Supreme Court of the ACT|2012-07-06

Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors [2012] ACTSC 102 (6 July 2012)

ARGOS PTY LTD & ORS v SIMON CORBELL, MINISTER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT & ORS

[2012] ACTSC 102 (6 July 2012)

Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493

Australian Conservation Foundation and anor v Minister for Resources and anor (1989) 19 ALD 70

Australian Foreman Stevedors Association v Crone (1989) 20 FCR 377

Boyce v Paddington Borough Council [1903] 1 Ch 109

Corporation of the City of Enfield v Development Assessment Commission and anor [2000] HCA 5; (2000) 199 CLR 135

Capital Property Projects (ACT) Pty Limited and ors v Planning and Land Authority and anor [2007] ACTSC 95; (2007) 157 LGERA 259

Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675

Jewel Food Stores Pty Ltd and ors v Minister for the Environment Land and Planning and ors (1995) 122 FLR 269

Manuka Business Association Inc v The Australian Capital Territory Executive [1998] ACTSC 86

North Coast Environment Council Incorporated v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27

Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119

Re Tooheys Limited v the Honourable John Clinton Moore, the Minister for Business and Consumer Affairs of the Commonwealth of Australia [1981] FCA 121; (1981) 54 FLR 421

Woolworths Ltd v Pallas Newco Pty Ltd and anor [2004] NSWCA 422; (2004) 61 NSWLR 707

Land (Planning and Environment) Act 1991 (ACT) (repealed), ss 7, 8, 237

CAVO PTY LTD ATF DEMOS FAMILY TRUST T/AS IGA KALEEN SUPERMARKET

KOUMVARI PTY LTD ATF VIZADIS FAMILY TRUST T/AS IGA EVATT SUPERMARKET

AND: SIMON CORBELL, MINISTER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

AND: AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY

1. Nikias Nominees Pty Ltd (Nikias), the third defendant, owns Block 4 Section 79 Giralang. In 2007 Nikias made an application for the direct sale of Block 5 Section 79 Giralang, which is contiguous with Block 4. I understand that it is proposed under a draft Crown Lease that Block 5 will be consolidated with Block 4.

2. In recent years Nikias has made a number of development applications to develop the land at Blocks 4 and 5 Section 74 Giralang (the Giralang Local Centre). The first application was for a residential/commercial development including three commercial units with a total area of 350 square metres and thirteen residential units. This application was made on 6 March 2008 and refused by the Australian Capital Territory Planning and Land Authority (ACTPLA), the fourth defendant, on 6 September 2008. The second development application was made on 17 March 2009 and involved an application for consolidation of Blocks 4 and 5, and variation of the Crown Lease to permit a commercial development including a supermarket and specialty stores. This application was refused by ACTPLA on 3 September 2009. Nikias applied to the ACT Civil and Administrative Tribunal (ACAT) for review of the decision but discontinued the proceedings before the matter was heard. The third development application was made on 1 March 2010 and also proposed the consolidation of Blocks 4 and 5, and a variation of the Crown Lease to permit a commercial development including a supermarket and specialty stores. The application was subsequently amended, and the amended application was approved by ACTPLA on 5 October 2010. This approval was challenged in the ACAT by several persons, including the plaintiffs in these proceedings. At the request of the parties, ACAT made consent orders that ACTPLA's approval be set aside and substituted with a decision that the application was refused.

3. The fourth development (the proposed development) application was made on 27 April 2011 and also proposes the consolidation of Blocks 4 and 5, and a variation of the Crown Lease to permit a commercial development including a supermarket and specialty stores. This application was approved by the Minister for the Environment and Sustainable Development, Simon Corbell (the Minister) on 17 August 2011. It is this approval that is challenged in these proceedings.

4. The first plaintiff, Argos Nominees Pty Ltd (Argos) holds the Crown Lease of the land where the Kaleen local centre is located, but does not operate the Kaleen IGA supermarket in that local centre. The sub-lease for the IGA Supermarket is held by Cavo Pty Ltd (Cavo), the second plaintiff. The third plaintiff, Koumvari Pty Ltd as trustee for the Vizadis Family Trust trading as IGA Evatt Supermarket, holds a sub-lease of the Crown Lease for the site of the IGA Supermarket at the Evatt local centre. The fourth plaintiff, the Combined Residents Association Inc (the Association) is an incorporated association formed on 18 May 2011.

5. In these proceedings the plaintiffs challenge the Minister's decision to approve the fourth development application on the following grounds:

the Minister did not have jurisdiction to approve the development proposal because it was not consistent with the relevant code, contrary to s 119 (1) (a) of the Planning and Development Act 2007 (ACT).
the decision to approve the development proposal was not authorised under the enactment under which it was purported to be made, the Planning and Development Act 2007 (ACT);
the decision to approve the development proposal was an improper exercise of the power given by the Planning and Development Act because the Minister failed to take into account relevant considerations or, in the alternative, the making of the decision was an exercise of power so unreasonable that no reasonable person could have so exercised the power;
in making the decision the Minister breached the rules of natural justice, and
the making of the decision by the Minister involved an error of law.

6. The Australian Capital Territory Planning and Land Authority and the Australian Capital Territory Executive, the fourth and fifth defendants respectively, entered submitting appearances. The Minister appears opposing the orders sought by the plaintiffs on limited grounds. The second and third defendants also appear to oppose the orders sought. The defendants raise a preliminary issue concerning the standing of the plaintiffs to bring the present proceedings, which may conveniently be dealt with separately to the substantive issues raised by the plaintiffs. It is, however, necessary at the outset to consider the legislation relevant to these proceedings.

