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Refshauge and Penfold JJ: Introduction

1. This is an appeal from a decision of the Master (Baptist Community Services v ACT Planning and Land Authority and Anor [2013] ACTSC 103) dismissing an appeal on a question of law from the ACT Civil and Administrative Tribunal (the Tribunal). The second respondent has filed a submitting appearance, except as to costs, so the only contest in this appeal is between the appellant, Baptist Community Services, and the first respondent, ACT Planning and Land Authority (ACTPLA).

2. Thanks to constructive discussions between counsel before the appeal was called on, the issues in dispute in this appeal have been usefully narrowed. ACTPLA agrees that this appeal should be allowed, but there remains disagreement about the basis on which it should be allowed, and about the directions that should be given to the Tribunal if the matter is referred back to the Tribunal for further consideration.

Background

3. The appellant is the Crown lessee of a block of land in Red Hill where it has, for many years, operated an aged care facility known as Morling Lodge. The appellant proposes to relocate the current residents of that facility to a new facility elsewhere, and wishes to demolish the existing accommodation and build new independent living units on the site. The second respondents are residents of several private residences near or adjoining the block leased by the appellant.

4. The history of these proceedings was described by the Master in his judgment as follows: 6. The applicant initially applied to [ACTPLA] 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 [ACTPLA] for reconsideration, with amended plans reducing the number of units to 107 and parking spaces to 136. Upon reconsideration by [ACTPLA], 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. [ACTPLA] 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. The appeal to the Master

5. The Master identified the question raised before him at [49] in his judgment: 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.

6. His Honour answered that question in the negative: 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. … 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. Appeal to this Court

7. The original appeal grounds for the current appeal were as follows: a) His Honour erred in holding that, because the Tribunal thought it would have been appropriate to approve a development consisting of 50-70 independent living units, it had considered the zone objectives, and in consequence erred in not holding that the Tribunal had erred in law: by 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) [His Honour erred] by 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) His Honour erred in holding that, because the Tribunal thought it would have been appropriate to approve a development consisting of 50-70 independent living units and because such a development would be of considerably higher density than the surrounding houses, the Tribunal did not take the view that it could approve only a development that replicated the immediate surrounding area, and in consequence erred in not holding that the Tribunal had erred in law: (i) by 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; (ii) by misinterpreting zone objective (b) of the RZ1 zone as requiring a proposal to demonstrate a level of compatibility with the adjacent residential development. d) His Honour erred in holding that a declaration that Criterion 87 of the Multi Unit Housing Code was invalid would not inevitably lead to the appeal being upheld. e) His Honour erred in holding that Criterion 87 of the Multi Unit Housing Code conveys its intended meaning adequately and accordingly was not invalid, and in consequence erred in not holding that the Tribunal erred in law by applying criterion 87 of the Multi Unit Housing Code when that criterion was invalid as being uncertain or unreasonable. f) In the alternative to Ground [(e)], His Honour erred in holding that the scale of the development as unsympathetic to the existing character of the neighbourhood was a proper factor for the Tribunal to take into account, and in consequence not holding that the Tribunal erred in law by misinterpreting criterion 87 of the Multi Unit Housing Code 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. g) His Honour erred in law in holding that the question of the validity of Criterion 87 of the Multi Unit Housing Code should not be permitted to be raised for the first time on appeal not having been raised below, as the Tribunal would have been bound to assume the validity of the provision in any event.

8. Matters raised in part of appeal ground (c), and in grounds (d), (e), (f) and (g), are the subject of agreement between the parties. These are mentioned below at [72] to [76].

9. The parties agree that the only matters remaining in issue between them and requiring determination by the Court are: (a) the correct approach to s 120 of the Planning and Development Act 2007 (ACT) (the Planning Act), having regard to s 50 of that Act; and (b) the difference in the parties’ interpretations of RZ1 zone objective (a).

10. Argument on those remaining issues has largely been confined to the question of the proper interpretation of s 120 and objective (a) rather than the question of how the Tribunal reached its decision. The parties have agreed on the implications for the appeal of this court’s conclusions on the two outstanding questions of law.

