Planning and Development Act 2007 (ACT), ss 50 to 55, 119, 120

ACT Civil and Administrative Tribunal Act 2008 (ACT), s 86

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481

Birdseye v ASIC [2003] FCAFC 232; (2003) 38 AAR 55

Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302

Cole and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194

Collector of Customs v Agfa-Gevaert [1996] HCA 36; (1996) 186 CLR 389

Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522

Eastman v Commissioner for Housing [2008] ACTSC 1

HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34; (2006) 149 FCR 291

HR Products Pty Ltd v Collector of Customs [1990] FCA 152; (1990) 20 ALD 340

ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257

John Flynn Community Group Inc and Another v ACT Heritage Council (2012) 6 ACTLR 266

Minister of Primary Fisheries v Austral Fisheries [1993] FCA 45

North Broken Hill Ltd v Tumes [1999] NSWCA 309

TNT Skypak International (Australia) Pty Ltd v Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175

Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 81 ALD 690

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278

ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

1. Leave be granted to the applicant to appeal from the decision of the ACT Civil and Administrative Tribunal made on 22 August 2012.

1. The applicant seeks leave to appeal from a decision of the ACT Civil and Administrative Tribunal. On 22 August 2012 the Tribunal confirmed a decision of the respondent, the ACT Planning and Land Authority, to refuse a development application under the Planning and Development Act 2007.

2. Section 86 of the ACT Civil and Administrative Tribunal Act 2008 provides that a party to an application for review of a decision under that Act may appeal to this Court on a question of law, but only with the leave of the Court.

3. The applicant is the Crown lessee of a rectangular block of land at Red Hill upon which it has since the 1960s operated aged care accommodation known as Morling Lodge. The improvements on the land consist of a residential aged care facility for 105 residents, eighteen independent living units and a small administration building. The land has an area of 22,683 m2. It has a frontage of about 100 m to Hicks Street and a length of about 240 m. To its south it adjoins a primary school. Its northern and western boundaries adjoin the rear boundaries of some ten houses which have their frontages to other streets in the suburb. A rear driveway connects with a cul-de-sac, Supply Place.

4. The applicant is in the process of building a new facility near the Griffith shopping centre, Gracewood Griffith, to which the residents of Morling Lodge will be transferred when it is complete. The residents of the independent living units have been relocated. The applicant intends to demolish the improvements on the block, and to build new independent living units on the site.

5. The second respondents are residents of adjoining or nearby houses.

6. The applicant initially applied to the Authority for approval of a development application which proposed a complex of two-storey buildings containing 114 units and five common rooms, with parking for 145 vehicles, mostly in basement car parks. This application was refused. The applicant 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.

7. The applicant 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 second respondents remained strongly opposed to the scale of the proposed redevelopment. The second respondents have accordingly become the principal contradictor, both in the Tribunal and in this Court.

8. The purpose clause in the Crown lease for the land limits its use to "a home for aged persons and purposes ancillary thereto". Although the proposed redevelopment does not include a residential aged care facility (the expression used in Commonwealth legislation for what used to be called a hostel or a nursing home) none of the parties raised any issue as to compliance of the proposed development with the clause.

9. It is common ground that no redevelopment of the block can take place without the lodgement of a development application with the Authority, and the Authority's approval of that application, subject to any conditions the Authority may impose in giving approval. The Tribunal has power to review a decision of the Authority refusing approval, and in doing so stands in the shoes of the Authority. The Tribunal can endorse the refusal, or overturn it and approve the development application, with or without the imposition of conditions.

10. The relief sought by the applicant in this Court is the remitter of the application to the Tribunal to be reheard. The applicant does not ask the Court to substitute for the order of the Tribunal an order approving the development application, with or without conditions.

11. The Planning and Development Act refers to, and may be said to incorporate, the Territory Plan. Section 50 of the Act provides that the Territory, the Executive, a Minister or a Territory authority must not do any act, or approve the doing of an act, that is inconsistent with the Territory Plan.

12. Section 51 prescribes what must be in the Territory Plan, including zone objectives and codes. By virtue of s 53, the objectives for a zone are to set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone. Each objective for a zone must be consistent with the statement of strategic directions. Section 54 requires the making of development tables which govern the course of the approval process, and define which code applies to particular types of development. Section 55 deals with codes, which are to set out detailed rules and criteria for types of development. These must be consistent with zone objectives.

13. The present development application was assigned by the development table to what is called the merit track, governed by Division 7.2.3 of the Act, which includes s 119 and s 120.