7. As the plaintiffs point out in their written submissions, planning in the Australian Capital Territory is complicated by the involvement of the Commonwealth as well as Territory authorities in the planning process, and by reason of the leasehold nature of land tenure. Until the advent of self-government in the ACT in 1989, the Commonwealth was responsible for planning decisions in the Territory through successive statutory authorities, most recently the National Capital Development Commission (NCDC). The NCDC did not prepare an overall Canberra plan with zoning of areas for particular types of development. Its planning policies were implemented and enforced through the purpose clause of each Crown Lease.

8. With the advent of self-government the Commonwealth continued to assert a strong interest in planning and land management in the Territory through the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (PALM Act).

9. Section 5 of the PALM Act establishes what is now called the National Capital Authority (the NCA). Amongst its functions in s 6 is the creation and administration of the National Capital Plan. The object of the National Capital Plan, as set out in s 9, is "to ensure that Canberra and the Territory are planned and developed in accordance with their national significance".

10. Despite the reference to "national significance" in s 9, s 10 (2) (b) says that the National Capital Plan "shall set out the general policies to be implemented throughout the Territory".

(1) An enactment that is inconsistent with the Plan has no effect to the extent of the inconsistency, but an enactment shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan.

(2) The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the Plan.

12. Part IV of the PALM Act deals with the Territory Plan. Section 25 (1) requires the ACT Legislative Assembly to establish a Territory planning authority and to confer functions on the authority including the preparation and administration of a Territory Plan in respect of land, not inconsistent with the National Capital Plan. Section 25 (3) requires the Territory Plan to "define the planning principles and policies for giving effect to the object of the plan".

13. Section 26 provides that "the Territory Plan has no effect to the extent that it is inconsistent with the National Capital Plan", but is taken to be consistent with that Plan to the extent that they are capable of operating concurrently.

The Land (Planning and Environment) Act 1991 (ACT) (repealed)

14. The Land (Planning and Environment) Act 1991 (ACT) (repealed) (the Land Act) was an omnibus enactment dealing with planning and all matters of land management and administration. Its drafting reflected its relationship with the PALM Act. Section 7 sets out the objects of the Territory Plan in language drawn from s 25 of the PALM Act. Section 8 was the mirror of s 11 of the PALM Act, making unlawful any act by the Territory or a Territory authority that was inconsistent with the Territory Plan. The Land Act contained no specific provision requiring a development approval to be given only if it complied with the requirements of the Territory Plan, however s 8 did prohibit the approval of any act inconsistent with the Territory Plan.

15. In 2007 the Planning and Development Act 2007 (ACT) (the Planning Act) replaced the Land Act. It also is an omnibus enactment dealing with planning and land management. The Planning Act divides the Territory into zones permitting broad types of development and regulates the development process. Chapter 5 deals with the Territory Plan. Section 48 sets out the objects of the Territory Plan, in much the same terms as s 7 of the Land Act. Section 50 is the equivalent of s 8 in the Land Act, requiring the Territory and its authorities to act consistently with the Territory Plan.

16. Section 51 sets out what must be in the Territory Plan, including objectives for each zone and codes. Section 53 provides that zone objectives "set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone". Section 54 then describes development tables, which must set a "minimum assessment track" that applies to each development proposal. The assessment tracks are "code track", "merit track" and "impact track": s 54 (3). Development tables define which code applies to particular types of development in a zone.

17. The effect of the Planning Act, and its application to a particular development, is set out in the plaintiffs' written submissions, which I gratefully adopt on this issue:

The effect of these provisions is to set up a Territory Plan which:

(a) divides the land in the Territory into zones permitting broad types of development,

(b) sets out in detailed codes the requirements for all types of development, notably residential, commercial and industrial developments,

(c) establishes three "tracks" that govern the process of approving a development, and

(d) through development tables, assigns particular development applications to particular tracks and determines which particular code applies to that type of development.

Thus the application of the Plan to a particular development involves the following steps:

(a) by reference to the zone map, determine the zone applicable to the land on which the development is proposed,

(b) by reference to the development table for that zone, determine the code (or codes) applicable to the type of development proposed,

(c) by reference to the particular code(s), determine whether the proposal meets the detailed rules and criteria applicable to the development, and

(d) by reference to the development table, determine which assessment track applies to the process of approving the development.

18. The usual decision-maker with respect to development applications is ACTPLA, but the Minister may exercise call-in powers under Division 7.3.5 of the Planning Act. That is what occurred in this case. Where the Minister decides to consider the development proposal, s 160 of the Planning Act requires the Minister exercise the powers under s 162 to either approve the application, refuse it, or conditionally approve it.

19. The development table assigned the application for the proposed development to the merit track. Under s 119 of the Planning Act development approval for an application in the merit track "must not be given" unless the proposal is consistent with "the relevant code". Under s 120 in considering a development proposal "the decision-maker must consider" a range of matters including the zone objectives and any representations received.

20. A development proposal in the merit track must be publicly notified: s 121 (1). Public notification is described by s 152, relevantly for present purposes, as being notification under both s 153 and s 155. Under s 153 the Planning and Land Authority is required to notify adjoining landholders of the development. Section 155 requires the Planning and Land Authority to notify a development application by placing a sign outside the land the subject of the proposal, and by publishing a notice of the application in a newspaper.

21. Under s 28 of the Planning Act the Planning and Land Authority is obliged to maintain a public register containing, amongst other things, a summary of the proposed development, the location of the proposed development and whether the application has been, or is being, publicly notified. However, the public register is not to contain "associated documents" (see s 28 (3)), which are defined in s 30 to include much of the supporting documentation for a development application. The public register and associated documents must be available for public inspection during business hours: s 29.