11. If this court accepts the appellant’s submissions about the meaning of s 120 and objective (a), then the Tribunal made an error of law in the manner in which it assessed the appellant’s proposal, and the matter can be resolved by this court ordering the approval of the development subject to certain conditions sought by ACTPLA.

12. Alternatively, if we do not accept the appellant’s submissions, and find that there is a substantive role for the zone objectives in the assessment of a development application in the merit track, then the matter will need to be remitted to the Tribunal to reconsider the development application in the light of our explanation about the operation of s 120 and our interpretation of objective (a).

The legislative framework

13. Redevelopment of the block as proposed by the appellant required approval by ACTPLA of a development application. Consideration of that relevant application took place in the context of the provisions of the Planning Act. The relevant provisions, as in force at 22 August 2012 when the Tribunal made its decision, are as follows: 50 Effect of territory plan 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. Note 1 The Territory, or a territory authority, is prevented from doing anything inconsistent with the national capital plan. Note 2 The Territory, the Executive, a Minister or a territory authority are also prevented from doing anything inconsistent with some draft variations of the territory plan (see s 65 and s 72). 51 Contents of territory plan (1) The territory plan must include the following: (a) a statement of strategic directions; (b) objectives for each zone; (c) development tables; (d) codes; (e) a map (the territory plan map). Note For more about development tables, see s 54. For more about codes, see s 55. For more about a territory plan map, see s 56. (2) The territory plan may, but need not— (a) identify future urban areas and include the structure plans that apply to those areas; and (b) identify areas of public land reserved in the plan (whether in a map or elsewhere in the plan) for a purpose mentioned in section 315 (Reserved areas—public land); and (c) to give effect to the object of the plan—provide for other matters relevant to the exercise of the powers of the Territory, the Executive or a territory authority under a territory law; and (d) make provision in relation to affordable residential housing; and (e) include anything else relevant to the object of the territory plan. 52 Statement of strategic directions (1) The statement of strategic directions in the territory plan may contain planning principles covering areas of national, regional and Territory interest, including principles for sustainable development. (2) The function of the statement of strategic directions is to— (a) contain broad strategic principles to guide long term planning for the ACT; and (b) guide the preparation and making of variations to the territory plan; and (c) guide environmental impact statements, planning reports and strategic environmental assessments. (3) The statement of strategic directions in the territory plan should promote the planning strategy. 53 Objectives for zones (1) The objectives for a zone set out the policy outcomes intended to be achieved by applying the applicable development table and code to the zone. (2) Each objective for a zone must be consistent with the statement of strategic directions. 54 Development tables (1) A development table for a zone must set out— (a) the minimum assessment track that applies to each development proposal; and Note Assessment tracks are dealt with in ch 7. (b) development that is exempt from requiring development approval; and Note Exempt developments are further dealt with in div 7.2.6. (c) development that is prohibited; and (d) the code that development proposals must comply with. (2) A development table may exempt a development proposal from requiring development approval subject to a condition. Example of possible condition A development proposal is exempt from requiring development approval if the building plans for the proposal comply with a code that applies to single residences in the development table that applies to the proposal. Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). (3) The assessment tracks, from minimum to maximum, are as follows: (a) code track; (b) merit track; (c) impact track. 55 Codes in territory plan (1) A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following: (a) the detailed rules that apply to development proposals the code applies to; (b) the criteria that apply to development proposals the code applies to, other than proposals in the code track. (2) A code must be consistent with each objective for the zone to which the code relates. (3) A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code. Note A concept plan is a precinct code (see s 93 (b)). (4) A code that sets out the requirements for types of development, or states that it is a development code, is a development code. (5) A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code. (6) To remove any doubt, a general code may also contain— (a) policies to be complied with; and (b) rules and criteria applicable to development proposals the code applies to.

