ADMINISTRATIVE REVIEW - review of decision to approve development application - limit of ACAT's jurisdiction - section 121(2) Planning and Development Act 2007

APPEAL - standing to appeal - review of all or part of decision of original tribunal - when an error of fact or law should lead to the setting aside of a decision - whether error so material that it affected the decision or otherwise caused a miscarriage of justice

APPEAL - scrutiny of reasons of decision of original tribunal - 'no-evidence' ground

for review - whether it was reasonably open for original tribunal to reach decision it

did - onus on applicant for development to demonstrate compliance with criteria -

whether there was sufficient material upon which it was reasonable for original

PLANNING AND DEVELOPMENT - Territory Plan 2008 - interpretation of rule

90 Multi Unit Housing Development Code - whether "or" should be interpreted as

Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)

Planning and Development Act 2007 ss 120(a), (b), (c), (d), (e), (f), 121(2),

Legislation Act 2001 s139

Territory Plan 2008 Multi Unit Housing Development Code Rule & Criterion 88, Criterion 89, Rule & Criterion 90 sub-rule (a), (b), (c) (i), (c)(ii)

Authorities: Mason and ACT Planning and Land Authority and Or

[2009] ACAT 7 .

Thompson v ACT Planning and Land Authority [2009] ACAT 38.

Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Pearce & Geddes, Statutory Interpretation in Australia Butterworths 6th edn

CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: AA 09/7

1. This is an appeal from a decision made by the ACT Civil and Administrative Tribunal (the original tribunal) to vary a decision made by the ACT Planning and Land Authority (the respondent) approving a development application with conditions.
2. The matter concerns Development Application number 200811758 (the DA), lodged by Jopratz Pty Ltd and Galeotti Holdings Pty Ltd (the developers). The DA sought approval to consolidate Blocks 24 and 25 of Section 26 in the Division of Page, to demolish the existing dwellings on the blocks and to permit the construction of 7 two-storey dwellings with car parking, landscaping and associated works. In order to approve the DA, the respondent had to amongst other things, be satisfied that the DA complied with either rules or criteria contained in the Multi Unit Housing Development Code in the Territory Plan 2008. The respondent approved the DA subject to a number of conditions.
3. The appellant lives in close proximity to the blocks to be developed. She was one of a number of people who objected to the development. She and several neighbours made applications seeking a review of the respondent's decision.
4. The applications were heard by the original tribunal. On 21 April 2009, it decided to vary the respondent's decision but only by amending one of the conditions - condition 7(b). Otherwise, the development application remained approved. The decision is reported as Mason and ACT Planning & Land Authority and Ors. [2009] ACAT 7.
5. The appellant now appeals that decision. She seeks an order setting aside the decision of the original tribunal and substituting a new decision refusing approval of the DA.
6. A number of interlocutory decisions were made before the appeal was heard. Some decisions were made in response to a challenge by the developers to the appellant's entitlement or "standing" to appeal while others were made for the purpose of determining how the tribunal would deal with the appeal in accordance with section 82 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The decisions were :
   1. the appellant is entitled to appeal the tribunal's decision because she was a party to the original application. Section 79(2) of the ACAT Act says that a party to an original application may appeal the decision made by the tribunal on the original application. Section 79(2) should be interpreted literally and not read down to require a party to an original application to demonstrate that they have a special interest to protect or that their interests are especially affected by the appeal in order to establish that they have standing to make an application to appeal;
   2. this is not an appeal that can be dismissed pursuant to section 80 of the ACAT Act;
   3. the appeal would be dealt with as a review of the parts of the original decision specifically referred to in the application for appeal dated 18 May 2009;
   4. the appeal tribunal would not accept further or fresh evidence from the parties but would refer to the evidence before the original tribunal;
7. The documents before the appeal tribunal were:
   1. application for appeal dated 18 May 2009;
   2. order and reasons for decision of original tribunal dated 21 April 2009;
   3. the whole of the bundle of documents referred to as the "Tribunal" documents - this was a bundle of 64 documents totalling 456 pages identified by the Authority as the documents relevant to the review of its decision;
   4. transcript of the proceedings before the original tribunal on 6,7 and 8 April 2009;
   5. documents marked as Exhibits by the original tribunal; namely,
   6. plans of the final development proposal (Ex. A)
   7. witness statement of Aaron Oysher (ExB)
   8. witness statement of Paul Cohen (Ex. F)
   9. revised shadow diagrams (Ex. G)
8. The application for appeal contains five grounds - these grounds determined the parts of the original decision reviewed by the appeal tribunal. When the appeal started, counsel for the appellant indicated he did not press the fifth ground, accordingly, it was not considered by this tribunal.