22. As stated above, the National Capital Plan is created and administered by the NCA under the PALM Act. The purpose of the National Capital Plan, and its relationship with the Territory Plan, is set out in the Introduction to the Plan at p 7:

The National Capital Plan is required to ensure that Canberra and the Territory are planned and developed in accordance with their national significance. A separate Territory Plan deals with the particular qualities of the Territory which affect the day to day lives of Canberra citizens. The National Capital Plan provides a framework for the Territory Plan while advancing those aspects of Canberra and the Territory which are special to the National Capital role.

23. The structure of the National Capital Plan is also set out in the Introduction at p 7:

At one level, the Plan describes the broad pattern of land use to be adopted in the development of Canberra and the Territory. The Plan adopts seven major categories of land use ranging from Urban Areas at one end of the spectrum to Mountain and Bushland Areas at the other. For each category the Plan sets out planning policies, including a range of permitted uses.

General policies of the Plan also cover such matters as policies relating to National and Arterial Roads, location of Commonwealth employment, heritage issues and other relevant matters of broad policy.

At a more detailed level, the Plan identifies areas which have the special characteristics of the National Capital - Designated Areas - and sets out detailed conditions for their planning, design and development.

Finally, the Plan sets out Special Requirements for the development of selected areas, not being Designated Areas. In general, the requirements seek to ensure that the development of National Land accords with agreed plans, and that the Territory Plan contains appropriate development controls in certain sensitive areas. For areas that are Designated or affected by Special Requirements, the General Policies of the Plan will continue to also apply.

24. Chapter 4 of the National Capital Plan deals with Urban Areas. Of significance to the present proceedings is its reference to "centres" at p 33:

Centres

One of the key principles of Canberra's urban structure has been that a hierarchy of centres has been developed, with each town having a centre acting as a focal point for higher order retail functions, commercial services, offices and community facilities.

This hierarchical principle, at the metropolitan level, means that:

Canberra Central continues to be the main location of metropolitan employment
Civic has been encouraged to develop as the most specialised retail, commercial, cultural, entertainment and tourist centre
town centres provide retail, commercial, cultural, entertainment and other facilities to meet community needs, and serve also as locations for office-based employment.

Centres at each level in the hierarchy form the focus of a range of retail, commercial and community facilities and services, in which specialisation increases at successively higher levels.

The integrity of the hierarchy of centres has broadly been maintained with the levels of fulfilling distinct but complementary functions.

Pressures are now being felt for major redevelopment in some centres such as Dickson, Kingston and Manuka. This would be undesirable if major changes to the three centres went counter to the purpose of the hierarchy of established centres.

Continued expansion of services and facilities should be provided for and encouraged in each of the town centres, including Tuggeranong.

Each town should have a town centre. The Territory Plan will provide for a range of lower order centres to meet the varying needs of residents.

25. While the National Capital Plan is, as described by the plaintiffs at p 8 of their submissions, "discursive and generalised" and "reads like a general commentary rather than a document with specific requirements", it is very much a strategic document setting out planning requirements for specific areas with a significant degree of particularity.

26. The land in question in these proceedings is zoned Commercial CZ4 - Local Centre. The overview to Part 4.3 of the Territory Plan sets out the function of Commercial Zones at p 48:

The Commercial Zones are established to recognise the various functions, values and characteristics within commercial areas, and to provide a level of consistency and equity across the geographic range of commercial centres. Commercial areas are structured to reflect the principles of a hierarchical system of centres, which comprise the City Centre, town centres, group centres, and local centres.

27. At page 49 of the Territory Plan the intention for CZ4 Local Zone Centre is stated:

This Zone is intended for local shops, non-retail commercial and community uses, service stations, and restaurants to service a local community. Residential uses may also be permitted.

28. At page 38 the Zone Objectives for CZ4 - Local Centre Zones are set out:

Provide for convenience retailing and other accessible, convenient shopping and community and business services to meet the daily needs of local residents
Provide opportunities for business investment and local employment

Ensure the mix of uses is appropriate to this level of the commercial hierarchy and enable centres to adapt to changing social and economic circumstances.

Maintain and enhance local residential and environmental amenity through appropriate and sustainable urban design
Promote the establishment of a cultural and community identity that is representative of, and appropriate to, the place

29. The proposed development is subject to the Local Centres Development Code (the LCDC) found within the Territory Plan. The controls on development provided by the LCDC are expressed either as Rules, which are generally quantitative, or as qualitative Criteria. For example, in considering "Amenity" under the General Development Controls for Commercial Zones, one of the relevant considerations is "Consideration of Impacts" which is subject to a Criteria, C33 at p 156:

A proposal to carry out development in a local centre must have regard to any significant adverse economic impact on other commercially viable local centres.

30. These proceedings are brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ACT ADJR Act), which allows a person aggrieved by a decision to which the Act applies to apply to this Court for review of the decision on specified grounds. The phrase "person aggrieved" is the subject of an inclusive definition in s 3B:

3B Meaning of person aggrieved

(1) For this Act, a reference to a "person aggrieved" by a decision includes a reference to -

(a) a person whose interests are adversely affected by the decision; and

(b) for a decision by way of the making of a report or recommendation - a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation.

(2) For this Act, a reference to a person aggrieved by conduct that has been, is being, or is proposed to be engaged in for the purpose of making a decision, includes a reference to a person whose interests are, or would be, adversely affected by the conduct.

(3) For this Act, a reference to a person aggrieved by a failure to make a decision includes a reference to a person whose interests are, or would be, adversely affected by the failure.