14. Part 1.1 of the Territory Plan gives further information about the relevance of zone objectives, as follows: Approvals The Act requires development to be assessed in accordance with the provisions of the Plan and the Act (Section 50, Chapter 7), unless it is defined as exempt development by the Act (Section 133), Regulation (Section 134) or within the development tables of the Plan (Section 54 and 133(a)). Zones and Zone Objectives The Zones are depicted on the Plan maps to:  apply different planning policies to different land areas and different types of land uses, and  provide a structure of land uses that can be applied to parcels of land. There are 11 Zones, four of which have sub-Zones. Each Zone or sub-Zone has objectives that provide broad policies for defined land areas, inform controls in Codes and applied by Development Tables and provide context to the formulation of proposals to vary the Plan. The objectives are also relevant to the assessment of merit track development proposals (s120) and impact track development proposals (s129). The relevant considerations for applications within the Merit assessment track are: - objectives of the Zone, - rules and criteria within the applicable Code(s), - suitability of the land for the development of the kind proposed, - each representation made in response to notification, - any advice from a government entity under Section 148 of the Act, - the plan of management (if public land), and - land management agreements (Section 120 of the Act) - the probable impact of the proposed development including the nature, extent and significance of probable environmental impacts (see section 119 and 120 of Act).

15. The zone objectives for the relevant zone, RZ1 – Suburban Zone, are as follows: RZ1-RZ5 Objectives and Development Tables RZ1 – Suburban Zone Zone Objectives a) 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 b) Ensure development respects and contributes to the neighbourhood and landscape character of residential areas c) Provide opportunities for home-based employment consistent with residential amenity d) Provide for a limited range of small-scale facilities to meet local needs consistent with residential amenity e) Promote energy efficiency and conservation and sustainable water use

16. The present development application was to be determined under what is known as the "merit track" under Division 7.2.3 of the Planning Act. That division includes ss 119 and 120, as follows: 119 Merit track—when development approval must not be given (1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with— (a) the relevant code; and (b) if the proposed development relates to land comprised in a rural lease— any land management agreement for the land; and (c) if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal. Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11). Note 2 Relevant code—see the dictionary. (2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 unless the person deciding the application is satisfied that— (a) the following have been considered: (i) any applicable guidelines; (ii) any realistic alternative to the proposed development, or relevant aspects of it; and (b) the decision is consistent with the objects of the territory plan. (3) To remove any doubt, if a proposed development will affect a registered tree or declared site— (a) the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and (b) subsection (2) does not apply in relation to the conservator’s advice. 120 Merit track—considerations when deciding development approval 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) the suitability of the land where the development is proposed to take place for a development of the kind proposed; (c) each representation received by the authority in relation to the application that has not been withdrawn; (d) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice; Note Advice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150). (e) if the proposed development relates to land that is public land—the plan of management for the land; (f) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts. Operation of s 120 etc

17. The first question that needs to be determined by this Court is how s 120 of the Planning Act operates, specifically what is the significance of the statement that the decision-maker (in this case originally ACTPLA and now the Tribunal) “must consider”, among other things, the objectives for the relevant zone (s 120(a)).

Submissions

18. The appellant says that this requires no more than that the decision-maker is aware of the objectives and uses them in resolving any issues arising in assessing the consistency of the proposed development with the relevant code as required by s 119(1). In particular this would cover interpreting the code, which under s 55(2) must be consistent with each applicable zone objective. This, it is said, gives s 120(a) genuine content, so as to avoid any argument that if s 120(a) does not provide a basis for refusing an application it has no function.

19. ACTPLA says that s 120 does not require a proposed development to be assessed against all the considerations set out in the section, because some of them may be inapplicable (for instance, in this case ss 120(d) and (e) do not arise). However, ACTPLA says, s 120(a) does require all the zone objectives to be considered.

20. Even if the proposed development is consistent in all respects with the code for its zone, as required by s 119(1), ACTPLA says it might nevertheless be inconsistent with a zone objective, and in that circumstance the development application must be refused, because s 50 would preclude its approval. Alternatively, ACTPLA says, the inconsistency would at least permit refusal of the development application despite compliance with the code.