The Tribunal erred in holding that it did not have the same responsibility as the original decision maker in relation to approval or otherwise of the development application, and that it is not able to have regard to the matters set out in section 120 Planning and Development Act 2007

1. In summary, the appellant submitted that the original tribunal had misdirected itself when at paragraph 29 of its reasons for decision it said:

The tribunal does not have the same responsibility as the original decision maker in relation to approval ...of the DA...Section 121(2) of the Planning Act makes it clear that any review is to be limited to the extent that the proposed development complies with the relevant Rules and Criteria. (emphasis added)

1. This statement appears in a part of the decision in which the original tribunal was considering the powers and functions of the ACAT in relation to applications to review planning decisions. It was important for the original tribunal to analyse its powers and functions in detail because this was the first review of a decision to which the 2008 Territory Plan applied.
2. The appellant's counsel submitted that while the original tribunal was correct in its statement that the ACAT's responsibility on these matters is different from that of the original decision maker, it made a mistake when it said that reviews are limited to the extent that the proposed development complies with the relevant rules and criteria.
3. Counsel for the respondent agreed that this part of the original tribunal's analysis was not correct. He said that this was merely a matter of loose expression which did not constitute an appealable error and that in any event, the original tribunal's reasons for decision showed that it had not acted on the incorrect statement and was not misdirected as a result. Counsel for the developers adopted the same submission.
4. When the original tribunal referred to the "responsibility" of the Tribunal it was referring to the ACAT's jurisdiction in these matters. That issue and the interpretation of Section 121(2) of the Planning and Development Act 2007 (Planning Act) was further considered in detail by the ACAT in the decision of Thomson v ACT Planning and Land Authority [2009] ACAT 38. We accept and adopt that decision.
5. That decision confirms that the Tribunal's jurisdiction to review decisions about development proposals in the merit track is limited by section 121(2) of the Planning Act and that the limiting factor is compliance with a relevant rule. If a development proposal complies with a relevant rule, the Tribunal cannot review the decision to approval the proposal on that point. Compliance with relevant criteria does not limit the Tribunal's jurisdiction. The original tribunal's statement was incorrect in so far as it referred to compliance with relevant criteria as a limitation on the Tribunal's jurisdiction. While it is important that the error is acknowledged and corrected so that readers of the decision are not misled, it does not follow that the error should lead to the setting aside of the decision of the original tribunal.
6. The appeal powers of this tribunal are broad and flexible. This is appropriate given the diversity both of the Tribunal's work and of the circumstances of the people who appear before it. As a consequence however, the legislative scheme setting out the Tribunal's powers and procedures in relation to appeals is sparse in detail. The ACAT Act provides that an appeal may be brought on a question of fact or of law. The ACAT Act is silent about the course an appeal tribunal should adopt if, on examining a question of law or fact when reviewing a decision of an original tribunal; it identifies an error. In these early days of the tribunal's operation, there are few decisions providing guidance on the exercise of the appeal power. This gap will be closed over time as issues arise. It is appropriate that we consider this issue now.
7. The general principle that not every error should lead to the setting aside of a decision is a familiar one. In some jurisdictions, errors in decisions have to be shown to have brought about a miscarriage of justice before the decision will be set aside or varied. The submissions made by Dr Jarvis for the respondent referred to authorities concerning the circumstances in which a mistake made by an administrative decision maker should be regarded as an error that vitiates the decision.
8. In Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399 at 401, Hill J, when considering an appeal against a decision of the Administrative Appeals Tribunal noted:

An appeal to this court under s44(1) of the Administrative Appeals Tribunal Act 1975(Cth) lies only on a question of law. It is not disputed in the present case that there was a question of law involved or that the appeal was competent. It should perhaps here be noted, however, that merely because the tribunal has erred in law will not necessarily result in its decision being set aside, at least in a case where the error would not have affected the conclusion in fact reached.

