Catchwords: ADMINISTRATIVE REVIEW - LAND AND PLANNING - revised plans submitted during the proceedings - multi-unit development in RZ2 Suburban Core Zone - whether variation to the plans warrants being regarded as a fresh application - the scaling down of the development - the Tribunal "stands in the shoes" of the decision-maker - should the amended application be referred to the entities to which the original proposal was referred - should the amended application be renotified

List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss.9 and 68

Planning and Development Act 2007, ss.144, 146, 161, 162, 165

List of cases: AMC Projects Pty Ltd and ACT Planning and Land Authority & Ors [2006] ACTAAT 13

BDH Projects v ACT Planning and Land Authority [2010] ACAT 37

Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590

Cvetanoski & Ors and Commissioner for Land and Planning

[1999] ACTAAT 42

Finlayson v ACTPLA [2009] ACAT 35

McKenzie v ACT Planning and Land Authority [2004] ACTSC 80

[2009] ACAT 39

Re Abrahams and Comcare [2008] AATA 572; (2008) 48 AAR 492

[2008] HCA 31; (2008) 235 CLR 286

Telstra Corporation Ltd v Aboushadi [2004] FCA 811

Tribunal: Professor P Spender, Presidential Member

TRIUNAL: Professor P Spender, Presidential Member

The Tribunal is satisfied that it has jurisdiction to consider the amended development application evidenced by the drawings filed by the developer party joined on 14 October 2010 and marked Exhibit PJ1 and PJ2 ('the amended development application') and now orders as follows:

Subject to paragraphs 2 to 4 below, and upon being satisfied that no one will be adversely affected by the approval of the amended development application and that the environmental impact caused by the approval of the amended development application will not increase the environmental impact of the relevant development, the Tribunal waives the requirement under section 146(2) of the Planning and Development Act 2007 ('the Act') to publicly notify the amended development application under division 7.3.4 of the Act.

The developer party joined is required by 22 October 2010 to submit further detailed drawings of the amended development application to the respondent, the applicants, the second party joined and all adjoining lessees who were notified of the original proposal.

The respondent is required by 3 November 2010 to assess the proposed development against the provisions of the Territory Plan and provide a copy of its assessment to the applicants, the second party joined, all other adjoining lessees who were notified of the original proposal, and the developer party joined.

Any person wishing to be joined as a party to these proceedings as a result of this further consultation is to apply to the Tribunal by 22 November 2010.

The matter is to be listed for further directions at 3pm Wednesday 24 November 2010.

Upon being satisfied that it is in the interests of justice to do so, the time for deciding the applications is extended pursuant to section 22P(3) of the ACT Civil and Administrative Tribunal Act 2008.

The applicants in this matter i.e. Ms Jackie Walkington, Mr Peter Forster,

Ms Christine Gingell, Ms Julianne Lilley and Mr John Kirkegaard ("the Applicants"), have sought review of the decision of the ACT Planning and Land Authority ("the Respondent") dated 3 June 2010 to approve, with conditions, Development Application 200914418, ("DA") pertaining to Blocks 6 and 7 Section 1 Weetangera ("the Subject Land") for the amalgamation of two adjacent single blocks on Belconnen Way, the issuing of a new lease for the amalgamated block, and the erection on it of a multi-dwelling development comprising five attached two-storey units fronting the Belconnen Way and a separate sixth two storey unit across the rear of the amalgamated block.

On 9 June 2010 the Tribunal gave its decision in BDH Projects v ACTPLA. [1] In that decision, the tribunal found that the intention of objective (b) of the RZ2 zone is to ensure that development in that zone reflects existing low density single residential dwellings. The Tribunal found that whilst a new development in the RZ2 zone is not required to mimic or replicate the existing single dwelling development in the RZ1 and RZ2 zones, it is required to be sympathetic in scale, form and site development.[2]

The applications for review were filed on 2 July 2010. The Applicants argued, inter alia, that the construction of six units on the Subject Land is not in keeping with the housing density of the suburb or recent developments within the suburb.