Consideration – does code compliance guarantee approval?

Requirement to consider zone objectives

21. The zone objectives are considerations in deciding a development application. This suggests that they are relevant in the making of the decision, and not only to the extent that they feed into the interpretation of the relevant code.

Comparison – code track and merit track

22. Furthermore, the need to consider the zone objectives is one of the important distinctions between the processes laid down for approvals under the code track and under the merit track. Under s 116, a development application under the code track must be approved if the proposal complies with the relevant rules, which are “the rules that apply to the proposal in each relevant code” (Dictionary to the Planning Act). A development application under the merit track must not be approved unless the proposal is consistent with the relevant code (s 119(1)).

23. That is, code compliance is: (a) both a necessary and a sufficient condition for code track approval; but (b) only a necessary condition for merit track approval.

24. That distinction in itself suggests that merit track approval may require more than simple code compliance. In the absence of any other specified necessary condition for merit track approval, and any explicitly specified sufficient condition, the provisions appear to confer a discretion to approve a proposal once code compliance is established, with the discretionary element provided by the s 120 requirement for the decision-maker to “consider” the zone objectives “in deciding a development application” in the merit track.

Comparison – s 119 and s 120

25. Furthermore, a comparison between s 119 and s 120 makes it clear that s 120 of its own force does not mandate a refusal of a development application if a proposal that complies with the code is found to be inconsistent with a zone objective.

26. Thus, analysis of ss 119 and 120 suggests that: (a) code compliance opens up the possibility of development approval being given in the merit track, but does not guarantee it; (b) approval is discretionary after consideration of all relevant matters identified in s 120; (c) inconsistency with zone objectives would be relevant to the exercise of the discretion, but does not activate any express obligation to refuse approval.

Limits on role of objectives

27. The appellant sought to equate the zone objectives in the Territory Plan with the objects of an Act, with the aim of establishing that zone objectives could not be used in assessing a development proposal separately from assessing the proposal’s compliance with the code.

28. Counsel referred to the views expressed by Spigelman CJ in Victims Compensation Fund v Brown and Ors (2002) 54 NSWLR 668 at [9]: In a passage that has been frequently cited with approval... The Supreme Court of the United States said in Rodríguez v United States 480 US 522 (1987) at 525-526: “... No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice – and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”

29. Counsel noted that Spigelman CJ’s views had been upheld by the High Court in Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260.

30. Counsel argued that since the legislative choices made in implementing zone objectives were reflected in the relevant codes, those zone objectives could not be separately and directly considered in assessing a proposal to which a code applied.

31. We do not disagree with Spigelman CJ’s views or the High Court’s approval of them. However, counsel’s approach is in our view misconceived.

32. Spigelman CJ, and the passage he quoted, were in our view aimed at judicial attempts to “re-write” legislation so that, in the view of the judges concerned, it more effectively implemented the stated objects of the legislation. For instance, in the two cases involving the Victims Compensation Fund, judges had read “and” disjunctively so as to expand the class of victims covered by the compensation scheme.

33. In the current case, however, counsel is arguing that irrespective of the express words of the legislation concerned, an object or objective must not be used for any other purpose than interpreting the provisions for which it is the object or objective.

34. The significance of the zone objectives is explained at [14] above. The fact that codes must be consistent with each relevant zone objective or, to put it another way, that zone objectives may provide useful information for the interpretation of codes, does not exclude the possibility that zone objectives have other roles within the Territory Plan and the Planning Act. In the current context, zone objectives also have the roles identified in ss 120 and 129 and referred to in Part 2.2 of the Territory Plan. The role of zone objectives depends on the specific terms and structure of the relevant legislative scheme, not on any extrapolation from the usual role of a different kind of statement with a similar name (that is, statements set out in Acts that identify the objects of the Act or part of the Act). Nor can a particular and additional role explicitly given to zone objectives by the relevant legislation be excluded by the proposition, adopted by Spigelman CJ and members of the High Court, to the effect that objects or objectives do not justify “rewriting” legislation so as to override the legislative choices made in implementing those objects or objectives.