1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353, Mason, CJ when considering whether the Australian Broadcasting Tribunal had made an error of law enabling judicial review said:

A decision does not 'involve' an error of law unless the error is so material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been or might have been different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.

1. These are persuasive authorities supporting a principle of common sense. It is appropriate that this Tribunal adopt the same approach. When an appeal tribunal dealing with an appeal as a review of all or part of an original decision, identifies an error on a question of fact or law, the appeal tribunal should as a general rule, only set aside the original decision if it is satisfied that the error was so material that it affected the conclusion reached, or where allowing the decision to stand despite the error would otherwise cause a miscarriage of justice. To take any other approach is likely to lead to pointless re-litigation.
2. In this case, an examination of the reasons for decision of the original tribunal shows that it did not act on its misstatement of the effect of section 121(2) of the Planning Act. The original tribunal reviewed the decision of the respondent in so far as the decision related to whether the development proposal complied with relevant criteria. When doing so, it took account of the considerations in section 120 of the Planning Act. Express references to relevant sub-sections of section 120 may have made that more obvious, but ultimately, the text speaks for itself. The representations received by the respondent formed part of the evidence before the original tribunal in the "T" documents. They are referred to at paragraphs 4, 10, 32 and 52 of the reasons - the lack of express reference to section 120(c) is irrelevant. The reasons show that the advice of entities was considered - the tribunal did not need to flag that it was doing so in accordance with section 120(d). Likewise, the reasons when read as a whole show that the considerations listed in section 120(a), (b) and (f) were taken into account indirectly and in some paragraphs, directly. Section 120(e) was not a relevant consideration for this DA.
3. We are not satisfied that the original tribunal's misstatement caused it to take an incorrect approach to its task. We are not satisfied that the error affected the decision or that there was any miscarriage of justice as a result. The decision should not be set aside on this ground.

The Tribunal erred in holding that Criterion 88 had been met when there was no evidence on which it could reach that conclusion.

1. This issue is dealt with at paragraphs 74 to 81 of the reasons for decision. Rule and criterion 88 relate to the provision made in the development for private open space. The developer did not provide a calculation of private open space sufficient to meet the requirements of rule 88 or plans from which a calculation was possible. The original tribunal found that because there was no calculation demonstrating that the proposal satisfied rule 88, it had to review whether the proposal complied with criterion 88.
2. Criterion 88 is:

Private open space is of dimensions to suit the projected requirements of the dwelling's occupants and to accommodate both outdoor recreation needs as well as providing space for service functions such as clothes drying and domestic storage.

1. In summary, the appellant's counsel submitted that the original tribunal concluded that criterion 88 was met by incorrectly referring to evidence relevant only to whether the DA complied with criterion 89 and that there was no evidence of compliance with criterion 88.
2. If the reasoning set out at paragraphs 78 to 81 is considered in isolation, this submission appears to have some merit. In these paragraphs, the original tribunal refers to evidence relevant to compliance with criterion 89 and appears to conclude that, on the basis of that evidence, it is satisfied that there is compliance with both criterion 88 and 89. However, this is an unduly close scrutiny of the text.
3. The High Court in its decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 affirmed the proposition that the reasons of an administrative decision-maker are not to be scrutinised minutely. The majority said:

...the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

1. We accept the submission of counsel for the respondent to the effect that the test in relation to a 'no-evidence' ground of review is whether there was any material on which it was reasonably open for the decision-maker to reach the conclusion it did: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ at 355-356.
2. A reading of the whole of the section of the reasons for decision which deal with rule and criterion 88 (paragraphs 74 to 81) shows that there was sufficient evidence before the tribunal for it to conclude that there is compliance with criterion 88. By bundling its conclusion concerning compliance with criterion 88 with its conclusion concerning criterion 89, the original tribunal clouded the issue somewhat. However, a reading of the transcript together with the reasons shows that there was material available to the original tribunal on which it was reasonably open for it to decide that criterion 88 was satisfied.
3. The evidence of two witnesses relating to the quantity of open space was referred to and considered at paragraphs 74 to 78. The transcript shows that some time was spent both on the issue of quantity of space and the qualitative considerations relevant for criterion 88 during the examination and cross examination of the two expert witnesses. We are satisfied that there was sufficient evidence for the original tribunal to reasonably conclude that the DA complies with criterion 88. This ground of the appeal is not made out.