31. The starting point in determining whether the plaintiffs, or any of them, are persons aggrieved by the Minister's decision, in the sense that their interests are adversely affected by the decision, is the English decision of Boyce v Paddington Borough Council [1903] 1 Ch 109 (Boyce) where Buckley J said at page 114:

A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specifically affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

32. This passage was quoted with approval in separate judgments by Gibbs CJ and Stephen J in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493. Stephen J noted at [16] that the first limb in the quoted passage "involves no more than that a plaintiff may, without joining the Attorney-General, sue for interference to some private right of his own ...". His Honour goes on to say at [17]:

It is his Lordship's second limb which is of significance in the present case. It deals with those cases in which "no private right is interfered with". In such cases, according to his Lordship, a private plaintiff has standing only if he suffers "special damage peculiar to himself from the interference with the public right". The private remedy arises because of infringement of the public right but is dependent upon the suffering of special damage peculiar to the plaintiff.

33. Gibbs CJ at [15] declined to attempt to formulate a general principle as to what may constitute a sufficient interest to give standing to a plaintiff who stands within the second limb of the rule in Boyce:

It is not necessary for me to consider the manner in which the principle which I have stated should be applied in circumstances which do not now arise, and it would not be profitable to do so, because, as Mason J said in Robinson v Western Australian Museum (1977) 138 CLR, at pp 327-328, the "cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another".

34. In Re Tooheys Limited v the Honourable John Clinton Moore, the Minister for Business and Consumer Affairs of the Commonwealth of Australia [1981] FCA 121; (1981) 54 FLR 421, Ellicott J considered whether the applicant was "a person aggrieved" for the purposes of s 5 (1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Commonwealth ADJR Act) by a decision of the Minister not to exempt certain goods from tariff under the Customs Act 1901 (Cth). Somewhat strangely, his Honour made no reference to the decision in Australian Conservation Foundation v Commonwealth when considering the question, nor did he refer to the definition of "a person aggrieved" in s 3 of the Commonwealth ADJR Act. His Honour said at p 437:

The words "a person who is aggrieved" should not in my view be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision ... This doesn't mean that any member of the public can seek an order of review. I am satisfied however that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases however the effect may be less direct. It may affect him or her in the conduct of a business or may...affect his or her rights against third parties (cf Robinson v Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283).

35. The question was again considered in Australian Foreman Stevedors Association v Crone (1989) 20 FCR 377 where Pincus J said, in relation to standing under the Commonwealth ADJR Act:

Many governmental decisions indirectly affect the interests of a large number of people, not all of whom have a right to sue under the Administrative Decisions (Judicial Review) Act. A decision favourable to one citizen may affect many others: some directly, and some more remotely. There is a point, which must be fixed as a matter of judgment in each case, beyond which the court must hold that the interests of those affected are too indirectly affected to be recognised. A case such as this, where a decision has been made which is said to be favourable to one of a group of business competitors, is an example; the decision may, by assisting one, relatively disadvantage the others...

36. In Australian Conservation Foundation and anor v Minister for Resources and anor (1989) 19 ALD 70, Davies J in the context of an application under the Commonwealth ADJR Act, rejected the proposition that Australian Conservation Foundation v Commonwealth laid down, as a matter of law, that the Australian Conservation Foundation had no standing to challenge government decisions that may affect the environment. Following the decision in Australian Conservation Foundation v Commonwealth, the question was whether or not the applicant had a "special interest" in the subject matter of the application: see also Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 per Stephen J at page 42.

37. In Jewel Food Stores Pty Ltd and ors v Minister for the Environment Land and Planning and ors (1995) 122 FLR 269, Higgins J (as his Honour then was) considered whether the applicants had standing to challenge a decision of the Minister under the Land Act. Section 237 (1) of that Act provided that any person "who may be affected by an approval of a development" may object to the grant of the approval. The decision under review was one effectively increasing the size of the Belconnen Fruit Markets. The applicants were proprietors of various businesses in the Belconnen area, being supermarkets which retailed goods, including the kind of goods sold at the market. The applicants contended that the prospect of increased economic competition as a result of the proposed development was a relevant "effect" on them.

38. In finding that this was not a sufficient effect to give the applicants standing, Higgins J noted that neither the applicants nor their customers had any legitimate expectation that competition would be restricted so as to protect their economic interests. The fact that their economic prospects were now less favourable was not sufficient to give them standing.

39. In North Coast Environment Council Incorporated v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492, Sackville J considered whether the applicant had standing as a person aggrieved for the purposes of the Commonwealth ADJR Act to seek a statement of reasons under that Act from the respondent concerning a decision to allow the export of woodchips from an area on the north coast of New South Wales. After considering the decision in Australian Conservation Foundation v Commonwealth, and other authorities on the interpretation of the phrase "person aggrieved", Sackville J said at [81]:

I have already said that, although ACF v Commonwealth should be read in the light of the submissions with which the High Court was concerned, its authority cannot be ignored. Furthermore, although cases interpreting the phrase "person aggrieved" in the ADJR Act have used broad language, it has never been held that the principles governing the award of declarations and injunctions under the general law have been superseded by different and broader conceptions under the ADJR Act.

40. My attention was also drawn to Manuka Business Association Inc & ors v The Australian Capital Territory Executive & anor [1998] ACTSC 86, an unreported decision of Higgins J (as he then was) concerning the right of the applicants to seek review under the ACT ADJR Act of certain development approvals in the suburb of Manuka in the ACT. His Honour reiterated his statement in Jewel Food Store Pty Ltd v Minister for the Environment, Land and Planning that a fear, even a well founded fear, of increased economic competition was insufficient to grant standing. However, the fact that the applicants' concerns went beyond the mere economic, and included interests such as disruption to existing trading during construction, the possibility that the size of the development may affect the amenity of the precinct and the accessibility and adequacy of parking for existing traders and customers was sufficient to give the applicants standing as persons aggrieved.

