Administrative Decisions (Judicial Review) Act 1989 (ACT)

Land (Planning and Environment) Act 1991 (ACT), s 7, s 8, s 113, s 114, s 222, s 229, s 230, s 231, Part 6

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), s 10, s 11, s 25, s 26

Capital Property Projects (ACT) Pty Ltd and Ors v Planning and Land Authority and Anor [2007] ACTSC 54, 22 June 2007, Connolly J

Colonial Bank of Australasia v Willan (1874) LR 5 PC 417

Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5; (2000) 199 CLR 135

Woolworths Ltd v Pallas Newco Pty Ltd and Another [2004] NSWCA 422; (2004) 61 NSWLR 707

Project Blue Sky Inc & Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Ex parte Hulin; Re Gillespie & Another (1965) 65 SR (NSW) 31

Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55

Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207

Canberra Tradesmen's Union Club Inc & Another v Commissioner for Land & Planning & Others [1999] FCA 262; (1999) 86 FCR 266

Canberra Tradesmen's Union Club Inc and Others v Minister for Environment, Land & Planning and Another [2000] FCA 203; (2000) 98 FCR 145

BETWEEN: CAPITAL PROPERTY PROJECTS (ACT) PTY LIMITED

AND: CANBERRA INTERNATIONAL AIRPORT PTY LIMITED

AND: DIRECT FACTORY OUTLETS CANBERRA PTY LIMITED

1. The question that is the subject of the order made by this court on 18 April 2007 in paragraph 2(c) of that order, namely:

In relation to the allegations raised by the plaintiffs in paragraphs 13, 15, 17, 19, 21, 23 and 27 of the originating application, or any one of those allegations, are the parties entitled to adduce evidence in addition to that which was before the first defendant when it made its decision to approve (subject to conditions) the Development Application?

In respect of the allegations raised in paragraphs 13, 15, 19 and 23: No.

In respect of the allegations raised in paragraphs 17, 21 and 27: unnecessary to answer.

**1. Capital Property Projects (ACT) Pty Ltd, Canberra International Airport Pty Ltd and Brand Depot Pty Ltd are plaintiffs seeking a declaration and prerogative relief or alternatively an order of review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) in respect of the decision of the Planning and Land Authority (ACTPLA) (the first defendant) on 21 September 2006 approving, pursuant to s 230 of the Land (Planning and Environment) Act 1991 (ACT) (Land Act), a development application by Direct Factory Outlets Canberra Pty Ltd (DFO) (the second defendant) in relation to a proposed development on land at the corner of Newcastle Street and Canberra Avenue, Fyshwick in the Australian Capital Territory.

2. The originating application in this matter also sought declarations, prerogative relief and orders under the ADJR Act in respect of a grant of a Crown Lease of the land by ACTPLA to DFO on 3 February 2006. On 22 June 2007, Connolly J struck that claim out for reasons of non-compliance with a subpoena by the then third plaintiff, Capital Property Finance Pty Ltd (Capital Property Projects (ACT) Pty Ltd and Ors v Planning and Land Authority and Anor [2007] ACTSC 54, 22 June 2007). Capital Property Finance Pty Ltd is no longer a party to the proceedings.**

**3. On 18 April 2007, I had ordered that three separate questions were to be decided preliminary to the trial in this matter. The consequence of Connolly J's decision meant that the first and third of those questions do not require determination as they related to the claim that he struck out.

4. The remaining question seeks an answer as to whether the allegations raised in certain paragraphs of the originating application entitle the parties to adduce evidence in addition to that which was before ACTPLA when it made its decision to approve the development application. The issue is whether certain of the paragraphs in the originating application raise for determination what are termed, "jurisdictional facts". If the allegations do raise such facts, then the plaintiffs wish to adduce evidence in respect of them on the hearing of their application.

In relation to the allegations raised in paragraphs 13, 15, 17, 19, 21, 23 and 27 of the originating application, or any of those allegations, are the parties entitled to adduce evidence in addition to that which was before the first defendant when it made its decision to approve (subject to conditions) the Development Application?

