1. Baptist Community Services initially applied to the Authority for approval of a development application for land at Block 65, Section 8, Red Hill which proposed demolition of a nursing home and construction of a retirement village comprising a complex of two-storey buildings containing 114 units and five common rooms, with parking for 145 vehicles, mostly in basement car parks. This development application was refused.[1]
2. Baptist Community Services then applied to the Authority for reconsideration, with amended plans reducing the number of units to 107 and parking spaces to 136. Upon reconsideration by the Authority, the development application was again refused.
3. Baptist Community Services then instituted proceedings for review in the Tribunal. In the course of those proceedings, the plans were further amended to reduce the number of units to 100, the common rooms to two, and the car parking spaces to 130, with some other minor modifications. The Authority indicated to the Tribunal that it was no longer opposed in principle to the development application following the reductions, although some issues remained to be resolved. However, the Parties Joined, Mr Anthony Gay and others who are local residents (Parties Joined), remained opposed to the scale of the proposed redevelopment. The Tribunal confirmed the decision under review, and the development application was refused.[2]
4. An appeal by Baptist Community Services to the Supreme Court was heard by Master Harper and dismissed.[3] A further appeal by Baptist Community Services to the Court of the Appeal was upheld in part in Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3 (3 March 2015), Refshauge, Penfold and Burns JJ. In summary, a number of matters raised in the appeal were the subject of agreement between the parties, so the Court of Appeal did not need to determine them (at [7]-[8], [72]-[76]). The Court of Appeal did consider two substantive issues. First, the Court of Appeal rejected the argument of Baptist Community Services that the relevant proposal must be approved if it complies with the applicable code in the Territory Plan (at [36], [58]), and the Authority's argument that the relevant proposal must be rejected if it is inconsistent with a relevant zone objective (at [57], [58]). The Court of Appeal held that section 120 of the Planning and Development Act 2007 (ACT) (Planning Act) gave a discretion to approve or reject a proposal that is compliant with the applicable code on the basis of the considerations there set out (at [59], [63]). Second, the Court of Appeal held that the then relevant RZ1 zone objective (a) should be read as describing the outcome of a development; the objective does not contemplate a development that would change the character of the residential environment; under section 120, such a development could, but need not, be refused approval (at [69]-[71]).
5. The Court of Appeal ordered that:
   • (a) the appeal is allowed;
   • (b) the decision of the Tribunal is set aside;
   • (c) the matter is remitted to the Tribunal to deal with the development proposal in accordance with the Planning Act and the Territory Plan, having regard to the views expressed at [58] and [59] above about section 120 of the Planning Act and at [69] to [71] above about RZ1 zone objective (a);
   • (d) costs are reserved.

The matter therefore needs to be considered by the Tribunal again.

1. At directions hearings for this further consideration, the parties indicated that in their view it would be worthwhile resolving some preliminary questions before the substantive hearing. The Tribunal therefore determined, on the application of the parties and with their consent, that it would provide answers to two preliminary questions, namely:
   • (a) whether on the further hearing, the Tribunal is to have regard to the Territory Plan
     • (i) as at the date of its decision on the further hearing; or
   • (ii) as at the date of its decision made on 22 August 2012 (the Territory Plan question); and

(b) whether evidence additional to the evidence received on the first hearing is to be admitted and, if so, in what form, and generally or in relation to specified issues only (the evidence question).

1. As noted, one substantive issue considered by the Court of Appeal was the operation of RZ1 zone objective (a) which provided:
   1. Create a wide range of affordable and sustainable housing choices within a low density residential environment to accommodate population growth and meet changing household and community needs

1. This RZ1 zone objective was amended by Plan Variation No 306, and the relevant Commencement Notice CN 2013 - 07 provided that this commenced for a development that was the subject of an application lodged prior to 18 June 2013, on 5 July 2014, and for all other developments, on 5 July 2013. For this development the amendment commenced therefore on 5 July 2014. There were no transitional provisions.
2. The new RZ1 zone objectives provide in part:

1. Provide for the establishment and maintenance of residential areas where the housing is low rise and predominantly single dwelling and low density in character 2. Protect the character of established single dwelling housing areas by limiting the extent of change that can occur particularly with regard to the original pattern of subdivision and the density of dwellings

1. Provide for a wide range of affordable and sustainable housing choices that meet changing household and community needs ...
2. Generally, the Authority, and the Tribunal on review, apply the law, including the Territory Plan, as it exists from time to time. However, that position is subject to relevant statutory provisions. Section 84(1) of the Legislation Act provides in part:

(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

The Territory Plan, including the RZ1 zone objectives, is a law for these purposes.[4] In provisions of this kind, 'right' is generally given a broad, not confined or narrow, meaning. In this case 'right' is also specifically and broadly defined to include 'capacity, interest, status and title'.[5] It is still necessary for an amendment to 'affect' such an 'accrued right' in order for section 84(1)(c) to operate, as discussed below.