Orders were made on 21 July 2010 and 28 July 2010 joining Weetangera Holdings Pty Ltd ("the Developer Party Joined") and Mr Mark Sutton ("the Second Party Joined") respectively as parties.

By letter dated 9 September 2010, the Respondent advised the Tribunal that it no longer supported the proposed development in the light of a decision by the Tribunal in BDH Projects v ACT Planning and Land Authority & Ors.[3]

Following that advice, during a directions hearing on 6 October 2010, the applicant for development approval (the Developer Party Joined) tabled a sketch of an alternative development comprising four separate units on the amalgamated block and sought to have this considered as an amendment of the DA which would overcome the concerns of the Respondent and meet the objections made by the Applicants to the original proposal.

The Tribunal was asked to determine whether it had jurisdiction to consider the revised plans of a multi-unit development that were presented for the first time by the Developer Party Joined during earlier proceedings in this matter. The issue before the Tribunal at the interlocutory hearing held on 14 October 2010 was whether the Tribunal has jurisdiction to consider such a variation to the proposed development. The Tribunal would have jurisdiction if, inter alia, the alternative development could properly be regarded as an amendment to the original proposal.

By the time of the hearing of the jurisdictional issue on 14 October 2010, the Developer Party Joined had produced a book of sketch plans of the new proposal, as well as drawings comparing it with the original proposal and outlining the way in which it met the objections of the Applicants.[4] Evidence about the revised proposal was given by Mr Robert Purdon, a Director of Purdon Associates, who was cross examined by the other parties and questioned by the Tribunal. The Developer Party Joined was represented by

Mr P Walker of Counsel, and the Respondent was represented by Mr G McCarthy of Counsel. The Applicants were self-represented.

The Tribunal carefully considered the material on which the decision under review was made, the sketch plans and other material relating to the revised proposal,[5] the submissions of both Counsel and of Ms N Gingell, one of the Applicants, as well as the collective views of the other Applicants (as advised orally) on the revised proposal. Its reasons for making the orders on 15 October 2010 are as follows.

1. The Tribunal derives its power to review a reviewable decision upon application from section 9 of the ACT Civil and Administrative Tribunal Act 2008 ("the ACAT Act") while section 68 of the ACAT Act provides that the Tribunal may exercise any function given by an Act to the entity for making the decision. Thus the Tribunal is clothed with all the powers of the Respondent in reviewing the decision to the extent that those powers are related to the making of the decision under review.[6]

2. The relevant Act is the Planning and Development Act 2007 ("the Planning Act") and the decision, which related to a multi-unit housing development in the RZ2 Suburban Core Zone, was made under section 162 of the Planning Act and is a reviewable decision by virtue of section 407 and Schedule 1 Column 2 Item 3 of that Act, because the development application fell under the Merit Track assessment provisions (RZ2 Development Table) and was publicly notified under section 153.

3. The relevant sections of the Planning Act for present purposes are sections 144, 146, 162 and 165. Section 162(1)(b) empowers the decision maker to approve a DA with conditions, while section 165(3) sets out examples of the conditions to which an approval may be subject. In particular, they include
   • (o) that plans, drawings, specifications or other documents be prepared by the applicant [i.e the applicant for development approval] and lodged with the planning and land authority for approval before the development or a stated part of it starts; and

• (p) requiring changes to be made to any plan, drawing, specification or other document forming part of the application for approval.

4. Section 144 of the Planning Act is concerned with amending DAs and provides that the planning and land authority may, if asked by the applicant, amend a development application, but its powers to do so are limited by subsection 144(2) which provides that:

(2) However, the planning and land authority must not amend the development application unless satisfied that -

(a) the development applied for after the amendment will be substantially the same as the development applied for originally; and

(b) the assessment track for the application will not change if the application is amended.

