Court of Appeal (ACT)|2013-11-29

Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors [2013] ACTCA 51 (29 November 2013)

ARGOS PTY LTD & ORS V SIMON CORBELL, MINISTER FOR THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT & ORS [2013] ACTCA 51 (29 November 2013)

APPEAL - ADMINISTRATIVE LAW - appeal in respect of an application to review a decision of the Minister for the Environment and Sustainable Development to allow a commercial development application - whether corporate appellants have standing to bring the application - whether the test for standing is satisfied by reason of increased trade competition - whether the test for standing is satisfied by interest in the maintenance of the Territory Plan or the National Capital Plan

APPEAL - ADMINISTRATIVE LAW - appeal in respect of an application to review a decision of the Minister for the Environment and Sustainable Development to allow a commercial development application - whether a community association has standing to bring the application - factors that may be taken into account when considering whether a community association has standing in respect of an application for judicial review

Allan v Transurban City Link Ltd (2001) 208 CLR 167

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493

Australian Conservation Foundation Inc v State of South Australia (1990) 53 SASR 349

Australian Foreman Stevedores' Association v Crone (1989) 20 FCR 377

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247

Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85

Boots Company (Australia) Pty Ltd v SmithKline Beecham Healthcare Pty Ltd (1996) 65 FCR 282

Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266

Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1998) 100 LGERA 276

Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning (1994) 122 FLR 269

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

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

Rayjon Properties Pty Ltd v Director-General, Department of Housing, Local Government and Planning [1995] 2 Qd R 559

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552

Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516

Westfield Ltd v Commissioner for Land and Planning [2004] ACTSC 49; (2004) 136 LGERA 145

Yu Feng Pty Ltd v Chief Executive, Queensland Department of Local Government and Planning (1998) 99 LGERA 122

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 31 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

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

KOUMVARI PTY LTD ATF VIZADIS FAMILY TRUST T/AS IGA EVATT SUPERMARKET (ACN 081 122 492)

COMBINED RESIDENTS ACTION ASSOCIATION INCORPORATED

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

AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY

The appeal be dismissed.
The appellants pay the costs of the respondents.

IN THE SUPREME COURT OF THE ) No. ACTCA 31 - 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

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

KOUMVARI PTY LTD ATF VIZADIS FAMILY TRUST T/AS IGA EVATT SUPERMARKET (ACN 081 122 492)

COMBINED RESIDENTS ACTION ASSOCIATION INCORPORATED (ASSOCIATION NO. A05140)

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

AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY

1. The first appellant ('Argos') appeals the decision of the primary judge delivered on 6 July 2012: see Argos Pty Ltd v Simon Corbell, Minister for the Environment and Sustainable Development [2012] ACTSC 102. The primary judge found that the appellants lacked the standing required to challenge a decision of the first respondent ('the Minister') dated 17 August 2011. The Minister's decision granted approval to a development application for a commercial development on land known as the Giralang Local Centre, being the land at Blocks 4 and 5, Section 74, Giralang, Australian Capital Territory ('the subject land').

2. Argos holds a lease of Crown land at the location of the Kaleen Local Centre. An IGA Supermarket is located in such centre but it is not operated by Argos. The IGA Supermarket is operated by the second appellant ('Cavo') as a sub-lessee.

3. The third appellant, Koumvari Pty Ltd, is a trustee for the Vizadis Family Trust. The Trust holds a sub-lease of the Crown Lease for the site of the IGA Supermarket at the Evatt Local Centre and conducts the IGA Supermarket at that address. The fourth appellant is the Combined Residents Action Association Inc ('the Association') which was formed on 18 May 2011.

4. The third respondent ('Nikias') owns Block 4, Section 79, Giralang. Nikias has made attempts in recent years to consolidate Block 4 and the adjoining land at Block 5, Section 74, Giralang to develop such land. The earlier development applications are not relevant to this appeal. The relevant development application is that made on 27 April 2011 which 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 on the subject land. Such application was made by the second respondent ('AMC Projects') on behalf of Nikias, and was approved by the Minister on 17 August 2011. It is this decision which was challenged before the primary judge.