**6. The paragraphs referred to in the question are under the heading "Grounds of application: prerogative relief" with the exception of paragraph 27 which is under the heading "Grounds of application: statutory order of review".

7. The plaintiffs no longer press an entitlement to adduce evidence in respect of paragraphs 17, 21 and 27 in the originating application. That leaves paragraphs 13, 15, 19 and 23 for consideration. There is a common issue with respect to paragraphs 13, 15 and 23 concerning allegations of consistency with the Territory Plan. Paragraph 19 is in a category separate from those paragraphs in alleging an issue concerning the provisions of the Land Act.**

The allegations referable to paragraph 13 of the originating application

8. Paragraph 13 of the originating application pleads that:

1. The Proposed Development is inconsistent with the objectives stated in part B3 section 1 in the Territory Plan and section 4.2 of the applicable area specific policy in the Territory Plan.

(a) The Proposed Development, by establishing a major retail centre within an area primarily intended for industrial use, displaces industrial use on the Land and discourages industrial use near the Land and thereby is inconsistent with objectives 1(a), (b), (c) and (i) and area specific policies 4.2(a), (b), (e), (f) and (g) contained in part B3 section 1 in the Territory Plan.

(b) The Proposed Development, by establishing a major retail centre outside a town centre, is inconsistent with area specific policy 4.2(c) contained in part B3 section 1 in the Territory Plan.

(c) The Proposed Development, by generating a substantial and detrimental increase in traffic congestion, is inconsistent with objective 1(c) and area specific policy 4.2(a) contained in part B3 section 1 in the Territory Plan.

9. Paragraph 14 then pleads that the first defendant exceeded its jurisdiction. Particulars of the Territory Plan are then given to demonstrate inconsistency with the Plan. Those particulars are:

1. By reason of the matter pleaded in paragraph 13 above, ACTPLA exceeded its jurisdiction by approving the Proposed Development.

(a) Section 8 of the Land Act prohibits ACTPLA from acting in a manner inconsistent with the Territory Plan.

(b) Section 9.1(a) of part A3 of the Territory Plan prohibits ACTPLA from approving a proposal that would be inconsistent with the applicable land use policy, namely the industrial land use policy in part B3 of the Territory Plan (Industrial Land Use Policy).

(c) The Industrial Land Use Policy requires all permissible uses to be subject to any relevant objective and any relevant area specific policy.

10. As the particulars show with their reference to s 8 of the Land Act, unless it can be shown that there is inconsistency with the Territory Plan, the allegation in paragraph 14 that the first defendant exceeded its jurisdiction, will not be made out. The issue though, is whether the plaintiffs can supplement the material that was before the first defendant to show that the decision made was inconsistent with the Territory Plan. That can only be so if the determination of consistency or inconsistency is one that can be made on an objective basis as a precondition to the planning authority approving or not approving the particular development. In that way, it is said that the issue of consistency is with the Territory Plan.

The allegations referable to paragraph 15 of the originating application

11. A similar submission is put in respect of paragraph 15 of the originating application. That paragraph asserts:

1. The Proposed Development is inconsistent with Chapter 4 of the National Capital Plan.

(a) Chapter 4 requires the maintenance of a hierarchy of town centres, with each town centre acting as a focal point for higher order retail functions.

(b) The Proposed Development, by establishing a major retail centre outside a town centre, is inconsistent with this requirement.

(c) Chapter 4 requires the continuation of industrial estates on the edge of urban areas.

(d) The Proposed Development, by establishing a major retail centre within an area primarily intended for industrial use, is inconsistent with this requirement.

12. It is then pleaded in paragraph 16 of the originating application:

1. By reason of the matter pleaded in paragraph 15 above, ACTPLA exceeded its jurisdiction by approving the Proposed Development.

The particulars then given seek to explain the contention made:

(a) Section 8 of the Land Act prohibits ACTPLA from acting in a manner inconsistent with the Territory Plan.

(b) Section 9.1(k) of part A3 of the Territory Plan prohibits ACTPLA from approving a proposal that would be inconsistent with any relevant provision of the National Capital Plan.