14. Section 119 provides that approval must not be given unless the proposal is consistent with the applicable code.

15. Section 120 provides that in deciding a development application in the merit track, the decision-maker must consider a range of matters, which include the objectives for the zone in which the development is proposed to take place, and any representations made.

16. The parties are agreed that compliance with s 119 is mandatory, whereas s 120 does not mandate compliance with or consistency with the zone objectives but merely obliges the Authority to consider them. The expression "must consider" is commonly used in legislation, for example as to statutory authorities with power to issue licences (Gaming Machine Act 2004, s 26A(4); Liquor Act 2010, ss 68, 76, 85) and even courts in deciding whether or not negligence has been established (Civil Law (Wrongs) Act 2002, s 43, s 45). The expression has been held to require the decision-maker to give "proper, genuine and realistic consideration" to the factors specified: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589; Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226.

17. The block here in question is zoned RZ1 (Residential). This zone includes single dwelling houses, and also multi unit housing and retirement complexes. The zone objectives for the RZ1 suburban zone are as follows:

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.
2. Ensure development respects and contributes to the neighbourhood and landscape character of residential areas.

1. Provide opportunities for home-based employment consistent with residential amenity.

1. Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity.
2. Promote energy efficiency and conservation and sustainable water use.

18. A code which applies to the proposed development is the Residential Zones Multi Unit Housing Development Code (a number of other codes also apply but are not presently relevant). The one criterion laid down in the Multi Unit code which the parties accept has application is criterion 87:

Where a Neighbourhood Plan exists, development demonstrates a response to the key strategies of the relevant Neighbourhood Plan.

19. A Neighbourhood Plan for the suburb of Red Hill was prepared by the Authority in 2004. There was some disagreement between the parties as to which parts of the Neighbourhood Plan were applicable to the Morling Lodge land. The block is located in a residential area. The key strategies for residential areas are set out in the neighbourhood plan as follows:

• Provide a diversity of housing choice for singles, couples and families of different sizes and ages in appropriate locations.

• Promote high-quality residential development that is sympathetic to the existing garden suburb neighbourhood character in terms of scale, form and landscape setting.

20. Some confusion arises because Morling Lodge is specifically mentioned in the Neighbourhood Plan under the heading "Community Facilities", along with schools, other aged care accommodation, doctors' surgeries, sporting facilities and parks. The key strategies for Community Facilities are as follows:

• Retain the integrity of land defined under the Territory Plan as Community Facility

• Ensure that adequate Community Facility land is available for the needs of current and future residents.

21. It seems to me that Morling Lodge was mentioned as a Community Facility through a misconception. The Morling Lodge land was not zoned or defined as Community Facility land. In any event, the land would be used for essentially the same or at least a similar purpose as previously if the development application were approved, and there is no suggestion that approval would reduce or otherwise interfere with the availability of adequate Community Facility land. Having said that, clearly enough the Morling Lodge block is situated in a residential area so that the applicable key strategies under the Neighbourhood Plan are those for residential areas.

22. The application for review was heard by the Tribunal, constituted by Dr McMichael and Ms Corby, Senior Members, over a period of six days. As before the Court, the applicant was represented by Mr Erskine SC and Mr Arthur, and the respondent by Mr Walker of counsel. The parties joined (the present second respondents) appeared unrepresented. Before the Court they have been represented by Mr McCarthy of counsel. The Tribunal members had the benefit of a view of the site. They heard evidence from architects, landscape architects, town planners and engineers. They reserved their decision and delivered reasons (fifty-two pages) some weeks later. They upheld the decision of the Authority on reconsideration, concluding that the development application should be refused. They indicated at the end of their reasons that some problems they had identified might be avoided by a smaller development of the order of fifty to seventy units. That indication should not be taken to mean that the development application, amended to reduce the number of units to within that range, would necessarily be approved by the Tribunal on remitter. Senior counsel for the applicant has submitted that if remitted, the application for review should be heard by a differently constituted tribunal, Dr McMichael and Ms Corby having expressed a view as to the appropriate range of independent living units which would justify approval. How a differently constituted Tribunal might deal with the matter is entirely speculative.

23. The Tribunal identified the issues by reference to matters raised by the parties joined (the second respondents) under the following headings:

a) Whether the proposed development was permissible under the lease purpose clause.

b) Whether the scale of the development was consistent with the objectives of a RZ1 zone and demonstrated a response to the key strategies of the Red Hill Neighbourhood Plan.

c) Whether the development would impact adversely on the landscape character of the neighbourhood.