41. The plaintiffs submit that the line of authority including cases such as Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning can be distinguished from the present case on four bases:

independent of the economic impact of the proposal, the statutory scheme has a wider concept of a person aggrieved by a decision or whose interests are adversely affected;
the statutory scheme in the present case, unlike those in the cases cited above, expressly raises the economic effect of a decision as a relevant criterion for the decision-maker (see C33, set out in par 29 above);

the bold proposition that economic effect does not of itself give standing has always been qualified by the proposition that if shopping facilities presently enjoyed by a community are put in jeopardy by a proposed development and that detriment will not be made good by the development itself, that is a relevant planning consideration (see Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675); and

it is questionable whether the proposition in Jewel Food Stores Pty Ltd and ors v Minister for the Environment Land and Planning and ors remains a basis for denying standing in circumstances where the economic impact of a decision is significant.

42. With respect to the first of these propositions the plaintiff made the following written submissions:

The determination of a person whose interests are adversely affected is to be ascertained both from the nature of the power of review (the ADJR Act) and the scheme of the Act to which that review power applies (the Planning and Development Act).
10. Insofar as the first element is concerned, it is relevant to note that ss.5(1)(a), (b), (c), (d), (f), (h) and (i) are all invoked in this proceeding by reference to the decision the subject of review.
As to the latter element, namely the scheme of the Planning and Development Act it is relevant to observe that, at the very least, insofar as the first element discussed above is concerned, s.51(1)(a) is referable to the concept of "a breach of the rules of natural justice".
Quite aside from the debate engaged between the parties concerning the other grounds of review, the Planning and Development Act has, at its heart a mechanism for the according of natural justice in the making of decisions in the merit track (this is further addressed below).
Furthermore, even leaving aside the debate about whether there exists in the scheme of the Act a jurisdictional fact permitting this Court to determine for itself whether the proposal is consistent with the relevant code, there can be no doubt that as part of the preparation of a proposal (and then its consideration by the Minister) the question of impacts on other commercially viable local centres is relevant, whether or not as separate to the more specific question of any significant adverse economic impact on other commercially viable local centres: Local Centres Development Code, page 12, Intent (b), and Rule 5.5, Criterion 33.
Recognition of the particular focus of the legislative scheme in that respect then informs, for the purposes of s.3B of the ADJR Act, the notion of a person whose interests are adversely affected by the decision.

43. It is, I think, reasonably apparent that the plaintiffs do not submit that the Planning Act gives the plaintiffs a right to appeal the decision to approve the proposed development. Nevertheless, I will make it clear that I am satisfied that the Planning Act has no such effect. As I understand the plaintiffs' submission, in determining whether the plaintiffs, or any of them, are aggrieved persons for the purposes of the ACT ADJR Act, the scheme of the Planning Act must be considered. Whilst I accept this submission, the test for standing remains whether the plaintiffs can demonstrate a sufficient interest in the subject matter of the decision.

44. Considering C33 first, I cannot accept the plaintiffs primary contention that C33 requires that a development proposal avoid a significant economic impact to the point of threatening other local centres. In my opinion C33 does no more than require a decision maker to consider any significant adverse economic impact on other commercially viable local centres. It would have been very easy for the drafter of C33 to have used the word "avoid" if that was what was intended. The impact of the proposed development on other commercially viable local centres is a relevant consideration but, as the plaintiffs themselves assert, significant impact on facilities presently enjoyed by a community has always been a relevant consideration in planning decisions. As such, the presence of C 33 in the Local Centres Development Code does not indicate a statutory intention to give standing to challenge an approval to which C 33 is relevant to parties whose only interest is a likely economic impact by the proposed development.

45. The plaintiffs' reference to natural justice in the submissions set out in par 42 above appears to be based on the following propositions:

• a development proposed in the merit track must be publicly notified (s 121 of the Planning Act);

• any person may make a written representation about a development application that has been publicly notified (s 156 (1) of the Planning Act);

• section 29 of the Planning Act requires that the Planning and Land Authority ensure that the Public Register and associated documents are available for public inspection during business hours;

• the Economic Impact Assessment Report (the EIS report) is an associated document;

• this report was not available for public inspection;

• this deprived the plaintiffs of the opportunity to address representations to the Minister on the contents of the Report;

• the plaintiffs had a legitimate expectation of what was provided to them for the purpose of them making a submission being the complete development application.

46. The plaintiffs' submission is directed towards establishing that the Minister owed the plaintiffs a duty to provide natural justice at common law, and that he had breached that duty. That, of course, is one of the grounds upon which the plaintiffs wish to challenge the Minister's decision. For the reasons I give later in this decision I am satisfied that there was no requirement for the EIA report to be made available for public inspection. In any event, the plaintiffs' interest in seeing the report was to enable them to make submissions to the Minister on how the proposed development would affect their economic interests, so that for the purposes of determining standing any breach of an obligation to make the report publicly available does not advance the plaintiffs' position.

47. As the Planning Act does not by its terms provide standing to the plaintiffs to challenge the Minister's decision, the question is one of whether they, or any of them, are persons aggrieved by the decision for the purposes of the ACT ADJR Act. This, of course, is the basis of the plaintiffs' claim for relief as expressed in their Amended Originating Application.

48. Turning to the second and third bases on which the plaintiffs seek to distinguish the line of authorities referred to above (pars 32-40), they submit that the fact that one of the criteria the Minister was obliged to take into consideration is any significant adverse economic impact on other commercially viable local centres allows a distinction to be drawn between the present case and the authorities cited. In my view that is not the case. What the plaintiffs must show is that they have a sufficient interest in the decision so as to make them persons aggrieved by the decision for the purposes of the ACT ADJR Act. In the absence of persuasive evidence that the effect of the Minister's decision will be to put in jeopardy facilities presently enjoyed by the community, which will not be made good by the development itself, the plaintiffs' concern, in economic terms, is simply with proposed competition.