(c) Section 11 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) prohibits ACTPLA from doing any act that is inconsistent with the National Capital Plan.

(d) The National Capital Plan requires the maintenance of the existing hierarchy of centres.

13. On the face of it, and based on subparagraph (a), the particulars are saying that inconsistency with the Territory Plan will result from inconsistency with the National Capital Plan because the provisions of the Territory Plan make it so. I understand that the further submission is made based upon subparagraph (c) to the particulars to paragraph 16 of the originating application that the doing of any act of itself inconsistent with the National Capital Plan is a jurisdictional fact and that s 11 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (the PaLM Act) has this effect. I am not sure how far this proposition is pressed. It seems to me that because the provisions of the Territory Plan require consistency with the National Capital Plan, the question of inconsistency as a jurisdictional fact to decisions of a Territory authority will depend upon a construction of the relevant Territory Act, not the Commonwealth Act. That construction of the Territory Act will take place against the background of the scheme set out in the Commonwealth Act but is otherwise not affected by the provisions in the Commonwealth Act.

The allegations referable to paragraph 23 of the originating application

14. The allegations in paragraph 23 of the originating application contain the similar notion of inconsistency with the Territory Plan as are contained in paragraphs 13 and 15 above. Paragraph 23 pleads:

1. The Proposed Development is inconsistent with the land use control in section 3.1 of part B3 of the Territory Plan restricting the maximum gross floor area for shop use in precinct 'b'.

15. By further amended particulars that were handed to the court by the plaintiffs, the plaintiffs seek to add:

(a) The Proposed Development is for a number of bulky goods shops and other retail shops.

(b) The sum of the floor area of the retail shops (excluding any supermarkets, shops selling food and bulky goods retailing) in the Proposed Development is approximately 27,000 m2.

**16. Again, the plaintiffs say that reference to s 8 of the Land Act requires the circumstance of inconsistency with the Territory Plan to be a precondition to the relevant authority acting to approve the development under s 231 of the Land Act.

17. The defendants say that the particulars given, as supporting the inconsistency alleged, are to be found in the material before the decision-maker and do not require additional factual material to support the allegation but, in any event, the allegation is not a jurisdictional fact but one upon which the decision-maker is to form a view in the exercise of jurisdiction.**

**18. The question that the parties call upon me to answer seeks to ascertain if the allegations made and particularised in the identified paragraphs of the originating claim are facts which are an essential requirement to the exercise of the decision-making process. That may be distinguished from facts that may be adjudicated upon in the course of the enquiry (cf Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 422-433).

19. The joint judgment of the High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) in Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5; (2000) 199 CLR 135 at 148 [28] (Enfield) defines jurisdictional fact for these purposes:**

The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.

**20. As appears from the approach taken by the High Court in Enfield, the conclusion to be reached by a court in respect of this aspect depends upon the construction that is placed upon the provisions which set up the decision-making process.

21. In Woolworths Ltd v Pallas Newco Pty Ltd and Another [2004] NSWCA 422; (2004) 61 NSWLR 707 (Pallas Newco), Spigelman CJ, at 710 [6], observed:**

The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.

22. It is important, therefore, to set out the legislative scheme and then to look at those factors that need to be taken into account in determining whether, on the proper construction of the scheme that the Act under consideration propounds, any particular species of fact may be said to go to the jurisdiction that enables the making of the decision in question.

23. Consequent upon the establishment of self government for the Australian Capital Territory, the PaLM Act was enacted. The PaLM Act provided for a National Capital Plan to ensure that Canberra and the Territory were planned and developed in accordance with their national significance. Section 10 of that Act provides for the matters to be covered in the National Capital Plan:

10 Matters to be covered in Plan

(1) The Plan may specify areas of land that have the special characteristics of the National Capital to be Designated Areas.