24. The Tribunal arrived at the view that the development would not be inconsistent with the purpose clause in the Crown lease. That conclusion is not challenged on appeal.

25. Similarly, the Tribunal found against the parties joined on the question of adverse impact on the landscape character of the neighbourhood. They do not take that question further on appeal.

26. The Tribunal would not have rejected the proposal by reason of any of the traffic or parking issues raised by the objectors.

27. The Tribunal upheld the Authority's decision to refuse approval for the development application solely because of the second concern raised by the objectors, as to the scale of the development, its consistency with the zone objectives, and its response, or lack of it, to the key strategies in the Neighbourhood Plan.

28. In relation to that issue, the Tribunal carefully analysed the evidence and submissions of counsel. The focus of the Tribunal members was on the density of the development. They saw the proposal as one of a medium density development within an RZ1 zone. They quoted zone objectives (a) and (b) for an RZ1 suburban zone. They found that the proposal failed to maintain a low density residential environment, and to respect and contribute to the neighbourhood and landscape character of the residential area. They said that viewed overall, the development would be considerably denser than the adjacent development. What was proposed was significantly greater in density, by any reasonable measure, than the neighbourhood in which it was to be located. They held that the scale of the proposed development made it inappropriate. They commented that a smaller scale facility might have raised no more objection from the community than Morling Lodge had done over the previous forty years. They noted that the level of community concern about the proposal had been unusually great, and generally sustained over a number of years.

29. The Tribunal then considered whether the development addressed the key strategies of the Red Hill Neighbourhood Plan. They took these (correctly in my view) to be the strategies for residential areas. They did not advert to the key strategies for Community Facility land. Their concern was that the proposal did not address the second strategy, in that the proposed development was not sympathetic in terms of scale with the existing neighbourhood character.

30. The Tribunal noted that in its assessment of the original plans, the Authority had expressed the view that "the built form did not have a domestic character and was not compatible with the locality that comprises detached single dwellings on large blocks in well landscaped settings", "the built form is not of a scale compatible with existing development in the area", and "the bulk and scale of the proposal is inconsistent with RZ1 objectives and results in a development that does not respect the neighbourhood character of the area". In relation to the reconsideration plans, they noted that the Authority had observed that "the changes to the Hicks Street facade which is considered acceptable have not been adequately carried through to the rest of the development to reduce bulk and scale".

31. They noted that the Authority had since accepted that the further amended plans reducing the village to 100 independent living units had altered the position, and that the proposal was by then largely consistent with the applicable codes. The Tribunal accepted that the plans had "gone some way towards reducing the bulk and scale of what was originally proposed" but did not agree "that the changes made are sufficient to achieve the level of compatibility with the adjacent residential development that is an objective of an RZ1 zone."

32. The concluding paragraphs of the reasons of the Tribunal were as follows:

181. The Tribunal recognizes the efforts that have been made by the applicant to create a redevelopment scheme for the Morling Lodge facility that would provide a high-quality living environment for older persons who decide to enter a retirement village. However, in doing so, the applicant has proposed a development of a scale that still cannot, in our view, be said to be within a low density environment nor can it be said to respect and contribute to the neighbourhood. It remains therefore inconsistent with the first and second objectives of an RZ1 zone. Nor do we consider that what is proposed would be sympathetic to the existing garden suburb neighbourhood character in terms of scale and form and hence, in our opinion, it does not adequately address one of the key strategies of the Red Hill Neighbourhood Plan.

182. As we have noted, there could be traffic and parking problems arising from the proposal, depending on the number and level of usage of cars by residents especially those in the Montague buildings. These potential problems could be avoided by a smaller development in the order of 50 to 70 units, including a reduction in the number of units in the Montague buildings. Such a reduction in size would in all probability overcome the inconsistencies with the zone objectives and the key strategies of the Red Hill Neighbourhood Plan.

183. The Tribunal concludes that for the reasons given above, the application for development approval should be refused.

33. The draft notice of appeal sets out the questions of law to be raised as follows:

a) Does s 120 of the Planning and Development Act 2008 [sic] have the effect that a proposal that is incompatible with any one matter that is required to be considered under the section must be refused development approval?

b) Does the zone objective (a) of the RZ1 zone under the Territory Plan 2008 have the meaning that a development is to be of low density, or does it set out an objective of promoting a wide variety of affordable and sustainable housing choices?

c) Does the zone objective (b) of the RZ1 zone have the meaning that a development is required to be compatible with the adjacent residential development?

d) Is criterion 87 of the Multi Unit Housing Code within the Territory Plan 2008 valid?

e) If it is valid, does it mean that a development must adequately address a key strategy in the relevant Neighbourhood Plan?