35. The acceptance by Spigelman CJ and the High Court of the proposition that legislative objects or objectives should not be assumed to have been pursued by a legislator at all costs (a proposition that is, with respect, clearly correct) does not establish that aspirations described as “objectives” within a slightly different governance structure cannot be expressly given additional roles and functions within that particular governance structure.

Conclusion – code compliance does not guarantee approval

36. Accordingly, we reject the appellant’s argument that if a development proposal in the merit or impact track complies with the applicable code (as interpreted by reference to the zone objectives), then it must be approved. Consideration – does inconsistency with zone objectives preclude approval?

37. However, ACTPLA says that a development that would be inconsistent with an applicable zone objective would therefore be inconsistent with the Territory Plan, and that the effect of s 50 of the Planning Act is that the development proposal must not be approved by a territory authority.

38. The question then is whether this is a proper reading of s 50, which is quoted in full at [13] above but in summary relevantly prohibits a territory authority doing any act, or approving the doing of an act, that is inconsistent with the Territory Plan.

39. To answer this question it is necessary to look more carefully at the governance structure created by the Planning Act, at where zone objectives fit into that governance structure, and at what meaning should be given to inconsistency with the Territory Plan.

Planning Act governance structure

40. The governance structure is as follows: (a) the Territory Plan must include zone objectives (s 51(1)(b)); (b) the zone objectives must be consistent with the statement of strategic directions required by s 51 (s 53(2)); (c) the zone objectives set out the policy outcomes intended to be achieved by applying the applicable code to the zone (s 53(1)); (d) a code which sets out detailed rules and criteria for a specific type of development (s 55(1)) must be consistent with each objective for the relevant zone (s 55(2)); (e) zone objectives relevantly “provide broad policies for defined land areas [and] inform controls in Codes and applied by Development Tables” (Territory Plan, Pt 1.1); (f) the zone objectives are relevant “to the assessment of merit track development proposals (s 120) and impact track development proposals (s 129)” (Territory Plan, Pt 1.1, under the heading “zones and zone objectives”); (g) the zone objectives must be considered “in deciding a development application for a development proposal in the merit track” (s 120), and “in deciding a development application for a development in the impact track” (s 129).

41. While there is no doubt that zone objectives form part of the Territory Plan, there is in our minds a real question whether the fact that a development proposal is inconsistent with a zone objective means that: (a) the act of approving the inconsistent development proposal would be an act inconsistent with the Territory Plan; or (b) the implementation of the inconsistent development proposal pursuant to development approval would be an act inconsistent with the Territory Plan such that approving the development proposal would be approving the doing of an act inconsistent with the Territory Plan.

When is a proposed development “inconsistent” with the Territory Plan?

42. Clearly, zone objectives are part of the Territory Plan. However the Territory Plan consists of multiple sets of provisions relating to different kinds of developments and different kinds of zones. It is thus also clear that a set of zone objectives being a part of the Territory Plan is not enough to create an inconsistency with the Territory Plan for a development proposal within a different zone: the structure would be unworkable if a development proposed for a particular zone is “inconsistent with the Territory Plan” because it is inconsistent with zone objectives for a different zone.

43. Rather, inconsistency with the Territory Plan must depend on the status and operation given to particular parts of the Territory Plan’s contents, either by the Territory Plan itself or by the associated legislation.

44. In the form in which the zone objectives are part of the Territory Plan, they have no particular status, consisting as they do of what are grammatically a series of orders or exhortations with no clearly identifiable audience: who or what, for instance, is required to “provide opportunities for home-based employment consistent with residential amenity” (objective (c))? ACTPLA? A would-be developer? Or, perhaps most sensibly, the provisions of the relevant code?.

45. The relevant provisions of the Territory Plan itself (quoted at [14] above) describe zone objectives as being “relevant” to the assessment of certain development proposals; they do not indicate that any inconsistency with zone objectives excludes approval of the development proposal. Those provisions closely reflect the Planning Act provisions referred to in that part of the Territory Plan (ss 120 and 129), which in their terms require the zone objectives to be “considered” in deciding a development application in the merit track or impact track.