49. I am prepared to accept that the proposed development will have an adverse economic effect on the second and third plaintiffs. The interest of the first plaintiff is one step removed from those of the second and third plaintiffs, but it is possible that its economic interests may come to be indirectly effected by the proposed development. The fourth plaintiff raises different considerations, to which I will return. However, the evidence is not persuasive that either the second or third plaintiffs will be unable to trade if the proposed development proceeds.

50. In their written submissions, the plaintiffs submit that their interests go beyond the economic, and extend to maintenance of the hierarchy of commercial centres as referred to in the Territory Plan and the National Capital Plan. In that regard, the plaintiffs' have no greater interest in the maintenance of that hierarchy than any other member of the community, except economic interests.

51. Economic interests may provide the basis for standing under s 5 of the ACT ADJR Act. The real question is, as was noted by Pincus J in Australian Storeman Stevedors Association v Crone, whether the interests demonstrated by the plaintiffs are so directly affected as to justify the right to challenge the impugned decision. Increased competition in a marketplace will almost inevitably mean that some persons will be disadvantaged and some will be advantaged. Consumers, for example, will often, individually and as a class, be advantaged by increased competition. Businesses which may, on the face of it, appear likely to be disadvantaged may adopt trading strategies to minimise or divide that disadvantage: see Jewel Food Stores Pty Ltd and ors v Minister for the Environment Land and Planning and ors. Assessments of the likely impact of the proposed development on current trading in the Evatt and Kaleen Local Centres, whilst undoubtedly relevant, do not tell the whole story. The second and third plaintiffs are not incapable of responding to competition, and may actively position themselves to address it.

52. The final submission on this issue is that it is questionable whether the line of authority referred to "remains a basis for exclusion of complaint in planning law". In support of that proposition the plaintiffs cite Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119 at [21] - [39] per Basten JA. That decision does not deal with the question of standing. The decision simply affirms that the economic impact of a planning decision on others is a relevant consideration for planning purposes, and in particular for the purposes of the statutory scheme then under consideration.

53. In the absence of persuasive evidence that the proposed development will put in jeopardy facilities already enjoyed by the community, the plaintiffs' interests are simply that the increased competition provided by the development will have an effect on their profitability, based on how they currently run their business. In my opinion this is too remote to make the second and third plaintiffs persons aggrieved by the Ministers decision for the purposes of the ACT ADJR Act. As the first plaintiff is one step further removed in terms of the effect that the Ministers decision may have upon it, it follows that it too does not have standing to challenge the decision.

54. The fourth plaintiff cannot be said to be a representative community body. As at the date it made representations concerning the proposed development, 18 May 2011, it had five members. It was only incorporated on 17 May 2011, the day before it forwarded its representations. It continued to have five members until 23 February 2012, when two of the original members resigned and 57 new members joined. There is no evidence that the fourth plaintiff has conducted meetings or consulted with the community. In their written submissions the plaintiffs say that the fourth plaintiff was formed to represent the first, second and third plaintiffs "and others" with respect to "the question of economic impact on local centres". The fourth plaintiff has not demonstrated that it has any interest such as to grant it standing to challenge the Minister's decision.

55. The finding that none of the plaintiffs are persons aggrieved by the Ministers decision effectively disposes of this application. I will, however, briefly set out my findings with respect to the plaintiffs' substantive grounds for review of the decision.

56. The plaintiffs submit that s 50 and s 119 (1) of the Planning Act makes consistency of a development proposal with a relevant code as set out in the Territory Plan a jurisdictional fact which is a precondition to the Minister approving a development application under s 162 of the Planning Act. I am satisfied this is not the case.

57. A jurisdictional fact is simply a fact which must exist before the jurisdiction can be exercised. In the present case the jurisdictional fact alleged is compliance with the Territory Plan. The plaintiffs say, therefore, that the Minister's power to make the decision approving the development depended upon the development being consistent with the Territory Plan.

58. There is a distinction between legislative provisions that prescribe how a jurisdiction is to be exercised, and a provision that prescribes when (in the sense of, in what circumstances) the jurisdiction may be exercised. The plaintiffs submit that s 50 and s 119 (1) of the Planning Act fall into the latter category, whereas the defendants submit they fall into the former. It is not always easy to determine into which category a provision may fall. As Spigelman CJ said in Woolworths Ltd v Pallas Newco Pty Ltd and anor [2004] NSWCA 422; (2004) 61 NSWLR 707 at [9]:

The determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ. There is no bright line between jurisdictional error and error in the exercise of a jurisdiction.

59. In Capital Property Projects (ACT) Pty Limited & ors v Planning and Land Authority & anor [2007] ACTSC 95; (2007) 157 LGERA 259 Gray J was called upon to consider whether further evidence could be adduced by the plaintiff in this Court in proceedings challenging an approval of development in Fyshwick in the Australian Capital Territory. The plaintiff sought review of the decision to approve the development on the grounds that it was inconsistent with the Territory Plan. The relevant statute at that time was the Land Act. Section 8 of that Act is the equivalent of s 50 of the Planning Act, and prohibited the approval of any proposal that was inconsistent with the Territory Plan. Section 231 of the Land Act set out matters that the relevant authority was obliged to consider. After considering the High Court's decision in Corporation of the City of Enfield v Development Assessment Commission & anor [2000] HCA 5; (2000) 199 CLR 135 (Enfield), Gray J said:

In the context of planning legislation, a provision like s 8 of the Land Act is a matter that governs all decision making by those charged with that responsibility under the Act. To make such decisions requires reference to planning principles and policies set out in the Territory Plan. That will necessarily require assessments of fact and degree in the application of those principles and policies for the purposes of making those particular decisions. This then becomes very much a matter which is commented upon by Spigelman CJ in Pallas Newco at 719 [56]:

Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction.