34. The notice of appeal expresses the grounds of appeal as follows:

a) interpreting s 120 of the Planning and Development Act as requiring compatibility with each matter set out in the section, rather than its true meaning that the matters in the section were only required to be taken into consideration in reaching its decision;

b) failing to consider under s 120 whether, assuming that the proposal was not compatible with two of the zone objectives, it could nevertheless still be approved;

c) misinterpreting zone objective (a) of the RZ1 zone as requiring a proposal to be assessed as being of low density even though it otherwise complied with the relevant codes under s 119;

d) misinterpreting zone objective (b) of the RZ1 zone as requiring a proposal to demonstrate a level of compatibility with the adjacent residential development;

e) applying criterion 87 of the Multi Unit Housing Code when that criterion was invalid as being uncertain or unreasonable;

f) in the alternative to (e) misinterpreting criterion 87 as requiring a proposal to adequately address the key strategies in the Red Hill Neighbourhood Plan, when the criterion actually requires it to demonstrate a response to those strategies.

35. The orders sought in the draft notice of appeal are that the decision of the Tribunal be set aside and that the matter be remitted to a differently constituted Tribunal to be heard and determined according to law.

36. Burns J set out in John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council (2012) 6 ACTLR 266 a number of principles applicable to an appeal on a question of law. The appeal for which leave is sought by the applicant is limited to an appeal on a question of law by s 86(2) of the ACT Civil and Administrative Tribunal Act. The principles set out by Burns J are as follows, at [16]:

a) The court's jurisdiction is confined to a "pure question of law": Birdseye v ASIC [2003] FCAFC 232; (2003) 38 AAR 55 at [18]; Eastman v Commissioner for Housing [2008] ACTSC 1 at [18].

b) An appeal on "a question of law" is narrower than an appeal "involving a question of law": TNT Skypak International (Australia) Pty Ltd v Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 178.

c) A "question of law" does not include a question of mixed fact and law: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 287; Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 at [16]; Eastman at [20].

d) The function of the court, on appeal, is "limited to the identification of an erroneous answer in respect of a question of law": B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [150]. That is to say, the Court's function is to determine whether the decision of the Tribunal was right or wrong in law on the evidence before it, and according to the law as it stood at the time the decision was given: Cole and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [12].

e) The error of law, if established, must be of a kind that would entitle the intended appellant to the relief it seeks: Eastman at [21]; HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34; (2006) 149 FCR 291 at [5], [6] and [33].

f) The appeal does not extend to a factual question; or making findings of fact; or making an evaluative judgment based on facts found by the Tribunal; or exercising a discretionary power vested in the Tribunal unless the finding or order was the only one that was open; B & L Linings at [13], [14], [38]-[55], [75]-[78] and [139]; North Broken Hill Ltd v Tumes [1999] NSWCA 309 at [25]; ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 at [19].

g) Where an appeal is sought on "a question of law", the subject matter of the appeal is the question or questions as stated in the notice of appeal: Comcare v Etheridge at [13]-[16]; Eastman at [19]. The ambit of the appeal is confined to that question or those questions: Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302 at 304.

h) The construction of legislation is a question of law: HR Products Pty Ltd v Collector of Customs [1990] FCA 152; (1990) 20 ALD 340.

i) The failure to take account of relevant considerations or taking account of irrelevant considerations amounts to error of law.

j) A finding on a question of fact can be reviewed if it is vitiated by error of law: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54.

k) A failure to take account of particular pieces of evidence is not an error of law: Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 81 ALD 690.

l) The question of whether facts fully found fall within the provisions within a statutory enactment properly constructed is generally a question of law: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389.

37. Senior counsel for the applicant submits that the Tribunal made two basic legal errors. First, it misunderstood its task under s 120 of the Planning and Development Act. Secondly, it misinterpreted the meaning of the zone objectives it was considering.

38. As to the first asserted error, the applicant submits that the Tribunal took the mistaken view that it was obliged to refuse the development application in the event of any failure to comply with a matter set out in s 120 of the Planning and Development Act, whereas the section merely lists a range a matters which must be considered. The section requires the decision-maker to consider the objectives for the zone in which the development is proposed to take place. The applicant argues that the Tribunal misinterpreted this as obliging it to refuse the application if it did not meet the objectives for the applicable zone (the RZ1 zone), whereas all it was required to do was to consider the objectives in arriving at its decision. The applicant submits that the error made by the Tribunal is plain because of the absence of any weighing or assessment of the importance of the objectives in its reasons.

39. The second error on which the applicant relies relates to the interpretation of objectives (a) and (b) for the RZ1 zone, set out at [17] above. As to objective (a), the applicant submits that the Tribunal interpreted this as requiring the particular development under consideration to be itself of low density, whereas the words "within a low density residential environment" should be read as applying to the RZ1 zone as a whole, rather than to any individual development.

40. The applicant submits that the Tribunal misinterpreted objective (b) as requiring a new development to replicate the surrounding area, rather than merely respect and contribute to it.

41. The applicant further submits that the Tribunal fell into error in relation to criterion 87 under the Residential Zones Multi Unit Housing Development Code, set out in [18], specifically by having regard to the key strategies for residential areas under the Red Hill Neighbourhood Plan rather than the key strategies for community facilities. I have already said at [21] that this criticism of the Tribunal is unjustified, because in my view the applicable key strategies were those for residential areas.

42. The applicant submits that in any event criterion 87 is so meaningless and capricious that it is invalid. The applicant relies on the decision of the Full Federal Court in Minister of Primary Industries v Austral Fisheries [1993] FCA 45 as authority for the proposition that in some circumstances subordinate legislation can be declared invalid where it is uncertain, unreasonable, capricious, irrational, illogical or not reasonably proportional to the object of the legislation.

43. In any event, the applicant submits, the Tribunal misunderstood the meaning of the key strategies for residential areas, set out at [19], in particular the second strategy requiring development to be sympathetic to the existing garden suburb neighbourhood character in terms of scale, form and landscape setting. The applicant submits that the Tribunal wrongly interpreted this as requiring the development it was considering to replicate the density of the surrounding neighbourhood, rather than being sympathetic to the development of the surrounding neighbourhood. Further, the applicant submits that in interpreting that key strategy, the Tribunal should have had regard to the whole of the suburb of Red Hill, rather than just the immediate area surrounding the proposed development.

44. Counsel for the first respondent (the Planning Authority) agrees that the Tribunal made an error in interpreting RZ1 objective (a) as requiring the development to maintain a low density residential environment. Counsel's submission was that the words "low density environment" were merely descriptive of the environment, in which it was possible that a higher density development might be permitted. The Tribunal appeared to express the view that the proposed development itself had to be low density. The Tribunal had made the same error in relation to objective (b), apparently finding that because the proposed development was not low density, it did not therefore respect or contribute to the low-density neighbourhood and landscape character of the area. This was an error, it being perfectly possible for a development which was not itself low density to respect and contribute to the low-density character of an area.

45. Counsel for the Planning Authority did not accept the argument of the applicant that criterion 87 under the Residential Zones Multi Unit Housing Development Code was invalid.

46. Counsel for the second respondent (the objectors to the development) submitted that on a proper analysis of the reasons of the Tribunal, no error of law had been made. The Tribunal had considered the matters it was required to consider, and had arrived at a decision in its discretion to affirm the decision of the Authority. It was clear from the reasons that the Tribunal had understood that the zone objectives were required to be considered but did not constrain the Tribunal as to how the application was to be determined, and certainly did not require it to refuse the application if the objectives were not met.

47. The objectors submitted that criterion 87 was a qualitative criterion, which the developer was required to satisfy. The Tribunal concluded on the evidence, as a finding of fact, that the developer had not done so. It had not been open to the Tribunal to treat criterion 87 as invalid. The validity of criterion 87 had not been raised before the Tribunal and the Court should not permit its validity to be raised for the first time on appeal.

48. Further, counsel for the objectors submitted that the questions listed in the draft notice of appeal did not arise from the reasons for decision, and a fair reading of the reasons did not give rise to any of the alleged errors of law. The appellant had failed to identify a pure question of law, a favourable answer to which would entitle the applicant to the relief sought in the notice of appeal. Leave to appeal should accordingly be refused.

49. As to section 120 of the Planning and Development Act, there is no issue between the parties that the section obliges the decision-maker to consider the various matters specified but does not necessarily lead to refusal of a development application merely because a proposed development does not meet all of these objectives of the applicable zone. This proposition is clearly correct. The only question is whether the Tribunal, in error, saw itself as obliged to affirm the refusal of the development application purely because it did not meet one or more of those objectives.