46. Apart from ss 120 and 129, the Planning Act, as already noted: (a) (at s 53(2)) sets out requirements for the contents of the zone objectives, being that the zone objectives must be consistent with the statement of strategic directions; and (b) (at s 53(1)) sets out the purpose of the zone objectives, being that they set out “the policy outcomes intended to be achieved by applying the applicable development table and code to the zone”, thereby providing, in effect, both general instructions for the preparation of a code and a test for the validity of the resulting code (by reference to its consistency with the relevant objectives).

47. Having regard to s 53’s location in the set of sections dealing with the various components of the Territory Plan and in particular with the hierarchical relationship between those components, s 53(1) is in our view an indication of the kind of material that is to be set out in zone objectives. That is, s 53 is an explanation to the drafter of zone objectives that the purpose of those objectives is to give guidance in the drafting of the development table and the codes.

48. We are satisfied that s 53(1) does not mean that the zone objectives set out the policy outcomes to be achieved by applying the code to a particular development proposal. That is, a zone objective is not an instruction to a person testing a proposal against a code, although it may incidentally be an instruction to a person interpreting a code for the purpose of applying it to a development proposal for the zone concerned.

Effect of ACTPLA’s submission on inconsistency

49. ACTPLA’s submission that inconsistency with zone objectives requires refusal of development approval, if accepted, would give the zone objectives some kind of self-executing status within the Territory Plan that cannot be inferred from either the Territory Plan or the Planning Act, and would produce a number of odd results.

50. For a start, while objectives (a), (b) and (e) of the RZ1 objectives may provide a fairly wide range within which developments could be found to be consistent with the objective concerned, some, possibly many, development proposals will not in fact provide an opportunity for home-based employment (zone objective (c)) or provide an appropriate kind of small-scale facility to meet local needs (objective (d)), whatever small-scale facility actually means. ACTPLA responds to this complication simply by saying that s 120 does not require a development to be assessed against a particular zone objective if the objective is not “relevant”, but that if the objective is “relevant”, and if the development is inconsistent with it, then the development must not be approved.

51. The difficulty with deciding what is “relevant” when considering the objectives is shown by this case. No party suggested that objective (c) was “relevant” to the current development proposal and should have been considered by the Tribunal. The provision of Wi-Fi in the independent living units, however, might well provide an opportunity (or enhanced opportunity) for a retired professional living in the units to provide fee-paying consultancy services. The absence of Wi-Fi from the development proposal might therefore be inconsistent with the objective. Were compliance with the objectives as well as the code to be mandatory, an extensive (and possibly creative) exploration of wide possibilities such as this would need to be undertaken, by reference to each objective, for every development application that had to travel down the merit or impact tracks.

52. Secondly, there would be a question whether the effect of the zone objectives as put by ACTPLA could be limited to developments subject to the merit and impact tracks, since ACTPLA’s submission must rely on the mere presence of the zone objectives in the Territory Plan rather than the words of ss 120 and 129 (which do not in terms give the zone objectives the status claimed by ACTPLA). On that basis, the presence of the zone objectives in the Territory Plan might under s 50 also restrict the approval of a code track development, even for a single residence otherwise entitled to approval under s 116, if that development was not consistent with all the objectives for the relevant zone.

53. ACTPLA would presumably respond to this proposition also by saying that only the “relevant” zone objectives could result in any inconsistency, but this is not the same as saying that there could never be any inconsistency (given that ACTPLA relies on the proposition that a merit track development could comply with all code requirements but still be inconsistent with a zone objective).

54. Thus, ACTPLA’s submission opens up the possibility that s 50 of the Planning Act might require ACTPLA to refuse to approve a code-compliant development in the code track that under s 116 must be approved.

55. Finally, ACTPLA’s approach to s 50 would require ss 120 and 129 to be read as conferring a discretion limited not by the explicit requirement to consider the zone objectives but by an implicit obligation to refuse approval to any development inconsistent with any “relevant” objective.