(2) The Plan:

(a) shall define the planning principles and policies for giving effect to the object of the Plan and, in particular, shall set standards for the maintenance and enhancement of the character of the National Capital and set general standards and aesthetic principles to be adhered to in the development of the National Capital;

(b) shall set out the general policies to be implemented throughout the Territory, being policies of:

(i) land use (including the range and nature of permitted land use); and

(ii) the planning of national and arterial road systems;

(c) may set out the detailed conditions of planning, design and development in Designated Areas and the priorities in carrying out such planning, design and development; and

(d) may set out special requirements for the development of any area (not being a Designated Area), being requirements that are desirable in the interests of the National Capital.

Note: This Part does not apply in relation to Canberra Airport: see section 112A of the Airports Act 1996 .

(2) The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the Plan.

25. The first plaintiff is a Territory authority for the purposes of this subsection. The Act goes on to require the Legislative Assembly of the Australian Capital Territory to provide a Territory Plan. Section 25(1) of the Act provides:

(1) The Assembly shall, as soon as practicable, make laws providing for:

(a) establishing a Territory planning authority; and

(b) conferring functions on the authority, including the functions of:

(i) preparing and administering a plan in respect of land, not inconsistent with the National Capital Plan; and

(ii) keeping the plan under constant review and proposing amendments to it when necessary.

26. The object of the Plan and its content are set out in s 25(2) and (3):

(2) The object of the plan is to ensure, in a manner not inconsistent with the National Capital Plan, the planning and development of the Territory to provide the people of the Territory with an attractive, safe and efficient environment in which to live and work and have their recreation.

(3) The plan:

(a) shall define the planning principles and policies for giving effect to the object of the plan; and

(b) may include the detailed conditions of planning, design and development of land and the priorities in carrying out such planning, design and development.

**27. The Territory Plan is to have no operation in respect of the Designated Areas (see s 25(6)). Further, s 26 provides that the Territory Plan is not to be inconsistent with the National Capital Plan and is to have no effect to the extent of any inconsistency although it is to be taken to be consistent to the extent that it is capable of operating concurrently with the National Capital Plan.

28. By enacting the Land Act, the Legislative Assembly provided generally for planning, environmental assessments and enquiries, heritage and land administration in the Territory. The centrepiece of the planning regime is the Territory Plan. Section 7 of the Land Act provides for the object of the Territory Plan:**

7 Object of Territory Plan

(1) The object of the plan is to ensure, in a way not inconsistent with the national capital plan, that the planning and development of the ACT provides the people of the ACT with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation.

(2) The plan must set out the planning principles and policies for giving effect to its object.

_(3) For giving effect to the object of the plan and the principles and policies mentioned in subsection (2), the plan may - _

(a) set out specific objectives and policies; and

(b) specify purposes for which land may be used; and

(c) identify land for subdivision 2.3.4, specifying in addition the principles and policies for its development; and

(d) for division 5.7 - identify an area of land as public land and reserve it for a purpose specified in section 193; and

(e) provide for other matters relevant to the exercise of the powers of the Territory, the Executive or a territory authority under a territory law, or the administrative review of the exercise of those powers; and

(f) provide for other matters that are necessary or convenient.

29. Section 8 (which may be compared to s 11 of the PaLM Act) sets out the effect of the plan:

8 Effect of plan

The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the plan.

30. The planning aspects of the Act in respect of any development upon land, is dealt with in Part 6 of the Land Act which permits approval and orders in respect of such activity. Section 222 of the Land Act defines the Minister and the first defendant as relevant authorities for the purposes of the Act. Section 230(1) provides that the relevant authority may approve or refuse to approve an application to undertake a development under that Part. Section 229B(2) gives the grounds for the Minister to determine an application for approval. Section 231 provides the matters that the relevant authority (both the first defendant and the Minister) must consider:

1. Matters to be considered by relevant authority

(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.

The plaintiffs' submission as to paragraphs 13, 15 and 23 of the originating claim

**31. The plaintiffs' submission in respect of the allegations in paragraphs 13, 15 and 23 of the originating claim is that s 8 of the Land Act is in mandatory terms and is not expressed in terms of an opinion as to its effect. It is put that s 231 of the Land Act is drafted in terms that do not refer to a relevant authority needing to form an opinion on consistency with the Territory Plan. The fact also that the Territory Plan cannot be varied without extensive consultation both public and parliamentary, it is said, underscores the importance of the Plan.