60. Whilst s 119 (1) of the Planning Act requires consistency with a relevant code before approval may be given, it still requires the types of assessments referred to by Gray J. What is called for from a decision maker by s 119 (1) is no straightforward process of statutory interpretation as was the case in Enfield. Rather, a process of fact finding and assessment is called for. The legislative scheme I am considering is not of different effect to that considered by Gray J, and judicial comity enjoins me to follow his decision unless I am satisfied that it is clearly wrong. Not only am I not satisfied that it is clearly wrong but, with respect, I consider it to be correct.

Ground 1: The Minister did not have jurisdiction to approve the development proposal

61. I have already determined that consistency with the Territory Plan, or codes under that Plan, are not jurisdictional facts. This ground cannot succeed.

Ground 2: The decision to approve the development proposal was not authorised under the Planning Act

62. I agree with the observation of the second and third defendants that this ground impermissibly seeks review of alleged factual error in the Minister's decision. I will nevertheless refer briefly to each of the matters raised by the plaintiffs under this ground.

63. The first matter complained of is that the proposal does not comply with the provisions of the Parking and Vehicular Access General Code (the PVAGC) under the Territory Plan, because the parking provision required by the PVAGC for the proposal was not provided. The plaintiffs allege that the parking provision in the development proposal was based on a gross floor area calculation which failed to include areas on the plans described as "plant/dock", "loading dock" and "local centre storage". The plaintiffs allege that some or all of these areas were required to be included as a matter of the proper application of the term "gross floor area" as defined in the Territory Plan.

64. The PVAGC specifies parking provision rates by reference to the proposed use of land within a development. Any particular development may involve more than one use, each use attracting different parking requirements according to the proportion of gross floor area occupied by that use.

65. In my opinion there is nothing in the Territory Plan, or the relevant codes, that require the areas referred to by the plaintiffs to be included in the area of either the supermarket or the development generally for the purpose of application of the PVAGC.

66. The second matter the plaintiffs complain of under this heading is that the development proposal is inconsistent with the LCDC in that the scale of the supermarket alters the hierarchy of the Giralang Local Centre in terms of the hierarchy of commercial centres embodied in the LCDC. This complaint is based upon the proposition that the gross floor area of the proposed supermarket makes it incompatible with the objections for zone CZ4, but instead compatible with a group centre.

67. As I noted above, this ground is really a complaint about the Minister's findings on questions of fact, and is only reviewable on the basis of unreasonableness. In any event, there is no merit in the plaintiffs' complaint. As the second and third defendants point out in their written submissions, s 119 (1) (a) of the Planning Act requires consistency with the relevant codes, not with the zone objectives. Section 53 of the Planning Act provides that the objectives for a zone set out the "policy outcomes to be achieved" by applying the applicable development table and code to the zone. The objectives are not intended to operate as criteria against which proposals, or constituent parts of a proposal, are to be checked. Rather they are intended to provide guidance in interpreting the rules and criteria found in the codes.

68. The Zone Objectives for CZ4 - Local Centre Zones do not specify that a local centre, or any constituent part of a local centre, be of or below a certain physical size measured by total Gross Floor Area. Objective c) provides that it is one of the objectives that the mix of uses be appropriate to this level of the commercial hierarchy, but otherwise makes no reference to, or creates restriction based upon, physical size of the centre.

69. As the second and third defendants point out, the only limitation on the size of the proposed development, or any of its constituent parts, is found in the Draft Crown Lease for the centre, clause 3 (c) of which provides:

PURPOSE

(c) To use the premises only for one or more of the following purposes:

(i) carpark;

(ii) community use LIMITED TO health facility;

(iii) non retail commercial use;

(iv) restaurant; and/or

(v) shop PROVIDED ALWAYS THAT the maximum gross floor area for a supermarket shall not exceed 1500 square metres;

AND ancillary thereto storage and a loading dock;

PROVIDED THAT the maximum gross floor area for uses (ii) - (v) does not exceed 3,316 square metres.

(c) (sic) That the combined gross floor area of all buildings erected on the land shall not exceed 5,790 square metres;

70. The question whether the owner will, in the future, comply with the terms of the Draft Crown Lease is not one to be addressed in these proceedings.

71. Ground 2 (b) complains that the Minister's decision is contrary to s 50 and s 119 (1) (a) of the Planning Act because the development proposal is not consistent with cl 2.3 of s 2.1 of the Territory Plan in that it does not concentrate commercial and retail activity in an area that is well served by public transport, and does not strengthen and enhance existing centres.

72. Clause 2.3 is found within that part of the Territory Plan headed "Spatial Planning and Urban Design Principles - Urban Areas", which itself falls within the broader heading "Statement of Strategic Directions". These principles are intended to guide decisionmakers in the application of the codes within the Territory Plan, and the various rules and criteria found within the codes. They are not intended to be viewed as criteria against which individual developments are to be checked. In any event, they are general in their language and could not operate at the level suggested by the plaintiffs. For example, the phrase "well served by public transport" has no objective meaning, and can only serve as a guide in a judgment process. In addition, the plaintiffs have quoted selectively from cl 2.3 because it does not simply refer to the desirability of strengthening and enhancing existing centres, but also to strengthening and enhancing new centres. It will, of course, sometimes be impossible to achieve both goals.

73. Ground 2 (c) in large measure repeats the complaints made by the plaintiffs in ground 2 (a) (i), and for the reasons I have already given I reject it.

74. Ground 2 (d) complains that the Minister's decision is contrary to s 119 (2) of the Planning Act because it is inconsistent with advice given by the Conservator of Flora and Fauna in relation to the removal of regulated trees. As the second and third defendants observe at p 23 of their written submissions, this ground is misconceived because:

Section 119(2) does not require ... the Minister to comply with the advice of a related entity wherever there is no realistic alternative. Section 119(2) requires the decision-maker, before departing from the entity's advice, to be satisfied that consideration has been given to any applicable guidelines and to any realistic alternative to the proposed development or relevant aspect of it.

