed meet the definition of "group or organised camp";
   • (d) was the subject land suitable for such a development; and
   • (e) were there likely to be social or environmental impacts arising from the development that would be sufficient grounds for refusing the development application.
2. We deal with these sequentially in the paragraphs that follow.

Issue 1: Whether the requirements of section 144 were met in dealing with the amended proposal

1. As indicated above, section 144 of the Planning Act applies to requests from an applicant to amend an application already lodged with the planning and land authority. In this case, application was made to amend the wording of the variation sought to the lease purpose clause as set out in paragraph 2 above. In order to make the amendment, the respondent was required to satisfy itself that the amended application was substantially the same as the development originally applied for and that the assessment track would not change if it decided to amend the application as requested.

In Part 3 of the Notice of Decision, the decision maker, Mr Jim Corrigan, stated that

"the application originally proposed a number of uses that would be adjunct to the current agricultural use of the land. Following lodgement of the application it was apparent that 'adjunct use' was not an assessable development in this zone and therefore the application could not be approved in the Merit Track. Prior to the application being refused, the applicant lodged an amendment to the proposed use.

In accordance with section 144 of the Planning and Development Act 2007, the amended application is considered to be substantially the same as the original application to add the adjunct uses of 'cultural facility', 'educational establishment' and 'temporary residential accommodation' as a combined use. While adjunct use is not an assessable development in its own right, the use of 'group or organised camp' broadly includes the uses originally sought.

Therefore it was considered that the amended application could be considered to be substantially the same as the original".

1. No further explanation of this part of the decision was given by the respondent nor by any of its witnesses at the hearing nor were any submissions made about the matter, but this Tribunal, like the respondent, is bound by the provisions of the Planning Act and must turn its mind to whether or not the decision maker properly had the amended application before it. If in fact the amended application is not "substantially the same" as that originally applied for, then it should not have been accepted.
2. While the tribunal has, in other cases, taken a fairly broad view of the interpretation of "substantially the same" (eg in Walkington & Ors & ACT Planning and Land Authority [2010] ACAT 81) all such cases have involved requests to change plans already submitted for development approval and for the most part already publicly notified. In the present case there had been no public notification or referral to other authorities prior to the request for amendment being received.
3. This Tribunal is not satisfied that the amended application is "substantially the same" as the original application. It seems to us that there is a considerable difference in general understanding of the concepts of "cultural facility" and "educational establishment" (both of which are defined in the Territory Plan as being a form of "community use" which is prohibited in NUZ2, NUZ3 and NUZ5 zones) and the term "group or organised camp". Furthermore, "temporary residential accommodation" is not defined in the Territory Plan but may be a form of "residential accommodation" which is a prohibited use in all of the three non-urban zones.
4. A further consideration is the requirement of section 144 that there should be "no change" in the assessment track arising from the amendment of the application. It is not clear whether this is a reference to the difference between the track in which the amended application is placed and the track in which the development application is originally lodged, or the track in which it should have been lodged. In this case, the original application could not be assessed in any track (as Mr Corrigan noted in his decision cited above) so that if the latter interpretation is adopted, the amended application clearly did result in a change in the assessment track from no track to Merit Track.
5. It seems to this Tribunal that the purpose of section 144 is to protect the interests of those members of the public or other Territory authorities who have been consulted about an original development proposal from being confronted with some substantially different development as a result of an amendment. This view is reinforced by the fact that sections 145 and 146 set out the processes to be followed in the event that an amended application has previously been referred to an entity or has been publicly notified.
6. Consequently, this Tribunal considers that the amended application should not have been accepted as "substantially the same" and as not affecting the assessment track, and should instead have been refused.
7. However, it is not clear what consequences would flow from the rejection of such an amended application. It is obvious that, in its original form, the respondent would have been obliged to refuse the application, but it is also clear that while section 147 entitles an applicant to withdraw a development application at any time before the application is approved, the Act is silent on whether an application can be withdrawn before it is refused, but logic would suggest that it could. Even if it was not withdrawn, there seems to be no impediment to the applicant re-submitting the amended application as a new application although that might involve the payment or waiver of a further lodgement fee. Importantly, there would be no impediment to the respondent treating the amended application as a new application now lodged in the correct track and proceeding to public notification and consultation, as in fact occurred in this case.
8. This Tribunal is statutorily tasked with review of the decision to approve the amended development application. There is no statutory right to review the decision to accept the amended application, however the question of the appropriateness of accepting the amended application as such is both fundamental and immediate to the existence of the Tribunal's subsequent jurisdiction to review the decision that was made. The extent to which such procedural matters fall within the jurisdiction of a tribunal reviewing a decision predicated on those matters is unclear [2]. The Tribunal is satisfied that in this case, to the extent that the Tribunal may question the application by the original decision maker of section 144, then pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the Tribunal co-extensively has the powers of the original decision maker to determine how to treat the amended application.
9. The Tribunal has carefully considered this situation and concludes that as no one has in real terms been disadvantaged by this erroneous decision of the respondent, and having regard to the facts of the case, the purposes served by section 144 of the Planning Act and the time and effort already expended by the parties and the Tribunal on this matter, it will regard the application subject to review as having been a new application lodged in the correct track following withdrawal of the original one and proceed to consider the second Issue identified above. To do otherwise would likely result in the whole matter having to be referred to the original decision maker and, presuming the same decision were made and contested, re-heard by a different Tribunal. This outcome would be contrary to the statutory objects and principles of the Tribunal set out in section 6 and 7 of the ACAT Act.
10. We also rely on the views expressed by the former ACT Administrative Appeals Tribunal in Downer Community Association v ACTPLA and Anor [2007] ACTAAT 20 where it was stated that