5. The appellants challenged the Minister's decision on the following grounds:

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

6. The primary judge found that the appellants did not have standing to claim the relief sought. Further, although it was not necessary for the primary judge to make findings with respect to the substantive grounds of the application, he did so and dismissed each ground.

7. The appellants originally raised seven grounds of appeal from the decision of the primary judge. Two of those grounds were abandoned prior to the hearing of the appeal, and further grounds were not pressed during the hearing. In view of our decision in accordance with the reasons below, namely that none of the appellants have standing, it is not necessary to set out the grounds of appeal.

8. It is convenient to restate the relevant legislation, a detailed history of which is referred to in the primary judge's decision at [7]-[29]. The critical framework can be summarised as follows.

9. Until the ACT received self government in 1989, the Commonwealth was responsible for planning in the ACT. The most recent Commonwealth planning authority was known as the National Capital Development Commission ('NCDC'). The NCDC had no comprehensive plan for the zoning of areas in the ACT, but rather planning policies were implemented by the purpose clause of each Crown Lease.

10. Following self government, the Commonwealth maintained strong control of planning through the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ('the PALM Act'). Section 5 thereof established what was originally known as the National Capital Planning Authority but is now known as the National Capital Authority ('NCA'). Section 6 provided for the preparation and administration of a National Capital Plan. As stated in s 9, the purpose of the National Capital Plan is "to ensure that Canberra and the Territory are planned and developed in accordance with their national significance". Section 10(2)(b) of the PALM Act provides that such plan "shall set out the general policies to be implemented throughout the Territory". Significantly, s 11 of the PALM Act provides:

(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.

11. In 2007 the Planning Act was enacted. It replaced an earlier act known as the Land (Planning and Environment) Act 1991 (ACT). The Planning Act divides the Territory into zones, permits broad types of development and regulates the development process. Chapter 5 makes provision for the making of a Territory Plan, the object of which is, inter alia, to ensure that planning and development in the ACT is not inconsistent with the National Capital Plan. Section 50 of the Planning Act requires the Territory, its executive, ministers and Territory authorities not to do any act inconsistent with the Territory Plan.

12. Section 51 generally sets out the contents of the Territory Plan, which includes the objectives of each zone. Section 53 provides that the zone objectives "set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone". Section 54 prescribes three assessment tracks to govern the approval process for such development proposals, being the code track, merit track and impact track. The development application relevant to this appeal was governed by the merit track.

13. The usual decision-maker for development applications is the ACT Planning and Land Authority ('ACTPLA'), which is established pursuant to s 10 of the Planning Act. However, the Minister may, under Division 7.3.5 of the Planning Act, call in any development application for consideration, as occurred in the present proceeding. Where that takes place, s 160 of the Planning Act requires the Minister to exercise the power under s 162 either to approve the application, to refuse it, or to conditionally approve it. Significantly, under s 119 of the Planning Act, approval for a development proposal must not be given for a development proposal in the merit track unless the proposal is, inter alia, consistent with "the relevant code".

14. Section 120 provides, relevantly:

In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:

(a) the objectives for the zone in which the development is proposed to take place;

(b) each representation received by the authority in relation to the application that has not been withdrawn;

15. As referred to above, the National Capital Plan (made under Part IV of the PALM Act) broadly defines land use for Canberra and the Territory and adopts seven major categories for land use. Chapter 4 thereof refers to 'Centres' and relevantly provides:

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, office and community facilities.

16. The hierarchical principle, at the metropolitan level, is described as follows:

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.

17. Chapter 4 refers to the maintenance of the integrity of the hierarchy of Centres stating:

The integrity of the hierarchy of Centres has broadly been maintained to the levels of fulfilling distinct but complimentary functions.

18. The Territory Plan (created by Chapter 5 of the Planning Act) zones the Giralang Local Centre as a Commercial CZ4 - Local Zone Centre. The zone objectives are as follows:

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

19. The overview to Part 4.3 of the Territory Plan describes the function of the Commercial Zone as follows:

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, Groups Centres and Local Centres.

20. The Territory Plan also describes the intention for the CZ4 - Local Zone Centre as follows:

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.