Ground 3: In deciding to approve the development proposal the Minister failed to take into account a relevant consideration, or in the alternative the making of the decision was an exercise of power to unreasonable that no reasonable person could have so exercised the power

75. The particulars pleaded by the plaintiffs under this ground are that the Minister relied on a report prepared by Duane Location IQ Pty Ltd entitled "Giralang Local Centre, ACT - Economic Impact Assessment" (the EIA report) in deciding that the proposed development is consistent with C33 but did not take into account supposed errors or deficiencies in the EIA report.

76. The evidence establishes that the Minister had regard to C33 in making his decision. That was all he was obliged to do. In having regard to C33 the Minister took into account the EIA report. If there are errors of fact in the EIA Report it does not follow that there was an error of law in the decision of the Minister, or that the Minister failed to take into account a relevant consideration. I am satisfied that the Minister did not fail to take into account relevant considerations as pleaded by the plaintiffs.

77. The plaintiffs' complaint that the Ministers decision is unreasonable draws upon the principles set out in Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The words of s 6 (2) (a) of the ACT ADJR Act effectively set out the test: the exercise of the power must be so unreasonable that no reasonable person could have so exercised the power. I am satisfied that this ground is not made out.

78. Grounds 3 (b) and 3 (c) must fail for the reasons given earlier in this decision.

Ground 4: In making the decision to approve the development proposal the Minister breached the rules of natural justice

79. As already stated, a development proposal in the merit track must be publically notified: s 121 (1) of the Planning Act. Section 139 (2) (d) of that Act requires that a development application in the merit track be accompanied by information or documents addressing the relevant rules and criteria. The relevant criteria with regard to the present applications include C33. The EIA report was a document addressing C33. The plaintiffs assert that the development application was required to be publicly notified and that the rules of natural justice require that public notification of a development application will include the key information and reports required to be submitted with a development application. The plaintiffs further submit that the EIA report was not included in the documents available for public inspection, and as such the plaintiffs or members of the public were deprived the opportunity of considering the EIA report and making submissions on it to the Minister. This, the plaintiffs say, constituted a breach of the rules of natural justice.

80. The second and third defendants submit that the rules of natural justice did not require disclosure of the EIA report, and in any event the plaintiffs were given a fair hearing such that no practical injustice arose from the failure to provide the EIA report.

81. I accept the second and third defendants submission that the rules of natural justice did not require disclosure of the EIA Report. Pursuant to s 28 (1) (a) of the Planning Act the public register is required to contain specified information relating to each development application. Pursuant to s 29 (1), ACTPLA has a duty to ensure that during business hours the public register is available for public inspection. Section 28 (3) (a) provides that the public register must not contain "associated documents" for development applications. However, s 29 (1) requires ACTPLA to ensure that during business hours "associated documents" are available for public inspection. An associated document for a development application is defined in s 30 (1) (a) as including "information required under s 139 (2) (c), (d) or (f) (i) to accompany an application". As the defendants point out, this section designates as an "associated document" only information that is required under the section it identifies.

82. Relevantly for present purposes section 139 (2) (d) requires that an application in the merit track be accompanied by information or documents addressing the relevant rules and relevant criteria. An applicant need not provide an economic impact statement. This is not mandated by the Act. Instead of providing a document such as an economic impact statement, an applicant may simply provide information addressing the relevant rules and criteria. Information addressing the relevant rules or criteria was included in the development application in a "Statement Against Relevant Criteria". This Statement was included in the development application, and addressed the requirements of the LCDC, including the rules and criteria set out therein. This included a section on economic viability.

83. The information which is required under s 139 (2) (d) is information addressing the relevant rules and criteria. There is no legislative prescription as to what form that information is to take. The required information was provided in the development application itself. As such there was no requirement for the information to be included in the public register in the form of the EIS.

Ground 5: The making of the decision by the Minister to approve the development proposal involved an error of law

84. The plaintiffs complain that the making of the Minister's decision involved an error of law in that it is inconsistent with the maintenance of the retail hierarchy required by the National Capital Plan and is thereby contrary to s 11 (2) of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth).

85. I accept the second and third defendants' submission that the National Capital Plan does not mandate a "retail hierarchy". I am satisfied that there was no error of law by the Minister as alleged by the plaintiffs on this ground.

86. As the plaintiffs lack standing the application for review of the Minister's decision must be refused.

I certify that the preceding eighty six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Counsel for the plaintiffs: Mr A Galasso SC and Mr C Erskine SC

Counsel for the first defendant: Dr J Griffiths SC and Mr J Hutton

Solicitor for the first defendant: ACT Government Solicitor

Counsel for the second and third defendants: Ms M Allars

Solicitor for the second and third defendants: King & Wood Mallesons

Land (Planning and Environment) Act 1991(ACT)

Decisions (Judicial Review) Act 1977

Decisions (Judicial Review) Act 1989

Capital Territory (Planning and Land Management) Act 1988

(Planning and Environment) Act 1991

Development Act 2007

Land (Planning and Environment) Act 1991(ACT)

Decisions (Judicial Review) Act 1977

Decisions (Judicial Review) Act 1989

Capital Territory (Planning and Land Management) Act 1988

(Planning and Environment) Act 1991

Development Act 2007

(2007) 157 LGERA 259

(2005) 144 LGERA 119

Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors [2012] ACTSC 102

At a glance

Court

Decision date

Source

Judgment (166 paragraphs)

Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors [2012] ACTSC 102 (6 July 2012)

Parties

Legislation Cited (12)

Cases Cited (12)