On the hearing of an application for review of a decision the Tribunal stands in the shoes of the original decision maker. It is not necessarily the Tribunal's concern to determine whether the respondent was right or wrong or whether it followed correct procedures or whether those procedures were flawed or deficient. Its principal function is to determine what, on the evidence before it, is the correct or preferable decision for it to make.

Issue 2: The zoning of the subject land and whether "group or organised camp" was a permissible use

1. Permissible uses for any parcel of land in the ACT are controlled by the "zone" in which it is located, and the zone is determined by reference to the Territory Plan Map, required as part of the Territory Plan by section 56 of the Planning Act.
2. As Mr Hausfeld observed, the subject land appears on the map for Tuggeranong, Hume and Tharwa in the Territory Plan 2008 on the ACT Legislation Register website, but that map does not show zoning details for block 241 Paddys River. Because there is no longer a readily available paper-based map, the website refers those requiring detailed maps to ACTMAPi - an electronic interactive map maintained by the respondent - a feature of which is that a pop-up box appears as the cursor moves over block 241 which states that the block is zoned NUZ2, NUZ3 and NUZ5.
3. Mr Hausfeld asserted that ACTMAPi, at appropriate scales, includes overlays which show that specific parts of block 241 are zoned either NUZ2 or NUZ3, but he submitted that there was no map showing such "sub-map" zoning for NUZ5. In his submission, the consequence of this is that the whole of block 241 is zoned NUZ5. He contended that despite some oral evidence to the contrary, there was nothing in the Planning Act or the Territory Plan that precluded multiple zonings applying to the same piece of ground.
4. That this is not the case is evidenced by Exhibit 13, which is a print out from ACTMAPi about the Territory Plan. Under the heading Territory Plan Land Use Zones it reads inter alia "every block must have at least one land use zone over it, and could have more than one zone over different parts of it. However, there can only be one land use zone over each part of a block at one time." Consequently we reject Mr Hausfeld's submission.
5. The respondent presented the Tribunal with a number of print-outs from ACTMAPi at different scales (Exhibits 1, 15 and 17) which purported to show that small sections of block 241 were in fact coloured in a blue shade to show NUZ5 zoning, whereas the bulk of the block was coloured either olive-green, indicating NUZ3 zoning or cream, indicating NUZ2 zoning. These Exhibits indicate that, at most, a very small portion of block 241 is zoned NUZ5, but the resolution of the images does not allow us to determine the boundary of this zone with absolute certainty.
6. The most useful of these is Exhibit 1 which shows the whole of the subject land. It is evident from Exhibit 1 that the greater part of the block is zoned either NUZ3 or NUZ2 and that the area of the block proposed to be identified as usable for a group or organised camp (as indicated in Attachment 2 to the decision under review) can be located within the area zoned as NUZ2. However, the decision under review does not make it entirely clear that it must be so located.
7. As "group or organised camp" is a permissible use in the Development Table for the NUZ2 Zone subject to it being assessed under the Merit Track and the Non-Urban Zones Development Code, it is possible for the lease to be varied to allow this use. Whether such a variation should occur, however, requires that consideration be given to Issues 3, 4 and 5, all of which turn on the nature of the development proposed.