32. However, such a construction, seems to me to not appreciate the very nature of the Territory Plan and its operation in the context of the planning regime that the Land Act establishes. It is the Territory Plan that provides planning principles and policies and, no matter how detailed, will still require assessment and application by the planning authority.**

**33. The plaintiffs' submission is said to be supported by the High Court's decision in Enfield (supra). In that case it was held that a provision in an enactment which provided that a development of a particular description must not be granted a consent did not depend upon a classification by the authority of whether the development was of that description (cf Enfield at 140 [6], [33], [34]).

34. The provision under consideration in Enfield is set out at 140 [6] of the judgment:**

If under the terms of the existing Development Plan the proposed development was for "special industry", it would be prohibited by that Development Plan and it would be a "non-complying" development for the purposes of the Act. The consequence would be that the Commission was required by s 35(3) not to grant a provisional development plan consent unless the concurrences specified in s 35(3) were given. Section 35(3) states:

"A development that is of a kind described as a non-complying _development under the relevant Development Plan must not be granted a provisional development plan consent unless - _

(a) where the relevant authority is the Development Assessment Commission - the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;

(b) in any other case - the Development Assessment Commission concurs in the granting of the consent."

Enfield's case is that the proposed Collex development attracted par (a) of s 35(3). [Footnotes omitted]

35. At 149 [33] the court sets out its view of the construction to be given to the section under consideration. It is said that:

However, taken as a whole, the text of s 35 does not suggest that the determination whether, upon the criteria specified in s 35, the responsible authority is or is not obliged to consent rests upon its own classification of the relevant circumstances. Rather, it indicates that it is not for the relevant authority itself to determine, as a matter of its opinion, whether the restriction imposed upon it by s 35(3) applies because the development is a "non-complying" development. Section 35(3) does not define the criterion of operation as the opinion of the relevant authority as to the classification of the development.

Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker. But that is not what s 35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent. [My emphasis, footnotes omitted]

**37. Section 8 of the Land Act is a mandatory direction to act in a particular way addressed to each of the entities concerned with the administration of the Act. It is true that the specific matters that s 231 of the Land Act requires the relevant authority to consider do not refer to the Territory Plan but I find it impossible to accept that the assessment of consistency with that Plan is preliminary to, rather than part of, the task of the relevant authority in determining whether to or not to give approval.

38. In the present case, I consider that s 8 and s 231 of the Land Act read together may be understood as requiring an assessment by the relevant authority. That assessment is the approval or refusal to approve the question that the relevant authority must determine is an application whether or not the giving of such approval is inconsistent with the Territory Plan. As well, the Authority is required to consider the matters set out in s 231. It follows that I do not think that it is a proper conclusion in the context of an Act that is directed to planning approvals that are to be made by reference to a planning instrument to say that consistency with that instrument is a precondition to the giving of the approval. It is a fundamental aspect as to whether or not the approval should be given. Further, it is not a stipulation in the direct terms of a prohibition to the exercise of jurisdiction that the court found to be the case in Enfield.

39. I accept that the giving or refusing approval by the relevant authority involves the assessment of consistency with the Territory Plan. It may be a jurisdictional fact if it can be said to be an "essential preliminary to the decision-making process" as opposed to a "fact to be adjudicated upon in the course of the inquiry" (see Spigelman CJ in Pallas Newco (supra) at 718 [46]). Spigelman CJ also observed at 718 [47]:**

The word "preliminary" does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process. A decision-maker may well determine whether or not s/he has jurisdiction at the same time as s/he carries out the substantive decision- making process.

A factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively.