1. Further this section is a 'determinative provision' under the Legislation Act, that is, it must be applied unless displaced expressly or by a manifest contrary intention[6], but not by just a contrary intention.[7] The declaration of a provision as 'determinative' indicates that it is the intention of the Legislative Assembly that, if the provision is to be displaced at all in a particular case, a more deliberate displacement is required than if the provision were a non-determinative provision.[8] The orders of the Court of Appeal cannot affect the operation of s 84(1) of the Legislation Act; it is clear that the Court did not seek to do so.
2. At the hearing of the preliminary questions, Baptist Community Services indicated that they did assert a relevant accrued right. They did so on the basis of the decision in Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (Esber), where the High Court considered a claim by Mr Esber for redemption as a lump sum of his weekly compensation payments. This claim had been rejected by the primary decision-maker, and had then been the subject of an appeal to the Commonwealth Administrative Appeals Tribunal (AAT). Before that appeal was heard, the relevant legislation was amended so that Mr Esber could no longer obtain such a redemption. A majority of the High Court in a joint judgment of Mason CJ, Deane, Toohey and Gaudron JJ held that the issue was determined by relevant transitional provisions; but also went on to consider the operation of section 8(c)[9] of the Acts Interpretation Act 1901 (Cth) (Interpretation Act), the equivalent of section 84(1)(c) of the ACT Legislation Act.
3. The Court noted that Mr Esber did not have a right to the redemption; it was subject to a discretionary decision. The Court also noted that the issue for the AAT was what was the correct or preferable decision on the material before it. Nonetheless the Court held that once Mr Esber had lodged an application to the AAT 'he had a right to have the decision of the delegate reconsidered and determined by the Tribunal', and that his right was protected by section 8 of the Interpretation Act (at 440).
4. The State Administrative Tribunal of Western Australia in a decision by Justice Barker, Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379, applied Esber in a planning decision; notwithstanding concerns that no right had existed prior to the repealing law, Justice Barker held that there was no persuasive ground to distinguish Esber, which he was therefore required to follow. Esber has been applied in other cases.[10]
5. The majority decision in Esber was subject to a dissent by Brennan J. Further, the High Court itself distinguished Esber in Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, though in a very different legislative context. Justice Kiefel, then of the Federal Court, raised issues in relation to the decision in Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108. Justice Emerton of the Supreme Court of Victoria in The Sisters Wind Farm Pty Ltd v Moyne Shire Council [2012] VSC 324; (2012) 193 LGERA 126 distinguished Esber in a planning decision, though in part on the basis of specific legislative provisions.
6. Given the absence of any transitional provision, the fact that section 84 of the Legislation Act defines 'right' broadly and is a determinative provision, the absence of any relevant express provision in the Planning Act, and the similarities between the AAT and the Tribunal, there is clearly a significant argument that the decision in Esber applies here, and that Baptist Community Services has a relevant accrued right. But as the majority in Esber noted_,_[11] the issue is essentially one of statutory construction; it depends therefore on the specific statutory context operating here. In some statutory contexts Esber has been distinguished. Also, for section 84(1)(c) to operate, the relevant amendment needs to have affected the accrued right; it is not clear that the amendment of the RZ1 objectives had a substantive effect.
7. At the hearing of the preliminary questions, counsel for both Baptist Community Services and the Authority changed their earlier position and argued that this matter should not be determined at this time as a preliminary question, on a number of bases.
8. First, the question may not arise for consideration. This is because the result in the case may be the same whichever version of the Territory Plan, and the RZ1 objectives, applies. Baptist Community Services and the Authority both suggested that the difference between the two sets of objectives is minor, and that the result is likely to be the same whichever applies. It was only in the unlikely event that the outcomes were different that the Tribunal would need to resolve the question.[12]
9. Second, whether or not the Tribunal does need to resolve the question, the matter should be considered on both bases. Baptist Community Services noted the delay in resolving this matter; and that given difficulties with the accrued rights question, the decision by the Tribunal may be the subject of further appeal. The delay occasioned by further appeals on this issue may be reduced if the Tribunal dealt with the matter on both bases. That is, even if the Tribunal is required to decide which version of the RZ1 objectives operates, since this affects the outcome of the case, the Tribunal's view on the alternative version should still be noted.[13] It was suggested that this would be more consistent with the objects of the ACT Civil and Administrative Tribunal Act 2008 (ACT), which includes to ensure that applications to the Tribunal are resolved as quickly as is consistent with achieving justice.
10. Third, it was noted in oral submissions that dealing with substantive issues as preliminary questions is not the usual course. Rather it is usual for all substantive issues to be dealt with at the final hearing. This enables evidence to be presented on all the relevant issues, and the relationships between various relevant issues to be considered in this broader context. Baptist Community Services could in effect put their case on alternative bases, the old objectives or the new objectives, and the other parties would need to respond to these.
11. The Tribunal also notes that this may be the more appropriate course here in light of the need for further consideration of related issues and the facts in determining the Territory Plan question. As discussed section 84(1)(c) will only operate if the amendment of the Plan, in particular the RZ1 objectives, made a substantive change which is relevant to the development application of Baptist Community Services. This can only be determined by a consideration of the amendment and its effect on the facts in this case.
12. The Parties Joined maintained their request for this issue to be determined as a preliminary question; they argued that there was no accrued right and that the matter should be resolved on the basis of the amended RZ1 objectives; they argued that the change was significant; and that dealing with both bases would add complexity to the proceedings.[14] The Tribunal agrees that there will be an additional level of complexity at the further hearing if this issue is not resolved as a preliminary question. However the Tribunal is of the view that this can be managed; and regards the approach proposed by Baptist Community Services and the Authority as more likely to resolve the matter in the most efficient manner.
13. The Tribunal agrees that the Territory Plan question should be dealt with, if necessary, in the context of the full hearing; and that if so, the Tribunal should record its findings under both versions of the Territory Plan, so as to allow for the efficient management of the effect of any further appeals. The order requiring the Territory Plan question to be resolved at a preliminary stage will be revoked.