21. The Local Centres Development Code ('the LCDC') is contained in the Territory Plan which contains rules which operate as controls on development by way of quantitative or qualitative criteria. Relevantly, r 5.5 thereof provides:

Consideration of Impacts

Subject to Criteria 33 (C33) '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'.

22. The primary judge, on the preliminary question of standing, found that none of the plaintiffs (now appellants) was a person aggrieved by the Minister's decision, as defined in s 3B of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the 'ADJR Act'). Section 5 thereof allows a person aggrieved by a decision to which that Act applies to make an application the Supreme Court of the ACT to review the decision. The primary judge concluded that, as there was no persuasive evidence that the proposed development would jeopardise existing facilities in the community, the plaintiffs' interests, save for those of the Association, were simply that the increased competition provided by the development would affect their profitability. The primary judge concluded that such possible effect was too remote to render them 'aggrieved persons'.

23. As to the standing of the Association, the primary judge found that it could not be said to be "a representative community body", given that the Association commenced with five members and had only been incorporated the day before it made representations. His Honour noted that the membership remained static until 23 February 2012 when two of the original members resigned and 57 new members joined. However, there was no evidence that the Association conducted any meetings or consulted with the community. Accordingly his Honour found that it had not demonstrated a sufficient interest such as to give it standing.

24. The appellants maintain that they are each a "person aggrieved" within s 5 of the ADJR Act. Relevantly, "person aggrieved" includes "a person whose interests are adversely affected by the decision": s 3B of the ADJR Act. As will become apparent, the appellants rely in part on the judgment of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in Allan v Transurban City Link Ltd (2001) 208 CLR 167 to establish that they each have a "special interest". Such decision relevantly found at [15] that whether a person is a "person affected" by a decision under the Development Allowance Authority Act 1992 (Cth) is to be determined by reference to the "subject, scope, and purpose of that statute". Whilst a "person affected" and a "person whose interests are adversely affected by the decision" are not concepts necessarily of the same class, it is not controversial that the subject, scope, and purpose of a statute under which a decision is made is relevant as to the standing of a person seeking to challenge such a decision by judicial review under the ADJR Act.

25. On the facts, the alleged interests giving rise to standing of the first, second and third appellants are similar and will be considered together. For convenience, those appellants will be referred to together as the 'corporate appellants' hereunder. The alleged standing of the Association will be considered separately.

26. Broadly, there are two categories of interests of the corporate appellants that they allege to have been adversely affected by the Minister's decision to a sufficient degree to give them standing. The first category is their economic interests, including trade competition. The second category is argued further and in the alternative to the first; namely an interest in the maintenance of the hierarchy of commercial centres established by the Territory Plan and the National Capital Plan.

27. In particular, the corporate appellants claim that the primary judge erred in:

(a) holding that the second and third appellants were required to establish that they would be "unable to trade" as a consequence of the Minister's decision;

(b) requiring "persuasive evidence that the proposed development will put in jeopardy facilities already enjoyed by the community"; and

(c) holding that the first appellant's interests as the Crown lessee of the Kaleen Village Local Centre, being "one step removed" from the interests of the second and third appellants, was therefore too remote to give it standing to challenge the decision.

28. The Association submits that it has such a special interest arising from two considerations. First, the Association had the right to make a representation in relation to the development application pursuant to s 156 of the Planning Act. Second, the statement of objects of the Association was such that it would have been entitled to seek review in the ACT Civil and Administrative Tribunal had the development application been determined by ACTPLA rather than the Minister: see [13] above.

29. Before considering the position of each appellant in detail, we note that the parties referred to a number of general principles on standing. They may be summarised as follows:

(a) Unless an applicant is adversely affected to an extent greater than the public generally, such party does not have standing "to sue to prevent the violation of a public right or to enforce the performance of a public duty": Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 ('Australian Conservation Foundation') at 526. It follows that a person seeking judicial review must have a "special interest" in the subject matter of the proceedings.

(b) The "special interest" rule is flexible and must be determined by reference to the "nature and subject matter of the litigation": Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558. In the same vein, a "special interest" should be determined as "an enabling, not a restrictive, procedural stipulation": Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 ('Bateman's Bay') at [50].