1. In the event that a decision has been made by the authority to amend an application that has previously been publicly notified under Division 7.3.4, section 146(2) provides for further public notification of the amended application under Division 7.3.4. However, section 146(3) empowers the authority to waive the requirement for public notification of the amended application under certain circumstances. These circumstances will be discussed below.

2. Mr Walker, on behalf of the Developer Party Joined, submitted that the Tribunal has jurisdiction to deal with the revised plans by approving the application with conditions under sections 162(1)(b) and 165(3)(o)-(p) of the Planning Act and that the conditions could include the submission of new plans in accordance with the revised proposal tabled at the hearing. He did not consider that it was necessary to invoke the provisions of section 144, but if that provision was regarded as applicable, then in his submission the revised plans were substantially the same as those originally submitted.

3. Mr Walker referred to McKenzie v ACT Planning and Land Authority[7] where it was held by Crispin J that:

1. it was clearly open to the Tribunal [the former ACT Administrative Appeals Tribunal - ("the AAT")] to approve a development application subject to conditions which required some amendment to the plans for the proposed structure and the Tribunal should take into account any proposal put forward to meet concerns expressed by objectors, or indeed by the Tribunal itself;

1. the amendments could have been adopted as valid conditions of approval of the initial development application pursuant to section 245 of the Land (Planning and Environment) Act 1991 (ACT).

Mr Walker also referred to the decisions of the AAT in Cvetanoski & Ors and Commissioner for Land and Planning[8] and Pashalidis and ACT Planning and Land Authority [9] ("Pashalidis ") and of this Tribunal in Davidson v ACT Planning and Land Authority & Ors, [10] each of which addressed the question of whether or not a variation to a proposed development was sufficiently different from the original as to warrant being regarded as a fresh application. In each case, the Tribunal concluded that the two sets of plans were sufficiently similar as to not justify the making of a fresh application involving public notification.

Mr Walker observed that the former Tribunal had frequently approved variations to development proposals based on new plans submitted prior to or during hearings to overcome the objections of applicants, for example in AMC Projects Pty Ltd and ACT Planning and Land Authority & Ors[11] in which a proposal for a multi-dwelling development of 11 units was reduced to 8 units, by making the submission of revised plans a condition of approval. The former Tribunal had also often imposed conditions on a development arising from its own consideration of a proposal, including significant changes such as requiring a reduction in the number of units allowed to be built.

As to the decision under review, Mr Walker submitted that while the new plans were different from the original plans, they were not different in substance - in each case there was a proposal for multi-unit development on an amalgamated block in an RZ2 Zone. The new proposal responded to the objections of the Applicants by reducing the scale of the development from six units to four, removing the need for demolition of the existing houses, doing away with the potential for overlooking and overshadowing of neighbouring properties and removing the requirement for a 2.4m high fence.

Mr McCarthy, on behalf of the Respondent, took a similar view. He submitted that it was not necessary for the Tribunal to concern itself with section 144, as it was hearing the matter de novo and could utilise the powers available to it under sections 162 and 165 to attach conditions to an approval requiring that revised plans be submitted.

The Applicants generally acknowledged that the revised plans had resulted in significant changes to the development application but in the "spirit of co-operation" consented to "it going through the ACAT process".

However, the Applicant in matter number AT 10/38, Ms Gingell, had a slightly different view. Ms Gingell acknowledged that the new plans were "a major leap forward in addressing the concerns of the Applicants and abiding by the RZ2 planning requirements" but considered that the case law indicated that the changes made were of such an extent as to make it a new application. She submitted that the changes were manifestly a "substantial departure" from the plans approved by the Respondent and fell beyond the allowable scope of variation. In her submission, the Tribunal should set aside the Respondent's decision and that the revised plans should be lodged as a fresh application.

1. The Tribunal is empowered by section 68 of the ACAT Act to exercise any function given by the Planning Act to the Respondent for making the decision in relation to the DA. Moreover, as stated above, when exercising its powers under section 68, the Tribunal "stands in the shoes" of the decision maker.[12] Therefore it is unremarkable that the Tribunal may exercise the power under section 165 of the Planning Act to approve the DA subject to conditions. The power to impose conditions is wide ranging and, as argued by the Developer Party Joined and the Respondent, includes the power to require changes to be made to any plan, drawing, specification or other document forming part of the application for approval under section 165(3)(p) of the Planning Act. Hope J in Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd [13] ("Cambridge") indicated that, generally speaking, these conditions may deal with many matters but undoubtedly they include the site, size, shape, design and other characteristics of buildings the erection of which approval is sought.[14]

2. However, there is a line to be drawn between conditions which amend an existing development proposal and conditions which are so great as to destroy the substance of the original application.[15] The test that has been applied by the courts is whether the condition which is imposed by the decision-maker amounts to a complete rejection of the DA.[16]

3. Mr McCarthy, on behalf of the Respondent, urged the Tribunal to take an expansive interpretation of its jurisdiction, relying upon the cases of Telstra Corporation v Aboushadi[17] and Abrahams v Comcare.[18] In those cases, the Federal Court emphasised that it may be an error of law for a tribunal to adopt an overly technical approach and consequently find that it lacks jurisdiction, where an application may be amended. Justice Crispin made the same point in McKenzie v ACTPLA [19] ("Mackenzie"), stating that:

A failure to consider a point which was worthy of serious consideration and had been seriously advanced may constitute an error of law: Dennis Wilcox Pty Ltd v Commissioner of Taxation (Cth) [1988] FCA 123; (1988) 19 ATR 1122. In my opinion the implicit contention that it was open to the tribunal to approve the appellant's plans subject to amendment involved such a point.[20]

His Honour considered that it is clearly open to a tribunal to approve a development application subject to conditions which require amendment to the plans for the proposed structure and he could see "no reason to doubt that the Tribunal could take into account any proposal put forward to meet concerns expressed by objectors or, indeed, by the Tribunal itself."[21]

However, his Honour stated further that a tribunal would "clearly not be entitled to consider a completely different development application and the distinction between these two situations may depend upon questions of degree."[22]

In McKenzie, Crispin J accepted a submission that amendments that could have been adopted as valid conditions of approval of the initial development application fell within the Tribunal's jurisdiction, particularly where those amendments were motivated by concerns expressed during the hearing.[23] This approach was urged upon the Tribunal by Mr Walker on behalf the Developer Party Joined. Mr Walker emphasised that the proposed development was of a smaller scale than the original development and constituted four rather than six units. This development may have been the subject of conditions imposed by the Respondent following the original application. Similarly, the AAT decided in Pashalidis[24] that while the new plans showed that there were "not insignificant differences in architectural design of the proposals ... the essential ingredients [were] sufficiently similar as to not justify a conclusion that the new plans involve the making of a fresh application".[25]

Relying upon the authority of Cambridge, McKenzie and Pashalidis, the present Tribunal similarly concludes that the new plans in the present case do not involve the making of a fresh application. The Tribunal was assisted by the submissions made by Ms Gingell to the contrary but, whilst acknowledging that the issue is borderline, emphasises that the matter is one of degree. The proposal remains one for multi-unit development on amalgamated block within the RZ2 zone. By way of comparison, the Tribunal notes the comments of Hutley J in Cambridge (in dissent) where his Honour considered that a condition which resulted in a single pencil tower 20 stories high was substantially different to a development of four blocks of home units.[26] Although the changes to the revised plans in the present case were of significance, the Tribunal considers that, as regards multi-unit development in the RZ2 zone, the revised plans are substantially the same as the original application.

In coming to this conclusion, the Tribunal considers that the scaling down of the development so as to reduce impact is a relevant consideration. Moreover, the changes proposed had been made to meet the objections of the Applicants and the Applicants have indicated that, subject to being informed about the details of the revised proposal, they would probably have no objections to it (save for the reservations expressed by Ms Gingell about the amendment, which are set out above). In the Tribunal's view, the amended application would overall be beneficial to the Applicants. Nevertheless the Tribunal has imposed conditions in the orders regarding notice to persons who are likely to be affected, which is discussed below.

The Tribunal takes the view that, in deciding whether it has jurisdiction in relation to the revised plans, it must take into account section 144 of the Planning Act. The Tribunal considers that the statutory formula set forth in sections 144 to 146 of the Planning Act provides a framework within which the Respondent (ergo the Tribunal) must consider whether an amendment to a DA is of such significance that public notification must be contemplated. Hope J in the Cambridge case considered the policy of a similar provision in the New South Wales planning legislation to be as follows:

On the one hand, a construction which would require every material variation of the plans of a residential flat development to be freshly dealt with under s.342ZA could give rise to immense administration problems and endless delays; on the other hand, a construction which would allow councils to approve significant variations of plans without any notice to land owners likely to be affected could frustrate the apparent purpose of this section.[27]

1. The Tribunal considers that the Developer Party Joined, by seeking to make changes to the DA which are not insignificant, is in essence asking the Tribunal to amend the development application. Such a request invokes the responsibility under section 144(2) of the Planning Act to be satisfied that the development applied for after the amendment will be substantially the same as the development applied for originally and that the assessment track applying to the application will not change if the application is amended.

2. As stated above, the Tribunal has concluded that the development applied for after the amendment will be substantially the same as the development applied for originally, therefore the first limb of section 144(2) is satisfied. There is no doubt that the assessment track will not change, as all multi-unit developments in the RZ2 Suburban Core Zone are required to be assessed in the Merit Track against the Multi-Unit Housing Development Code. This satisfies the second limb of section 144(2).

3. However, deciding to accept the amendment in accordance with section 144(1) requires the Tribunal to turn its mind to the provisions of sections 145 and 146 of the Planning Act. In relation to section 145, while the original application was referred to various entities, the Tribunal was satisfied that the proposed amendment of the application does not affect any part of the application in relation to which any entity had made a comment and hence the Tribunal concluded in accordance with section 145(4) that it need not refer the amended application to any of the entities to which the original proposal was referred.

4. Section 146 of the Planning Act must also be considered. This section applies if the planning and land authority amends a development application and the making of the application has been publicly notified.[28] Pursuant to section 146(2) the relevant authority must publicly notify the amended application under Division 7.3.4. Such a public notification would require notification to the wider community by newspaper notice, the erection of a sign on the Subject Land, and written notice to the adjoining leaseholders.[29] However, this obligation may be waived under section 146(3) if the planning and land authority is satisfied that-

(a) no one other than the applicant will be adversely affected by the amendment; and

(b) the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development.

1. In considering the operation of section 146(3), the Tribunal notes the comments made by Hope J in Cambridge regarding the need to give notice to adjoining leaseholders and the approach adopted by the Tribunal in Finlayson v ACTPLA[30] ("Finlayson"). In that case there had been a number of changes to the development proposal since it had been originally publicly notified. The Tribunal therefore felt that it was appropriate to consider whether any persons had been materially disadvantaged by not being given an opportunity to comment on the revised plans.[31]

2. Although Finlayson was decided under the Land (Environment and Planning) Act 1991, a predecessor to the current Planning Act, the Tribunal considers that the approach adopted by the tribunal in that case is of value in interpreting the power to waive public notification under section 146(3) of the Planning Act. The tribunal in Finlayson considered whether there were likely to be further objectors to the amended proposal and concluded that there was no reason to suppose that anyone who did not object to the original proposal would object to the amended proposal. [32] Because the amended proposal in the present case is a scaled-down version of the original proposal it seems that, likewise, there is no reason to suppose that potential objectors to the amended proposal would not have made a representation regarding the original proposal. In the Tribunal's opinion, therefore, no-one is likely to be adversely affected by the amendment.

3. Although many of the adjoining leaseholders had lodged objections to the original proposal, had lodged applications for review before the Tribunal which are the subject of this present hearing and had indicated their consent to the amendments (as discussed above), the Tribunal is mindful of the fact that not all the original objectors were applicants in this matter and notes its further responsibility, as expressed by Higgins J in In Re Calardu Pty Ltd (No. 2)[33] to:

be satisfied that to allow that amendment ... would not prejudice the rights of ... any potential objector. It is a situation which necessarily requires careful consideration to avoid that result because, ex hypothesi, potential objectors are unrepresented. A more robust approach to allowing amendments is appropriate when all possible interested parties are represented and can state grounds for opposing or supporting the proposed amendment.[34]

1. Accordingly, in order to satisfy the Tribunal's obligations to accord procedural fairness under section 7 of the ACAT Act and to be completely satisfied that no one will be adversely affected by the amendment of the proposal for the purposes of section 146(3)(a) of the Planning Act, the Tribunal requires the Developer Party Joined to submit further detailed drawings of the amended development application to the Respondent, the Applicants, the Second Party Joined (whose leasehold adjoins the Subject Land on Belconnen Way) and all adjoining lessees who were notified of the original proposal. The orders also require the Respondent to assess the amended proposal and provide a copy of its assessment to those same lessees, so that all concerned will have an opportunity to consider the amended proposal and, if they so desire, to seek to be joined in the matter. The orders allow any additional person wishing to be joined as a party to the proceedings as a result of this further consultation to apply to the tribunal by 22 November 2010.

2. In relation to the requirements under section 146(3)(b) regarding the environmental impact of the amended proposal, the Tribunal has considered the evidence of Mr Purdon and perused the document admitted into evidence entitled "Comparison of Approved and Revised Development Plan"[35] and finds that the amended development proposal will reduce the environmental impact by comparison with the original proposal. Therefore section 146(3)(b) of the Planning Act is satisfied because the approval of the amendment will not increase the environmental impact of the development.

3. For the foregoing reasons, the Tribunal is satisfied that it has jurisdiction to consider the amended development application.

APPLICANTS: JACQUI WALKINGTON AND PETER FORSTER,

CHRISTINE GINGELL, JULIANNE LILLEY & JOHN KIRKEGAARD

TRIBUNAL MEMBER/S: Professor P Spender, Presidential Member

DATE/S OF HEARING: 14 October 2010 PLACE: CANBERRA

DATE/S OF DECISION: 19 November 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] [2010] ACAT 37

[2] BDH Projects v ACTPLA [2010] ACAT 37 at [66]

[3] [2010] ACAT 37

[6] Telstra Corporation Ltd v Aboushadi [2004] FCA 811 at [28] - [35]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

[7] [2004] ACTSC 80

[9] [2004] ACTAAT 21

[10] [2009] ACAT 39,

[11] 2006] ACTAAT 13 at [5]

[12] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

[13] Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590

[14] Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590

[15] Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590

[16] Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590

[17] [2004] FCA 811

[18] [2008] AATA 572; (2008) 48 AAR 492

[19] (2004) ACTSC 80

[20] McKenzie v ACT Planning and Land Authority [2004] ACTSC 80 at page 21

[21] McKenzie v ACT Planning and Land Authority [2004] ACTSC 80 at page 21

[22] McKenzie v ACT Planning and Land Authority [2004] ACTSC 80 at page 21

[23] McKenzie v ACT Planning and Land Authority [2004] ACTSC 80 at page 21

[24] [2009] ACAT 39

[25] Pashalidis and ACT Planning and Land Authority [2009] ACAT 39 at [29], [32]

[26]Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590

[27] Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590

[28] Section 146 (1) Planning Act

[29] Finlayson v ACTPLA [2009] ACAT 35 at [56]

[30] [2009] ACAT 35

[31] Finlayson v ACTPLA [2009] ACAT 35 at [55]

[32] Finlayson v ACTPLA [2009] ACAT 35 at [61]

[34] Re Calardu Pty Ltd [No 2] (1991) 109 FLR 361 at page 366