41. In Ex parte Hulin; Re Gillespie & Another (1965) 65 SR (NSW) 31 at 33, Sugerman J drew this distinction:

The questions upon which a court of limited jurisdiction may find it necessary to adjudicate in the course of an inquiry before it, may be classified for present purposes into two broad categories. Some relate to matters which are extrinsic to the subject matter of the inquiry itself but_, by the terms of the conferment of jurisdiction, are_ essential to the competence of the court to undertake the inquiry and to carry it to a valid conclusion. Others, although related to the validity of the court's conclusion, are related to validity in a different sense. As to these validity refers only to the correctness of the court's conclusion, in the very inquiry which it was authorised to undertake_, as an adjudication upon questions of fact and law which were properly before it for determination upon that inquiry. (Emphasis added.)_

**(See also Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 66 [52] - [54].) In the present case, I consider that the question of consistency with the Territory Plan is the very enquiry which the decision-maker was authorised to undertake.

42. In the context of planning legislation, a provision like s 8 of the Land Act is a matter that governs all decision making by those charged with that responsibility under the Act. To make such decisions requires reference to planning principles and policies set out in the Territory Plan. That will necessarily require assessments of fact and degree in the application of those principles and policies for the purposes of making those particular decisions. This then becomes very much a matter which is commented upon by Spigelman CJ in Pallas Newco at 719 [56]:**

Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction.

**(See also Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [87]).

43. As can be seen from the particulars that the plaintiffs have given in respect of paragraphs 13 and 15 of the originating application, the questions of inconsistency with the Territory Plan or the National Capital Plan are ones of evaluation and opinion. That must particularly be so where assessments are to be made against objectives and policies set by the particular planning instrument. The comments by Spigelman CJ in Pallas Newco at 719 [53] and [58] may be adopted to the scheme under consideration in this matter:**

The first factor which may support a conclusion that the appropriate classification of a proposed development is not jurisdictional concerns the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description.

...

For example, an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. Such a decision-making process is unlikely to involve a jurisdictional fact. (See, for example, the High Court's endorsement in Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 303-304 of the judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-466, an approach also affirmed in Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning [1999] FCA 262; (1999) 86 FCR 266 at 272.)

**44. Whilst accepting that there are circumstances where matters of judgment, fact and degree may be involved in jurisdictional facts (see Spigelman CJ in Pallas Newco at 720 [60]), I consider that the overall statutory context in this case demonstrates that the legislature did not intend that the issue of inconsistency to objectively exist but rather that it should be left to the judgement of the decision-maker in determining whether applications should or should not be approved under s 230 of the Land Act (cf Spigelman CJ at 720 [61]).

45. That conclusion is reinforced by the degree of inconvenience that might arise if a valid approval is given but cannot be relied upon by the person who has been given it and by those dealing with the decision-maker (cf Pallas Newco at [63]). The Land Act provides a mechanism for review of approvals and that is by review by the Administrative Appeals Tribunal (AAT). If s 8 of the Land Act were to be a jurisdictional fact, then as such it would need consideration in the light of the fact that there is another avenue open to challenge decisions which are strictly regulated by the time constraints of the review provisions in the Land Act and those contained in the ADJR Act if that Act is applicable.

46. As Spigelman CJ observed in Pallas Newco, at 721 [66], a court retains a discretion to grant relief but with consents of this nature, both in number and significance, a discretionary denial of relief appears to be an inadequate restraint.

47. In the present case, I am satisfied that s 8 of the Land Act was not intended to be an extrinsic, ancillary or preliminary factual circumstance that is legally antecedent to the decision-making process under s 230 of the Land Act. It follows that the question posed in respect of the allegations in paragraphs 13, 15 and 23 of the originating application should be answered in the negative.**

The allegations referable to paragraph 19 of the originating application

48. Paragraph 19 of the originating application pleads:

1. A preliminary assessment of the environmental impact of the proposed development had not been completed as was required by ss 113 and 114 of the Land Act.

49. By further amended particulars handed to the court during the hearing of this matter, the plaintiffs seek to add the following particulars:

(a) The Proposed Development is for the development of a retail centre which involves a new building with a gross floor area of 59,918m2.

(b) The new building will not replace any existing building.