(c) The requirement that an applicant for judicial review be a "person aggrieved" (s 5 of the ADJR Act) should also be construed broadly: Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1998) 100 LGERA 276 ('Canberra Tradesmen's Union Club Inc 100 LGERA 276') at 284.

(d) As a general rule, mere detriment to the economic interests of a business will not give rise to standing: Rayjon Properties Pty Ltd v Director-General, Department of Housing, Local Government and Planning [1995] 2 Qd R 559 at 561-562; Yu Feng Pty Ltd v Chief Executive, Queensland Department of Local Government and Planning (1998) 99 LGERA 122 at 128; Canberra Tradesmen's Union Club Incorporated v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266 at [39]; Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning (1994) 122 FLR 269 ('Jewel Food Stores').

30. Such general principles are well established, but must be applied and understood in the specific statutory and factual context of each case. We will do so where necessary below.

31. It was recognised by the primary judge at [51], with reference to the judgment of Pincus J in Australian Foreman Stevedores' Association v Crone (1989) 20 FCR 377 ('Crone'), that economic interests may provide a basis for standing under the ADJR Act provided that the interests of the applicants are so directly affected as to justify the right to challenge the impugned decision.

32. The parties in the present appeal relied on numerous authorities on this point. The respondents referred to Crone, in which the Federal Court held that a union and its members had no standing under the equivalent Commonwealth legislation to challenge a decision to issue a permit to an employer of non-union labour to import a ship. Pincus J considered the claim that the rival employer would gain trade at the expense of the applicant union and its members and their prospects would be lessened. His Honour found that this was too remote to give them standing: see 380, 382. To similar effect are the decisions of Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 ('Big Country') and Jewel Food Stores.

33. In Big Country, Lindgren J held that the owner of a shopping centre did not possess the requisite standing to challenge a ruling of the Australian Community Pharmacy Authority to recommend approval of an application by a tenant of the shopping centre to relocate the pharmacy. Lindgren J said at [92], referring to the equivalent Commonwealth legislation:

The "ripples of affection", in financial or commercial terms, arising from administrative decisions extend far and wide, and it is unthinkable that Parliament intended by sub-ss 5 (1) and 3 (4) of the AD(JR) Act to accord standing to every person who has a financial or commercial interest which is adversely affected by a decision, no matter how "remote" that interest may be from the decision making activity and no matter how minor the affection. The present case provides an illustration.

34. Lindgren J gave examples of potential detriment resulting from the decision to relocate the pharmacy which included possible detriment to the shopping centre at which the pharmacy had been located; the financial interests of a medical practice might be adversely affected; tenants in both centres might be affected; and potential customers might be detrimentally affected because of the need to travel a greater distance. At [93] his Honour said:

I mention these matters only to suggest the impracticality of a notion that any financial interest adversely affected falls within s 3(4) of the AD(JR) Act. Parliament cannot have intended the AD(JR) Act to operate in this way.

35. Jewel Food Stores concerned an application for review under the Land (Planning and Environment) Act 1991 (ACT) of a decision approving a redevelopment and variation to a Crown Lease at fruit markets in Belconnen. The applicants were proprietors of supermarkets in the Belconnen area. Higgins J (as he then was) considered at 279 that the test for standing under that Act, namely that a person "may be affected by" the impugned decision, would be unlikely to be narrower than the "person aggrieved" test under the ADJR Act. Accordingly, his Honour applied decisions based on the "person aggrieved" test, and found at 280 that:

[A]lthough the applicants have shown that the proposal could cause an economic impact upon them and that it is possible that that impact might be adverse, such an effect is not, in my view, sufficient to be a satisfactory basis for an application. They have merely shown, as in Crone's case, that their economic prospects have become less favourable.

36. In distinction, the corporate appellants submit that trade competition can provide a special interest sufficient to give rise to standing. They refer to the decision of Lehane J in Boots Company (Australia) Pty Ltd v SmithKline Beecham Healthcare Pty Ltd (1996) 65 FCR 282 ('Boots Company') in which his Honour held that a commercial competitor's commercial interest was a sufficient interest to provide standing for ensuring compliance with the provisions of the Therapeutic Goods Act 1989 (Cth). Similarly, in Bateman's Bay it was held that a plaintiff's commercial interests were sufficient to provide standing to challenge the question whether the establishment and operation of a rival funeral fund complied with the requirements of the Aboriginal Land Rights Act 1983 (Cth) and the Funeral Funds Act 1979 (Cth).

37. The respondents assert that both Boots Company and Bateman's Bay turned on specific circumstances; in Boots Company the applicant sought to restrain the commission of an offence, whilst in Bateman's Bay the majority found at [52] that the applicants had an interest in the relevant authority's observance of the statutory limitations upon its powers that was immediate, significant and peculiar to them. The respondents allege that no such circumstances exist in the present case.

38. Save as to each corporate appellant's alleged interest in the maintenance of the hierarchy of commercial centres in the ACT which is considered below, the corporate appellants have not identified any special interest over and above their respective economic interests. To the extent that each of the corporate appellants argue that, by itself, the possible adverse financial impact of the proposed development on their businesses constitutes an interest sufficient in itself to give each of them standing, that argument is rejected in view of the principles referred to above.

39. We turn then to each corporate appellant's alleged interest in the maintenance of the commercial hierarchy. Mr Petsas, director of Argos, claims that in 2000 Argos decided to buy the leasehold it owns upon which the Kaleen Local Centre is located in the expectation that any new supermarkets in the area would be of a size appropriate under the retail hierarchy in the Territory Plan. He submitted before the primary judge that if the Giralang development is approved, Kaleen IGA, operated by Cavo, the sublessee of Argos, will suffer significant loss of trade and could be forced to close, in which event Argos would face difficulty in locating a new tenant.

40. Cavo, as trustee for the Demos Family Trust, trades as Kaleen IGA. It has operated that store since 2001 and claims that the development at Giralang will impact upon the trade at Kaleen IGA and also may force it to close down.

41. Koumvari Pty Limited as trustee for the Vizadis Family Trust, trading as IGA Evatt Supermarket, holds a sublease of the Crown Lease for its supermarket at the Evatt Local Centre. Mr Vizadis claims that the Evatt IGA made a business decision to establish the supermarket in the expectation that any new supermarkets in the area would also be of the size appropriate under the retail hierarchy in the Territory Plan and that the Evatt IGA may be forced to close down if the Giralang development is approved.

42. With regard to the relevant legislative scheme, the corporate appellants refer to s 120(f) of the Planning Act which requires the decision-maker to consider "the probable impact of the proposed development, including the nature, extent and significance of the probable environmental impacts". They also highlight that the expression "environment" is defined in the Dictionary to the Planning Act as including "economic characteristics". Further, s 119 of that Act, when read with Criteria C33 of the LCDC, precludes the granting of development approval for a development application in the merit track unless the proposal has had regard to any significant adverse economic impact on other commercially viable local centres.

43. The corporate appellants also rely upon the fact that both the Territory Plan and the National Capital Plan refer to the hierarchy of commercial centres as a fundamental planning consideration.

44. On a slightly different basis, it is submitted that if existing shopping centres are placed in jeopardy by the proposed development as a result of either physical or financial causes which are not made good by the proposed development itself, such constitutes a relevant planning consideration. Such consideration, it is said, does not need "persuasive evidence that the effect of the Minister's decision would be to put in jeopardy facilities enjoyed by the community...", as found by the primary judge.

45. The interest claimed by the appellants in seeking the maintenance of the commercial hierarchy is analogous to that considered by Higgins CJ in Westfield Ltd v Commissioner for Land and Planning [2004] ACTSC 49; (2004) 136 LGERA 145. His Honour held that the fear of the plaintiff that it would suffer financial detriment by reason of further competition due to the construction of an Aldi Supermarket at Belconnen Markets was not sufficient to create a relevant interest. The interest which was said to take the plaintiff beyond mere economic interests, namely its desire to ensure the maintenance and integrity of the Territory Plan, was found to be no more or less than any other individual. His Honour said at [18]:

It is sufficient for me to observe that the effect claimed by Westfield on its interests did not rise beyond the economic. Its interest in the integrity of the Territory Plan was no more or less than any other person in the Territory. There is no suggestion that an alteration of the uses to be permitted at Precinct (c), the Belconnen Markets, would cause any change to or affect the amenity of Precinct (a), the Belconnen Mall.