Issue 3: Does the NBHF as proposed meet the definition of "group or organised camp"?

1. As noted previously, "group or organised camp" is defined in Part D: Definition of Terms in the Territory Plan as follows:

Group or organised camp means the use of land for the purpose of providing short term share accommodation and recreation facilities by a body of persons associated together for the physical, cultural, spiritual or intellectual welfare of the community.

1. A column immediately to the right of the written definitions in Part D of the Territory Plan has the heading Some Common Terminology. The Plan says this column "contains some examples of activities which are covered by the accompanying definition". The column adjacent to the definition of a group or organised camp lists the following examples of activities covered by it:

Church camp, Outward Bound camp; Religious retreat; School camp; Scout, Guide camp; YMCA camp; Youth camp

1. While these examples are, presumably, meant to be indicative of the kind of developments falling under the rubric of "group or organised camp" they are surely not meant to be exclusive. Ms Messer provided the Tribunal with a helpful summary of five establishments in the ACT which would be generally regarded as "group or organised camps" viz Birrigai, Caloola Farm, Camp Cottermouth, Outward Bound and Greenhills (Exhibit 16, Attachment G). Of these only two include the words "group or organised camp" in their purpose clauses, the others spelling out in more detail the range of uses permissible.
2. There was much said at the hearing about the various wordings in the definition, particularly regarding the meaning of "short term". Mr Oshyer's written evidence included at paragraph 19 his views on the meaning of "short term" and in paragraph 22 his opinion that "the accommodation is short term, when understood in the context of its purpose". Mr Oshyer also included a statement about whether the land would be used by "a body of persons associated together for the physical, cultural, spiritual or intellectual welfare of the community" but did no more than quote from the service model for the NBHF.
3. Ms Messer also gave evidence as to the meaning of "short term" and whether there was (or would be) "a body of persons associated together for the physical, cultural, spiritual or intellectual welfare of the community" but conceded under cross examination that these were no more than her opinions.
4. Mr Hausfeld objected to the admission of the evidence of both these witnesses about these interpretations, on the grounds that they were no more than opinion evidence and did not qualify as expert witness evidence.
5. Mr Hausfeld put to both these witnesses that the proposed development was in reality a "health facility" which is a Prohibited Use in an NUZ2 zone by virtue of it being a subset of "community use" in the Plan Definitions, but neither

Mr Oshyer nor Ms Messer agreed with that proposition. 6. If the NBHF as ultimately developed and operated is in fact a "health facility", then that issue will become relevant in terms of the use of the land. The question of the correct characterisation of the NBHF is not of any particular relevance to this Tribunal in determining whether to vary the lease purpose clause to allow a group or organised camp. 7. Similarly, in relation to the question of whether the NBHF proposes "short term" accommodation, the Tribunal is not required to decide this matter in these proceedings. Arguably, "short term" in relation to accommodation in a planning context may also be seen to mean "not permanent". While we were provided with copies of DA 201221878 in the Supplementary T Documents, and we had the MOC and the DSM to guide us, no direct evidence was led by the respondent about the operation of the NBHF other than that provided by Ms Brown. It seems from these documents and Ms Brown's evidence that the duration of stay of residents at the NBHF could be up to a year (or even longer in some circumstances) but would not in any case be permanent. 8. Questions could also be raised about just what is the "group of persons associated together" that is intended to provide the facility and services of the NBHF. The applicant for development is the ACT Department of Health but, while the Department has been working closely with the Aboriginal community through the NBHF Advisory Board in developing the concept, the Tribunal does not regard that Department as meeting the "group of persons" requirement of the definition. Ms Brown indicated it was envisaged that the NBHF Advisory Board would become "a permanent Committee to guide the responsible and accountable operations of the program and functioning of the NBHF, with a view to the NBHF transferring to community control through a managed transition period" but it may not be possible for the land to be transferred to another organisation having regard to the provisions of section 253 of the Planning Act. 9. Certainly the arguments put by the parties raise some doubts that the proposed development of the NBHF (as far as we know its final form) would qualify as a group or organised camp, but that is for others to decide. It does not follow that the site is unsuitable for use as a group or organised camp or for the proposed operations of the NBHF.