(c) The Proposed Development does not represent a part or the whole of a proposal which has previously been the subject, directly or indirectly, of a previous assessment or has been the subject of another form or investigation which would satisfy the requirements of a preliminary assessment under the Land Act. There was a previous preliminary assessment done of a proposal different to the Proposed Development.

(d) By reason of (a), (b) and (c) the Decision was of a class prescribed by the Territory Plan in Appendix 2 clause 11.1 and Schedule 11.1 "Shop" and "Building".

**50. These further amended particulars are the subject of objection by the defendants as requiring a formal application for leave to amend if it is in fact a new claim or a new articulation of the claim. I do not regard these further amended particulars as formulating a new claim but rather as particularising why a preliminary assessment was required in the circumstances of this case. I would, however, put to one side what is pleaded as a fact in paragraph (c) of the particulars that "There was a previous preliminary assessment done of a proposal different to the Proposed Development". I also, at this stage, only regard these particulars as identifying the aspects of the Territory Plan which define a class of decision to which s 114 of the Land Act refers. If there is an intention to plead further facts in support of the application, there should be an application to amend to do so.

51. Paragraph 20 of the originating application then pleads that by reason of the matter pleaded in paragraph 19, the first defendant exceeded its jurisdiction in approving the amendment.

52. Sections 113 and 114 of the Land Act under the heading "Preliminary Assessments" provide as follows:**

The relevant Minister in relation to a defined decision, or the Environment Minister, may, by written notice to the relevant proponent within 28 days after the day when the decision that a preliminary assessment be required is made, direct the proponent to prepare a preliminary assessment of the environmental impact of the relevant proposal.

If a defined decision is of a class prescribed by the plan, the relevant Minister must, within the period mentioned in section 113, issue a notice under that section in relation to the relevant proposal.

53. The defined decision of a class prescribed by the Territory Plan is found in Appendix 11 "Mandatory Preliminary Assessment". Appendix 11.1 provides:

The items listed in the Schedule 11.1 below are prescribed classes of defined decisions for the purposes of Section 114 of the Land Act except where one or more of the following applies:

1. the proposal is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation;
2. the proposal represents a part or a whole of a proposal which has previously been the subject, directly or indirectly, of a previous assessment or has been the subject of another form of investigation which would satisfy the requirements of a preliminary assessment under the Land Act; or

1. it is intended, by agreement with the Commonwealth, a State or other Territory, that the proposal will be assessed by such an authority.

54. The plan then sets out under "Prescribed Classes of Defined Decisions", an Item and a Criteria:

• Within any land use policy area other than in the area identified by Figure 2 as Civic Centre - City Division, any proposal involving new building that would exceed by more than 7,000m2 the gross floor area of the buildings they have replaced, if any, and/or which have a height of 28m or more
• Within a Mountains and Bushlands; River Corridors; or Plantation Forestry Land Use Policy area, any building

55. The further amended particulars are based on the defined decision being that fulfilling the criteria apposite to Building or Shop. The further amended particulars also seek to pre-empt reliance upon the exception in paragraph (b) of the preface to the prescribed classes of defined decisions.

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

...

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

...

57. The plaintiffs submit, in the present case, that the preparation of a preliminary assessment is a jurisdictional fact and that the first defendant exceeds its jurisdiction if it approves a proposed development in circumstances where a preliminary assessment is required under s 114 of the Land Act, but not obtained.

The plaintiffs' submission in respect of paragraph 19 of the originating claim

**58. The allegations in paragraph 19 of the originating claim stand on a different footing to those paragraphs of the originating claim that allege inconsistency with s 8 of the Land Act. The plaintiffs stress the importance that preliminary assessments have in the scheme of the Land Act.

59. The plaintiffs submit that the requirement for a preliminary assessment is preliminary to the decision-making process and the fact that:**

... excess of jurisdiction will occur if [the first defendant] fails to consider a preliminary assessment in circumstances where, as a matter of objective fact, one was required under s 114 but was not obtained.

60. Although the plaintiffs' proposition appears to be one that is at least arguable, I consider that I am bound to rule against it.