56. This of course is the consequence contended for by ACTPLA, but it can only be achieved by a circular argument, as follows: ss 120 and 129, despite their discretionary terms, preclude approval of development proposals inconsistent with the relevant zone objectives because s 50 says that such development proposals (in effect) must be rejected, but s 50 only says that such proposals must be rejected if the Territory Plan, despite its terms, is itself read as requiring the rejection of proposals that are inconsistent with zone objectives. Put another way, ACTPLA says that a proposal that is inconsistent with a zone objective is therefore inconsistent with the Territory Plan and must be rejected, even though neither the Territory Plan nor the Planning Act, in terms or even by necessary implication, requires that individual development proposals must be consistent with zone objectives.

Conclusion – a circular argument

57. This argument, in which the interpretation contended for by ACTPLA requires two sets of provisions both to be read otherwise than according to their terms with a view to each of them, read in the desired way, being relied on to support the desired reading of the other set of provisions, is simply a bootstraps argument, and cannot be accepted.

Consideration – does inconsistency with zone objectives permit rejection of proposal?

58. We have rejected the appellant’s submission that a proposal in the merit track must be approved if it is code-compliant (at [21] to [36] above), and ACTPLA’s submission that a proposal in the merit track must not be approved if it is inconsistent with a “relevant” zone objective (at [37] to [57] above).

59. This in our view leaves s 120 open to being interpreted, according to its terms, as giving a discretion to approve or reject a proposal that is code-compliant (and therefore not required to be rejected under s 119), such discretion being exercisable only after consideration of the matters set out in paragraphs 120(a) to (f) (to the extent that they are relevant to a particular proposal). That is the alternative submission put by ACTPLA, and is in our view the only meaningful way in which to interpret s 120.

Conclusions

60. In Argos Pty Ltd v Corbell (2012) 7 ACTLR 15 at 32; [67] (Argos), Burns J in obiter dicta said: As I noted above, this ground is really a complaint about the Minister’s findings on questions of fact, and is only reviewable on the basis of unreasonableness. In any event, there is no merit in the plaintiffs’ complaint. As the second and third defendants point out in their written submissions, s 119 (1) (a) of the Planning Act requires consistency with the relevant codes, not with the zone objectives. Section 53 of the Planning Act provides that the objectives for a zone set out the “policy outcomes to be achieved” by applying the applicable development table and code to the zone. The objectives are not intended to operate as criteria against which proposals, or constituent parts of a proposal, are to be checked. Rather they are intended to provide guidance in interpreting the rules and criteria found in the codes.

61. Our conclusions are partly consistent with Burns J’s views in Argos.

62. We agree with his Honour that the zone objectives are relevant in interpreting a code (and thereby assessing compliance with it), and that inconsistency with a zone objective does not mandate rejection of a development proposal.

63. However, we also consider that consistency with the zone objectives is properly considered in the exercise of the s 120 discretion to approve a development in the merit track, and that inconsistency with zone objectives may also provide a basis for a discretionary rejection of a code-compliant development. To that extent our views may differ from those expressed by his Honour in Argos.

Objective (a)

Did the Tribunal misconstrue objective (a)?

64. There is then the question whether the Tribunal misconstrued RZ1 zone objective (a), which is as follows: (a) 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.

65. The parties agree that: the outcome that Objective (a) is designed to achieve is to “create a wide range of affordable and sustainable housing choices”. Objective (a) does not require that a development be “low density”. “Low density” is the description that the objective gives to “residential environment” in the zone.

66. The appellant says that it is enough for the words “within a low density residential environment” to be “descriptive of the area, and not proposing a particular outcome if the codes are applied.”

67. ACTPLA says, however, that the words “low density”: must be given some function otherwise objective (a) could have stopped after the words, “housing choices”.