Issues 4 and 5: Is the land in question suitable for the development proposed; and are there likely to be social or environmental impacts arising from the development that would be sufficient grounds for refusing the development application.

1. In deciding on a development application in the Merit Track we are obliged by section 120 of the Planning Act to consider a number of matters as follows:
   • (a) the objectives for the zone in which the development is proposed to take place;
   • (b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;
   • (c) each representation received by the authority in relation to the application that has not been withdrawn;
   • (d) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications) - the entity's advice;
   • (e) if the proposed development relates to land that is public land - the plan of management for the land; and
   • (f) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
2. No evidence was given nor were submissions made in relation to subsections 120(a), (c), (d), or (e). However, much attention was paid to subsection (b) the suitability of the land for "a development of the kind proposed" and to subsection (f) "probable impact of the proposed development".
3. This raises the question of what is meant by "a development of the kind proposed" in section 120(b). On one reading it could be no more than the variation of the lease, which by definition is "the development" before this Tribunal. However, we think that such a blinkered interpretation is not what is intended by this section, but rather it requires consideration of the physical development that is proposed to take place after the lease is varied. A "group or organised camp" could come in various shapes and sizes, and it is relevant for the Tribunal to have regard to both the proposed and other possible developments. This is particularly so, if, as a result of any conditions placed on the additional use, the full range of activities otherwise possible within that use could be significantly reduced.
4. Some of the applicants gave opinion evidence that the area of land identified in the decision was not suitable for use as a group or organised camp in the proposed form of the NBHF. For example, Mr Whittem contended that the site was not suitable because of its being greater than a half hour drive from a hospital (which he claimed was one of the criteria in selection of a suitable site) and that communications during emergencies would be hampered by frequent power outages and inadequate mobile phone coverage. In addition, Mr Whittem said, the site would frequently be cut off for long periods by flooding of Paddys River. Similar views were expressed by Mr Robertson. Mr Shanahan (drawing on his own knowledge and experience of living there) considered that the site was particularly vulnerable to bushfires and that were there to be a significant number of people housed on block 241 at the time of a moderate to severe bushfire then it would be extraordinarily difficult to get them out or to save them if a fire came towards the property from the north-west. While there may be substance in these concerns, the Tribunal does not think that these concerns cannot be overcome, nor that they make the site unsuitable for use as a "group or organised camp" though they might make it unsuitable for the NBHF as presently proposed.
5. Section 120(f) requires us to consider the probable impacts of the proposal including environmental impacts. The tribunal has in other cases (eg. Lourandos and Yiannokopolous & ACT Planning and Land Authority & Ors [2011] ACAT 25 at [124] and [125]) observed that the wording of this subsection implies that it extends to social impacts and is not confined to environmental impacts (though it is often interpreted in that way).
6. In a preliminary statement to the Tribunal, the chairman of the ACT Rural Land Holders Association, Mr Tom Allan, contended that members of his Association were entitled to expect that "appropriate public policy" would protect them in the quiet enjoyment of their rural leases. He said that the proposed NBHF was "more than a group or organised camp" and that the use of rural land for the purpose of the proposed NBHF disadvantaged the members of the Association. Mr Allen suggested that there were several sites available elsewhere in the ACT that would be better suited for the proposed purpose.
7. The other applicants expressed a range of concerns about both the potential social impacts and the possible environmental impacts of the NBHF if built on this site, in particular the danger of fire arising from use of the fire pit, the risk of stock being harmed on adjacent properties, the possibility of pollution of the Paddys River from which Mr and Mrs Whittem draw their water and the impact on the rural character of the area including loss of privacy and rural views.
8. However, these concerns are all speculative and absent any final proposals for the design, operation and management of the facility the Tribunal had difficulty in giving significant weight to them.
9. Ms Brown's evidence (which was not tested) asserted that "our intention is to be a responsible member of the local rural community". She said that this would include "establishing a relationship with the Rural Bush Fire Service that could include training for NBHF participants and encouraging their ongoing involvement. Additionally, we hope to build partnerships with Rural Land Holders, i.e. agistment, boundary fence maintenance, weed and pest control. It should be noted that hunting of any kind is not part of the NBHF ethos". It remains to be seen if and how effect will be given to these aspirations.