50. I read the reasons of the Tribunal as showing that the Tribunal members understood that they were required to consider the zone objectives, and that in determining the application, they did so. The reasons cannot be read as showing that the Tribunal thought that it could approve only a low-density development by reasons of the fact that the development was surrounded by single houses on large blocks of land. It is clear from the reasons that the Tribunal thought that it would have been appropriate to approve a development on the land of a retirement village comprising at least 50 and perhaps as many as 70 independent living units on the land. Such a development would patently be of considerably higher density that the surrounding houses. It is plain from reading the reasons that the Tribunal did not take the view that it could approve only a development which replicated the immediately surrounding residential area. Clearly the Tribunal interpreted zone objectives (a) and (b) as matters to be taken into consideration in arriving at a decision, and decided that was relevant to those objectives.

51. The same point can be made about the way in which the Tribunal took into account the key strategies for residential areas set out in the Red Hill Neighbourhood Plan, as required by criterion 87. The Tribunal took the view that the proposed development had to be sympathetic to the existing character of the neighbourhood, in terms of scale amongst other things. It is apparent that the concern of the Tribunal was with the scale of the development. This was a proper factor for the Tribunal to take into account.

52. As to the validity of criterion 87: in the first place, it does not seem to me that a declaration that the criterion is invalid would inevitably lead to the appeal being upheld. Further, in the normal course a party should not be permitted to raise on appeal for the first time a question of this kind which was not raised below. Having said that I am not persuaded that criterion 87 is invalid. It must be appreciated that it is not a section in an Act or a Regulation. It is at a considerably lower level in the hierarchy of delegated legislation. A Code cannot be expected to be drafted with the precision of an enactment. A Code is drafted so that it can be understood by the members of the community affected by it. It is not to be expected that such members of the community will need to engage a lawyer for advice as to its interpretation. Codes, too, will often be expressed in language at a level of generality which would be inappropriate in an Act or Regulation. The requirements put in place by a Code will often be qualitative rather than precise and prescriptive. Criterion 87 is such a provision. Its generality is appropriate within a Code. Its wording might be criticised as, to some degree, bureaucratic jargon, but it is intelligible and for those reading it and endeavouring to comply with it, it conveys its intended meaning adequately. Accordingly, if I had thought it appropriate to embark on determining its validity, I would have found it valid.

53. I am not persuaded that the Tribunal regarded itself as bound to affirm the decision under review purely because the proposed development did not meet each of the RZ1 zone objectives. On the contrary, I am satisfied that the Tribunal appreciated that it was required in determining the application to consider each of the objectives, and that it did so. The Tribunal principally affirmed the refusal of the development application because of the scale of the proposed development. This was a course open to the Tribunal in the exercise of its discretion, having heard the evidence and arrived at its findings of fact. I am not persuaded that in doing so, the Tribunal made any error of law.

54. The objectors submit that in these circumstances the preferred course is for the Court to refuse the application for leave to appeal. Senior counsel for the applicant points out the development application is in respect of a significant development worth millions of dollars, involving a parcel of land of over 22,000 m², or the equivalent of more than twenty-five suburban blocks in the area. Counsel referred to the strong public interest of having the requirements of sections 199 and 120 of the Planning and Development Act, and the Territory Plan itself, properly applied in such circumstances. Certainly some of the arguments against granting leave to appeal from the Tribunal, for example those set out in Levet and Levet v Dalla (2012) 6 ACTLR 190 at [47], are not applicable in a matter involving issues of this magnitude.

55. Counsel for the first respondent (the Planning Authority) did not suggest that a grant of leave was inappropriate. Counsel for all parties agreed that the application for leave and the appeal itself should be heard together. Almost all of the argument as to the merits of the appeal would have had to been heard on the leave question alone, so that the proposed course was clearly a practical and sensible one.

56. In all of the circumstances it seems to me that the better course is to grant leave to appeal. However, for the reasons I have given, the appeal should be dismissed.

57. I was informed at the end of the hearing that it has been agreed that regardless of the outcome, no party would seek an order for costs against any other party. Accordingly I shall make no order as to costs.

58. The only orders which need to be made are that the applicants have leave to appeal, and that the appeal be dismissed.

I certify that the preceding fifty-eight numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Counsel for the applicant: Mr CM Erskine SC & Mr RJ Arthur

Solicitor for the first respondent: ACT Government Solicitor