1. The second question is whether evidence additional to the evidence received on the first hearing is to be admitted and, if so, in what form, and generally or in relation to specified issues only.
2. The Court of Appeal set aside the Tribunal's decision (under rule 5052(1)(d)(i) of the Court Procedure Rules 2006 (Procedure Rules)); that Tribunal decision therefore no longer has substantive legal effect. It remitted the 'matter' to the Tribunal to deal with the 'development proposal' in accordance with the Planning Act and the Territory Plan, having regard to the views expressed by the Court about section 120 of the Planning Act and the RZ1 objective (a). The Court could have, but did not, deal with the issue of further evidence.[15]
3. The joint judgment of the Court of Appeal stated that if the Court accepted Baptist Community Service's position, the matter could have been resolved by the Court ordering the approval of the development.[16] If it did not accept those arguments, then the matter would need to be remitted to the Tribunal to reconsider the 'development application' in light of the explanation of the Court about the operation of s 120 and the RZ1 objective (a).[17] There is an issue as to whether the terms of the judgment can be used to interpret the orders made.[18] Here they are in similar terms. For present purposes the only question then is what additional evidence may be proposed and considered in the further hearing by the Tribunal.
4. The Tribunal may decide its own procedure in relation to a matter.[19] In light of the terms of the orders, and reasons for the decision, of the Court of Appeal, it does seem appropriate for the Tribunal to rely on the evidence gathered in its first hearing in the further hearing. There was no challenge to this evidence, or the Tribunal's original processes, in the Supreme Court. The parties in these new proceedings indicated or implied their agreement to this course.[20]
5. It also seems appropriate that new evidence should, if a party wishes, be proposed in relation to the operation of section 120 of the Planning Act, as interpreted by the Court of Appeal, and the RZ1 zone objectives in their original form, as interpreted by the Court of Appeal, and their amended form, to the development application.
6. Baptist Community Services argued, with some support for the Authority, that no further evidence should be allowed, and referred to the decision in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) LGERA 1 (Walker) where it was held that the public interest in the finality of litigation entails that the undisturbed findings of the trial judge and the evidence at the earlier hearing do not need to be rewritten or supplemented by additional findings or evidence unless the errors of law found on the appeal require it or other circumstances make it appropriate to do so.[21] This position limiting further evidence was opposed by the Parties Joined.[22]
7. The decision in Walker concerns a first instance hearing by a trial judge, then appeals to superior courts. Even in this circumstance, the decision indicates that the trial judge undertaking the rehearing has a discretion to allow further evidence. But further, as Basten J noted at [31], it was a relevant aspect of the statutory context in that case that the appeal was from a superior court and not from an administrative tribunal. Justice Basten further noted at [38] that a different approach may be taken in respect of a claim which is to be determined in accordance with the facts as they exist at the time of the remitted decision, that is generally merits review of administrative decisions, as compared with a claim which involved the assessment of facts at a fixed time in the past, generally judicial review or first instance trials. Walker fell within the latter category. But this case falls within the former.
8. The Tribunal is providing merits review of an administrative decision, and in doing so is required to stand in the shoes of the original decision maker, the Authority, and make the correct or preferable decision at the time of the further hearing, based on material then before the Tribunal.[23]
9. The effect of a remittal in this situation was considered by the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, where at [7] Gleeson CJ said that the consequence of an order of the Federal Court that a decision of the Refugee Review Tribunal be set aside, and the matter remitted to be determined in accordance law, was that the Tribunal 'would be obliged to determine, in light of the circumstances existing at the date of such new determination, and of the information before ... [it] at that time, all questions of fact and law relevant to the respondent's claim to refugee status.'[24]
10. There are also Federal Court decisions considering this issue in relation to remittal to the AAT. The Full Court of the Federal Court in Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 suggested that where a court sets aside a decision and orders that the matter be remitted to the AAT for further consideration in accordance with law, in the absence of an express limitation in the orders, new evidence can be considered and, indeed, the whole of the matter must be considered by the AAT at the hearing of the remittal. It is clear that the orders in this case would not amount to such an 'express limitation'. More recently in Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 55 AAR 349 the Full Court of the Federal Court also held that where a court set aside a decision and ordered that the matter be remitted to be determined in accordance with law that it cannot be said that the remittal is confined to those issues in respect of which the point of law was made out on appeal.[25]
11. For present purposes, all that needs to be said is that new evidence could well be relevant to the fundamental task in these further proceedings, that is, of determining the correct or preferable decision at the time of the further hearing. The Tribunal should not prevent such further evidence being proposed. Such evidence can of course be objected to at the further hearing.
12. In summary:

(a) the Tribunal will admit as evidence in the new hearing the evidence gathered in the earlier Tribunal hearing;

(b) new evidence can be proposed by a party in relation the operation of section 120 of the Planning Act, as interpreted by the Court of Appeal, the RZ1 zone objectives in their original form, as interpreted by the Court of Appeal, and in their amended, current form, to the development application;

(c) new evidence can also be proposed by a party in relation to other issues which go to what is the correct or preferable decision in relation to the development application at the time of the new hearing; and

(d) this will not prevent any other party objecting to this evidence at the hearing.

1. The evidence question should therefore be answered: yes, in the usual form of witness statements, in relation to the issue before the Tribunal of what is the correct or preferable decision on the development application at the time of the further hearing, and subject to determination of any objections made at that further hearing. Appropriate orders will be incorporated into the timetable which will now be set.

Anthony Phillip Gay, Gavin Alexander Back, Melissa Bennett, John Copland, Rohan Pitchford

[1] The summary set out here and in the following paragraphs is primarily taken from Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3 at [4], which is in turn taken from Baptist Community Services v ACT Planning and Land Authority [2013] ACTSC 103

[2] Baptist Community Services - NSW and ACT and ACT Planning and Land Authority [2012] ACAT 58

[3] Baptist Community Services v ACT Planning and Land Authority [2013] ACTSC 103

[4] Sections 4 and 13 of the Legislation Act

[5] Section 84(6) of the Legislation Act

[6] Sections 6(1) and (2) of the Legislation Act

[7] Section 6(3)

[8] Section 6(4) of the Legislation Act

[9] Now section 7(2)(c)

[10] Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473; Yao v Minister for Immigration and Ethnic Affairs [1996] FCA 1792; (1996) 69 FCR 583; see also Pearce, Dennis and Robert Geddes, Statutory Interpretation in Australia (8th edition, 2014) at [6.14]

[12] Submissions of the Applicant filed 19 June 2015, at paragraphs 7(b) and (c); Submissions of the Respondent dated 18 June 2015, at paragraphs 9-11

[13] Submissions of the Applicant filed 19 June 2015, at paragraph 20; Submissions of the Respondent dated 18 June 2015, at paragraph 12; Further Submissions of the Respondent dated 26 August 2015, at paragraph 4

[14] Submissions of the Parties Joined dated 22 July 2015, at paragraphs 17-21

[15] Rule 5052(1)(d)(ii) of the Procedure Rules

[18] Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 55 AAR 349, especially at [37]-[38]

[19] Section 23 of the ACT Civil and Administrative Tribunal Act 2008 (ACT), see also section 26

[20] Submissions of the Parties Joined dated 22 July 2015, at paragraph 26

[21] Submissions of the Applicant filed 19 June 2015, at paragraphs 4 and 21; Submissions of the Respondent dated 18 June 2015, at paragraphs 24-29

[22] Submissions of the Parties Joined dated 22 July 2015, at paragraphs 22-27

[23] Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACT); Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440

[24] See also Gleeson CJ at [16]-[18]; Gummow and Hayne JJ at [68]-[79]

[25] See also Re Lees and Repatriation Commission [2004] AATA 583; [2004] 38 AAR 551; Repatriation Commission v Yates (1997) 46 ALD 487 which concerned an order that the 'matter' be remitted to the Tribunal 'to be heard and decided in conformity with the reasons for judgment', an order similar to the one here