1. The Tribunal finds itself in a difficult position. It is being asked to review a decision to vary the lease to allow "group or organised camp" on a small portion of the subject land, but is not asked to review the development proposal itself. The DA, the MOC and the DSM for the NBHF together give some indication as to what might ensue were the lease varied, however they are not binding and do not limit the possible types of "group or organised camp" that might occur if the variation is approved.
2. While section 120 of the Planning Act requires us to "consider" the development that is proposed and its probable impacts, these considerations are not determinative but are only some of the considerations the Tribunal must have regard to.
3. The Tribunal is satisfied that the proposed area of the lease to be varied to include use as a group or organised camp can be located within the NUZ2 zone. The proposed lease variation is not inconsistent with the objectives for that zone.
4. Having viewed the subject land and surrounding land extensively, and taking into account the submissions as to rural character, quiet enjoyment and amenity, the Tribunal considers that the relevant portion of the land is in principle suitable for use as a group or organised camp. As noted above, the concerns of the parties as to probable impacts, both social and environmental, are largely speculative and did not persuade the Tribunal that the correct or preferable decision would be to refuse the lease variation.
5. The respondent's closing submissions included proposals to modify the conditions of development approval under review and to include a number of amended provisions in the Crown lease to address some of the issues raised by the applicants. The Tribunal endorses the proposal to define accurately by means of a surveyed plan that portion of the subject land available for the proposed use of a "group or organised camp" (which must be wholly within the part of Block 241 zoned NUZ2) and to require the lessee to accept responsibility for and to maintain the access road. However, the Tribunal considers some of the proposed lease provisions (such as those limiting the number of persons accommodated overnight and prohibiting the consumption of liquor or drugs of dependence on the premises) as unnecessarily prescriptive for attachment to the subject land.

(i) replacing Condition A2 with the following words:

That within 28 days from the date of this decision, or within such further time as may be approved in writing by the planning and land authority, the applicant/Lessee must lodge with the planning and land authority a plan prepared by a qualified surveyor showing the dimensioned boundaries of the part of the block for the proposed use of "group or organised camp", generally in accordance with Attachment 2 of this Decision and wholly within the part of the block zoned as NUZ2. The plan shall be attached to the Instrument of Variation which will be registered at the Office of Regulatory Services;

(ii) replacing Clause 3(n) of the provisions of the amended Crown lease with the following words:

3(n) That the Lessee shall at all times during the said term of the lease:

(iii) Take sole responsibility for the maintenance and repair of the access track over Block 145 District of Paddys River and Block 130 District of Paddys River; and

(iv) Maintain and repair the access track over Block 145 District of Paddys River and Block 130 District of Paddys River.

[1] In a recent judgment the ACT Supreme Court indicated some uncertainty about the exact status of the Territory Plan but concluded that section 50 of the Planning and Development Act 2007 seemed to give it authority - Donohue v ACT Planning & Land Authority [ 2013] ACTSC 234 at [14]. The ACT Legislation Register reveals that the Territory Plan is authorised by section 46 of the Planning Act and is a Notifiable Instrument. Section 12 authorises the planning and land authority to prepare, administer and continually review the Plan which was first published in Notifiable Instrument NI 2008-17 and has been regularly updated by further Notifiable Instruments, the most recent being NI 2014-33

[2] See, for example, Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 108 ALR 322