46. In the present appeal, there is no suggestion that the amenities (such as car parking, landscaping or traffic flow) of the shopping centres owned or controlled by the corporate appellants will be affected by the proposed development. For the reasons expressed by Higgins CJ, the Court considers that the alleged interests of the corporate appellants rise no higher than that of an economic interest. Further, as was found by the primary judge, any claim to be interested in the maintenance and integrity of the hierarchy is no different to any other person of the ACT. The corporate appellants are merely concerned with addressing trade competition.

47. Finally, it was suggested by the corporate appellants that the proposition that economic impact is not a sufficient special interest to give standing is qualified. They argue that if an existing shopping facility is put "in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself", such circumstance is a relevant planning consideration: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 ('Kentucky Fried Chicken') at 687 per Stephen J.

48. This argument does not assist the corporate appellants for two reasons. First, it is not clear why the relevant consideration referred to by Stephen J would necessarily confer standing on the owners of shopping facilities that are placed in jeopardy by a proposed development. Not all relevant considerations constitute a special interest sufficient to give standing. Secondly, the reasons of Stephen J in Kentucky Fried Chicken must be read more fully. His Honour said at 687:

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.

49. As we have already found, the proposed development in the present appeal gives rise to an interest on the part of the corporate appellants in trade competition only.

50. Accordingly, we consider that the decision of the primary judge was correct in deciding that the corporate appellants lacked standing to apply for judicial review.

51. The primary judge's findings with respect to the standing of the Association have been set out at [23] above, whilst the submissions of the Association are set out at [28] above. Crucially, the Association contends that the primary judge erred in holding that it did not have the relevant special interests on the ground that it was not considered by the Court to be a "representative community body", and that instead, the relevant test is whether the Association had a special interest in the subject matter of the proceedings.

52. In support of its submissions, the Association refers to the decision of King CJ in Australian Conservation Foundation Inc v State of South Australia (1990) 53 SASR 349 ('ACF v South Australia'), where his Honour said at 354:

I would have no difficulty about affirming that the principle that a plaintiff must have an interest in the subject matter of the action beyond that which exists in the public at large, would justify the denial of standing to members of the community who, although possessing theoretical rights to make representations and to appeal if the proposed development were the subject of an application for planning authorisation, have no serious intention of exercising those rights. I cannot see any valid reason, however, for denying standing to maintain an action to prevent a development without compliance with the proper planning process, to a person who seriously intends, if the proper process is followed, to make representations and perhaps appeal against an adverse decision. A person who entertains such a serious intention seems to me to have an interest beyond that of the interest of members of the public generally in the enforcement of the law.

The special interest in such a case arises not from the impact which the proposed development will have on the plaintiff but from the threatened deprivation of the right to oppose by representations and appeal which right is conferred upon him by statute irrespective of the impact, if any, of the proposed development upon him. I think that such an interest goes beyond "the satisfaction of righting a wrong, upholding a principle or winning a contest": Australian Conservation Foundation Inc v Commonwealth per Gibbs J at 530; it relates to the preservation of the right conferred by statute to take the measures authorised by the statute to oppose the development.

53. The circumstances of ACF v South Australia however were entirely different to those that are presently on appeal. In ACF v South Australia, two plaintiff associations were denied the right conferred upon them by statute to make representations on a proposed development. It was the denial of such right that was the subject matter of the application. King CJ found, in essence, that the two plaintiff associations had standing because they had serious intentions to make representations on the proposed development, but were prevented from doing so. In the present appeal, the Association was not prevented from making a submission; indeed it did so pursuant to s 156 of the Planning Act which provides that "[a]nyone may make a written representation about a development application that has been publicly notified under [the Planning Act]" (emphasis added). The making of a representation itself does not mean that the Association has standing. Due to s 156 extending to a limitless class of persons, "mere busybodies or meddlers" (to adopt the phrase used by Crispin J at 285 in Canberra Tradesmen's Union Club Inc 100 LGERA 276) may make a written representation about a development application. The making of that representation does not automatically confer a special interest upon them.

54. In relation to the Association's submission that it would have been entitled to seek review in the ACT Civil and Administrative Tribunal ('ACAT') had the development application been determined by ACTPLA rather than the Minister, the Association refers to its statement of objects. Those objects are:

(1) To encourage and advocate for the development of local centres in accordance with the Territory Plan (including the objectives of the CZ4 Local Centre Zone, the definition of 'local centre' and the retail hierarchy), the Local Centre Development Code and the objectives of the ACT Supermarket Policy, in particular to encourage the development of local centres to:

a. provide small scale development for convenience retailing to meet daily needs;

b. provide a commercial and community focal centre with lively, vibrant character;

d. protect the local amenity of the centre and their suburbs.

(2) To encourage and advocate for the progressive, sustainable, acceptable and appropriate development of the Giralang local centre necessary to ensure and maintain the use, enjoyment and amenity of:

a. the Giralang Local centre and surrounding local centres and the Kaleen group centre, and Giralang and surrounding suburbs for residents and visitors; and

b. the homes of the residents of Giralang and surrounding suburbs.

(3) To participate in any available forums and processes related to the development of the Giralang local centre to achieve these objects, including by making representations and objections regarding proposed developments and participating in any ACAT or Court proceedings relating to the development.

55. To seek review of a development approval by ACTPLA, a person must show that they will suffer a "material detriment" as defined by s 419 of the Planning Act due to the approval: see also s 408 and sch 1 to the Planning Act. The Association submits that there is no doubt that such test would be satisfied in light of its objects. It is unnecessary to determine this question however, since even if the Association does possess such theoretical right of appeal to ACAT, it does not follow that the existence of that right also constitutes a sufficient "special interest" to grant standing.

56. As was identified by Sackville J in North Coast Environmental Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 at 512, "in order to show a special interest in the subject matter of the litigation, [a community association] cannot rely solely on its objects ... or any complaint made by it about possible non-compliance with the statutory procedures". Rather, in finding that the applicant environmental organisation in that case did have standing, his Honour identified at 512-513 the following factors as being relevant:

(a) the applicant was the peak environmental organisation in its region;

(b) the applicant had been recognised by the Commonwealth as a significant environmental organisation;

(c) the applicant had been recognised by the New South Wales government as a body that should represent environmental concerns on advisory committees;

(d) the applicant had conducted or coordinated projects and conferences on matters of environmental concern; and

(e) the applicant had made submissions in relation to issues related to the subject matter of the litigation in the past.

57. Similar factors were referred to in Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516 at 552-553.

58. Whilst it is plain that none of those particular factors is strictly necessary for a community association to establish standing, they indicate that past activities, membership and position within a specific industry are proper and relevant considerations for a court to take into account when assessing whether a community association has a special interest in litigation. As was noted by the primary judge, the Association comprised only five members and was incorporated the day prior to it making representations on the proposed development. Its membership remained static until 23 February 2012 when two of the original members resigned and 57 new members joined. There was no evidence of any activities or even a meeting undertaken by the Association to discuss the development proposal.

59. In these circumstances, there is no error in the primary judge's finding that the Association did not have any interest sufficient to grant it standing to challenge the Minister's decision.

60. Accordingly, since we uphold his Honour's finding as to standing, it follows that the appeal must be dismissed.

61. It should also be noted that Nikias and AMC Projects filed a notice of contention in relation to the primary judge's findings on procedural fairness. It is unnecessary to consider the notice of contention in view of our decision regarding standing.

62. For the above reasons, the Court dismisses the appeal with costs.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Land (Planning and Environment) Act 1991(ACT)

Aboriginal Land Rights Act 1983(Cth)

Funeral Funds Act 1979(Cth)

Capital Territory (Planning and Land Management) Act 1988

Decisions (Judicial Review) Act 1989

Development Act 2007

Allowance Authority Act 1992

(1998) 100 LGERA 276

(2004) 136 LGERA 145

Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors [2013] ACTCA 51

At a glance

Court

Decision date

Source

Judgment (148 paragraphs)

Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors [2013] ACTCA 51 (29 November 2013)

Parties

Legislation Cited (8)

Cases Cited (16)