68. ACTPLA further submits, while conceding that objective (a) does not specifically require the development to be low density: 32. Instead, the objective requires that if the development were constructed, the “residential environment” within which it will be located is still apt to be described as a “low density residential environment”. The development is not to cause the nature of the residential environment to change. That is the critical issue. This broader outcome is required not only as a matter of the language of the objective but also because this construction of it is entirely consistent with the multifunction, high order context in which objectives operate. 33. This construction will mean that the objective will only be offended in an exceptional case. Given the high level at which objectives operate and the underlying rules dealing with the overwhelming number of cases, this is only to be expected. 34. Rare though it may be, it is theoretically possible that if a development occurred or developments of a kind continue to occur, it or they would no longer be “within a low-density environment” because it or they would change the character of the zone. (Kingston and Braddon are examples.) ACAT made no finding that this is what the development would do because it did not look at objective (a) this way. 35. The Tribunal made no findings about how the development affected the “environment” (using that term in its geographic sense rather than its ecological sense). It did not properly apply the terms “within” and “environment” when applying the objective. Where it used the term “residential environment” it did so focusing on the density of the development rather than the consequences of the development “within” the “residential environment”. Conclusions

69. We agree with the views of the parties that objective (a) does not require the development concerned to be “low density”, and that “low density” describes the environment of the zone concerned.

70. However, we consider that objective (a) should be read as describing, as the outcome of a development, “affordable and sustainable housing choices within a low-density residential environment”. A development that is consistent with the objective is one that “creates” that composite concept (particular housing choices within a particular environment). To that extent, we agree with ACTPLA’s submission that objective (a) does not contemplate a development that would change the character of the residential environment so that it was no longer a “low-density residential environment”.

71. However, our conclusions about s 120 of the Planning Act mean that in the exercise of the s 120 discretion, such a development could, but need not, be refused approval. That is, objective (a) would not favour the approval of the development, but would not necessarily preclude it.

Resolution of other issues

72. For completeness, we set out the appeal issues on which the parties have reached agreement. In doing so, we should not be taken to have endorsed any of those agreements.

Objective (b)

73. Objective (b) is as follows: (b) Ensure development respects and contributes to the neighbourhood and landscape character of residential areas.

74. The appellant and ACTPLA agree: (a) that the Tribunal’s first step in considering this objective should have been to determine the neighbourhood and landscape character of the residential area concerned [appellant’s further submissions [5]]; (b) that the Tribunal failed to take this first step and thus committed an error of law [5]; and (c) that the existing Morling Lodge and the adjoining St Bede’s School form part of the existing neighbourhood [5].

Criterion 87

75. Criterion 87, which has since been repealed, was found in the Multi Unit Housing Development Code, which was applicable to the proposed development. Criterion 87 was: C87 Where a Neighbourhood Plan exists, development demonstrates a response to the key strategies of the relevant Neighbourhood Plan.

76. The appellant and ACTPLA agree that, if Criterion 87 was “meaningful and valid”, then: (a) the Tribunal was not entitled to require any particular response to that criterion but only that there was a response; (b) there were in fact multiple responses provided in the development application; and (c) therefore the only finding available to the Tribunal in relation to Criterion 87 was that the proposed development met Criterion 87.

Costs

77. In the particular circumstances of this case, and noting that, although the appeal is to be allowed, the conclusions we have reached accord with one of the positions argued by the first respondent, and that other important issues were resolved between the parties without involving the Court, we would be inclined to order that each of the active parties (that is, the appellant and the first respondent) pays its own costs, and we would make no costs order in relation to the second respondent. However, we would refrain from implementing that approach for a limited period to give all parties an opportunity to make submissions about costs.

Orders

78. We would make the following orders: (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 s 120 of the Planning Act and at [69] to [71] above about RZ1 zone objective (a); (d) costs are reserved.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Refshauge and Justice Penfold. Associate: Date:

Burns J :

79. I agree with the orders proposed by Refshauge and Penfold JJ and with their Honours’ reasons. I simply add that I do not see any conflict between their Honours’ reasons and what I said in Argos Pty Ltd v Corbell.

I certify that the preceding one [1] paragraph numbered [79] is a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: