Capital Property Projects (ACT) Pty Limited & Ors v Planning & Land Authority and Anor [2007] ACTSC 95

Capital Property Projects (ACT) Pty Limited & Ors v Planning & Land Authority and Anor [2007] ACTSC 95 - ACTSC 2007 case summary — Zoe

[75]

(1) In approving or refusing to approve an application, the relevant authority must consider the following:

(a) the comments of any entity to which the authority referred the application for comment;

(b) each objection or other submission received by the authority in relation to the application that has not been withdrawn;

(c) a preliminary assessment under division 4.2, or a report under section 128, in relation to the environmental impact of the proposed development;

(d) any assessment made, or the report of any inquiry conducted, in relation to the proposed development;

(e) any advice given to the authority by the heritage council under the Heritage Act 2004, section 60 (Advice about effect of development on heritage significance) within 15 working days after the day the council is given notice of the application by the authority;

(f) any advice given to the authority by the conservator under the Tree Protection Act 2005, section 82 (Advice about tree protection on land subject to development) within 30 working days after the day the conservator is given notice of the application by the authority;

(g) if the relevant authority is the Minister - the comments of the planning and land authority.

(2) The relevant authority may make a decision under section 230 that is inconsistent with any heritage council advice under the Heritage Act 2004_, section 60 only if satisfied that - _

_(a) the following have been considered - _

(i) all applicable heritage guidelines;

(ii) all reasonable development options and design solutions;

(iii) any prudent and feasible alternative to the proposed development, or relevant aspects of it; and

(b) as far as practicable, the decision avoids or minimises any adverse impact on the heritage significance of the place; and

(c) on balance, the decision is consistent with the objects of the territory plan.

(3) Also, if the proposed development would be affected by heritage guidelines relating to the heritage significance of an Aboriginal place or object registered, or nominated for provisional registration, under the Heritage Act 2004, the relevant authority must consult each representative Aboriginal organisation and consider any further comments by the heritage council about the development.

(4) The relevant authority must not make a decision under section 230 that is inconsistent with the advice of the conservator under the Tree Protection Act 2005, section 82 in relation to a registered tree or a declared site.

(5) The relevant authority may make a decision under section 230 that is inconsistent with the advice of the conservator under the Tree Protection Act 2005, section 82 in relation to a regulated tree only if the authority is satisfied, having regard to the broader strategic objectives of the territory plan, that all reasonable development options and design solutions have been considered to avoid or minimise the need to damage the tree or undertake prohibited groundwork.

_(6) In making a decision under section 230 that relates to a regulated tree, the relevant authority may, under this section - _

(a) if a tree management plan is already in force for the tree - approve an amendment of, or replacement for, the tree management plan; or

(b) in any other case - approve a tree management plan for the tree.

(7) A decision mentioned in subsection (5) must not be made by a person acting as delegate of the planning and land authority.

(8) In this section:

Aboriginal object_ - see the_ Heritage Act 2004, section 9.

Aboriginal place_ - see the_ Heritage Act 2004, section 9.

representative Aboriginal organisations_ - see the_ Heritage Act 2004, section 14.

[127]

In each case the question is one of construction of the legislation. Here, we think it is significant that not only is the question one of opinion or assessment, upon which reasonable minds might differ, but also that the initiator of the process is not the applicant for consent or the consent authority, but the relevant Minister. Secondly, it is relevant that the cases where a preliminary assessment is required are not defined in the Land Act itself but are left to be "prescribed" in the Plan, an instrument of a kind likely to set standards in terms requiring the formation of opinion and the exercise of discretion. It is particularly significant, in our view, that the legislature has chosen to separate, in principle (no doubt in some circumstances the relevant Minister may also be the consent authority, though that is not the case here), the functions of the relevant Minister and consent authority. Where the duty cast on the consent authority by s 231(1) of the Land Act is to consider "a preliminary assessment ..." the authority is not required, in our view, to do anything more than consider such an assessment if there is one: in other words it is not for the authority to consider whether a preliminary assessment is required, that obligation being cast not on the authority but on the Minister. That being so, in our view the satisfaction of the criteria set by the Plan is not a jurisdictional fact in relation to the decision to be made by the authority. The proper construction of the provisions, we think, is that the relevant Minister must determine (as the Minister's delegate did in this case) whether according to the criteria in the Plan, a preliminary assessment is required. If the relevant Minister concludes that, applying par (a) or one of the other exceptions, a preliminary assessment is not required, that decision, in our view, cannot be attacked collaterally in an application for prerogative relief or under the ADJR Act to which the relevant Minister is not a party.

[135]

This issue does not arise in the present case, which, as I have said, is an appeal on a question of law. If it had been part of the ratio of that decision that s 114 is to be construed as if it were conditioned upon the subjective opinion of the minister rather than a jurisdictional fact, then, in my opinion, the decision would require re-examination in the light of the recent decision of the High Court in Corporation of City of Enfield v Development Assessment Commission_._

The question as to whether breach of s 114 leads to invalidity of a subsequent approval pursuant to s 230 is a different question. That result does not follow from the text of ss 230 or 231.

However, the scheme of the Act is powerful support to that submission. The question of approval will necessarily arise after the time has elapsed to set in train the process of preliminary assessment pursuant to Div 2 of Pt IV if that were called for. The judge below correctly stressed the importance of the preliminary assessment as the process for involving public consultation. The proper assessment of a proposal may raise issues of concern to members of the public, including, but not limited to, those directly affected by a proposal, which may not have been perceived or properly appreciated in the absence of such an assessment. It also ensures that an appreciation of the issues is widely disseminated. It may well result in persons who have legitimate concerns coming forward. This process has little point if it is not directed to a proper evaluation at the actual point of decision-making. It may do so by raising issues or by causing notice of the proposal and the issues to be disseminated. Adapting somewhat the test in Project Blue Sky Inc v Australian Broadcasting Authority at CLR 390, in my opinion it can be concluded from the language of the relevant provisions and the scope and object of the statute that parliament would not have contemplated that a valid decision could be made in the absence of a preliminary assessment where the Act required that assessment to be made. Indeed, in my view, s 231(1) is framed upon the assumption that there will be a preliminary assessment where the Act requires one.

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Judgment (147 paragraphs)

Capital Property Projects (ACT) Pty Limited & Ors v Planning & Land Authority and Anor [2007] ACTSC 95 (7 December 2007)

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Legislation Cited (10)

Cases Cited (10)