**61. In Canberra Tradesmen's Union Club Inc v Commissioner for Land & Planning [1999] FCA 262; (1999) 86 FCR 266 (the first CTUC case), Miles, Matthews and Lehane JJ determined that the statutory requirement in s 114 of the Land Act is not a "jurisdictional fact" to a determination under s 230 of that Act and that a relevant authority is only required under s 231 to consider a preliminary assessment if, in fact, there is one.

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.

63. I am bound by this decision and should follow it unless it can be distinguished in its application to the matter before me. In Canberra Tradesmen's Union Club Inc and Others v Minister for Environment, Land & Planning and Another [2000] FCA 203; (2000) 98 FCR 145 (the second CTUC case), the Full Court (Miles, Finn and Gyles JJ) did not reconsider the decision in the first CTUC case. In commenting on the passage that I have cited from the first CTUC case, Finn J said (at 147 [41]):

While I am thus unable to attribute to the legislative separation of functions the significance the Full Court has, I nonetheless do not disagree with the Court's conclusions on the construction of the legislation for that reason. The real significance of the separation of functions in that case is reflected in the final observation of the Full Court in the passage quoted above: the minister's s 114 decision could not be attacked collaterally in proceedings for judicial review to which the Minister was not a party_. I agree with that observation though I would add that, despite the dictum of Higgins J (concurred in by Heerey and Mansfield JJ) in_ Canberra Tradesmen's Union Club Inc v Minister for Environment, Land and Planning (1998) 87 FCR 163 at 171; 168 ALR 201, I prefer to leave open the question whether the minister's determination for s 114 purposes could be capable of challenge in properly constituted proceedings for judicial review.

**64. The present proceedings do not seek to review the relevant minister's decision, and even if the particulars of it had been given (as the further amended particulars seek to do), the decision is not challenged by the present proceedings.

65. In referring to the first CTUC case, Gyles J said in the second CTUC case (at 165 [86]):**

The actual ratio of that decision appears to me to be the following:

If the relevant minister concludes that, applying para (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.

**That is precisely what the plaintiffs seek to do in this case before me.

66. Gyles J went on to observe (at 165 [86], [87] and [88]:**

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.

**67. It is these observations that are the basis for the plaintiffs' submission that I should find that s 114 constitutes a jurisdictional fact to an approval under s 230. The second defendant's submissions make the point that Gyles J's observations based on Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) are not exhaustive. Those submissions make the point that another consideration is the consequence of holding void acts done in breach of the condition. One of the factors that the majority of the court considered significant in Project Blue Sky (at 392 [97]) is the public inconvenience that would be the result of the act. This is not a matter upon which I should express a view at this stage.

68. The fact is that the decision of the Full Court in the first CTUC case is binding upon me and there is no point in exploring the issues raised by Gyles J at this stage where I am considering the preliminary question of whether the pleading in paragraph 19 of the statement of claim raises a jurisdictional fact. I am bound to hold that s 114 does not give rise to a jurisdictional fact in respect of the approval under challenge in these present proceedings.

69. I answer the question that is the subject of the order made by this court on 18 April 2007 in paragraph 2(c) of that order:**

In relation to the allegations raised by the plaintiffs in paragraphs 13, 15, 17, 19, 21, 23 and 27 of the originating application, or any one of those allegations, are the parties entitled to adduce evidence in addition to that which was before the first defendant when it made its decision to approve (subject to conditions) the Development Application?

In respect of the allegations raised in paragraphs 13, 15, 19 and 23: No.

In respect of the allegations raised in paragraphs 17, 21 and 27: unnecessary to answer.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the plaintiffs: Mr S J Gageler SC with Mr S W Balafoutis

Solicitor for the plaintiffs: Mallesons Stephen Jaques

Counsel for the first defendant: Mr A Robertson SC with Mr P Walker

Solicitor for the first defendant: ACT Government Solicitor

Counsel for the second defendant: Dr J Griffiths SC with Mr C Erskine

Solicitor for the second defendant: Meyer Vandenberg