1. The third ground of appeal concerns the interpretation and application of rule 90. The ground reads:

The Tribunal erred in holding that Rule 90 should be construed as requiring that the specified private open space be located either not to the south, south-east or south-west of the dwelling or so as to maintain a minimum of 3 hours sunlight onto 50% of the ground, and as not requiring both elements to be met.

1. Rule 90 also concerns private open space. It provides:

Except as provided for in Rule 92, an area of private open space with a minimum dimension of at least 6 metres is:

1. screened from public view
2. not forward of the building line except where permitted by, and illustrated in, an approved estate development plan

(i) not to the south, south-east or south-west of the dwelling, or

(ii) to maintain a minimum three hours sunlight onto 50% of the ground between the hours of 9.00am and 3.00pm on 21 June (winter solstice)

1. at ground level with direct ground access from a main daytime living area of the dwelling.

1. The evidence before the original tribunal was that, with the exception of Unit 3, each unit has an area of private open space with a minimum dimension of at least 6 metres that is screened from public view, is not forward of the building line, is located not to the south, south-east or south-west of the unit and is at ground level with direct ground access from a main daytime living area of the dwelling. It was accepted that Unit 3 could not comply with rule 90 because its private open space is forward of the building line.
2. The appellant argued before the original tribunal that this was not sufficient to establish that units 1, 2 and 4, 5, 6, and 7 complied with rule 90. The appellant submitted that the parts of sub-rule (c) impose cumulative requirements rather than alternatives and that sub-rule (c) must be read by changing the word "or" to "and" in order to avoid an absurdity. The original tribunal rejected the argument. Ground 3 of the appeal asserts that it made an error when it did so.
3. Rule 90 supports Intent a) of Element 5 of the Multi-Unit Housing Development Code relating to Amenity. Intent a) is that developments should be sited and designed to maximise solar access to private open space and living areas of dwellings.
4. Mr Arthur, for the appellant, said that Intent a) could only be achieved if both parts of sub-rule (c) were satisfied. To interpret the sub-rule as imposing disjunctive requirements would, he submitted, frustrate the intent of the Territory Plan because it would be possible for a developer to locate private open space so as to comply with sub-rule (a), (b) and (c) (i) but to have no sunlight on the ground on 21 June. This could occur because of shadowing from walls or trees. This would frustrate rather than support Intent a). He submitted that it was more likely that the amendment to the rule was intended to require that units must be located not to the south, south-east or south-west of the dwelling and maintain a specified minimum amount of sunlight on the winter solstice. If these dual requirements are not met, the unit needs to comply with criterion 90. Such an interpretation would he said, add more "spine" to the element and make it more likely that solar access is maximised in multi-unit dwellings.
5. In support of his submission Mr Arthur referred to the provisions of section 139 of the Legislation Act 2001 requiring an interpretation that best achieves an Act's purpose. He also referred to the discussion in the text, Pearce & Geddes, Statutory Interpretation in Australia Butterworths 6th edn at [2.25] of the circumstances in which courts have been prepared to treat the disjunctive 'or' as cumulative. The text indicates that those circumstances are limited to cases in which it is clear that a mistake has been made or cases in which the words are used to join a list of items. The cases are referred to as examples of the correction of typographical or grammatical errors.
6. Mr Arthur supported his argument by reference to statements by the representative of the respondent that the intention of the 2008 Plan was to maintain the previous policy approach in a new format. He said that unless Rule 90 (c) was interpreted as he contended, that intention would not be met.
7. Like the original tribunal, we do not accept this submission. In order to justify reading a word used in legislation (and by this we include subordinate legislation) as though it means the opposite, there must be a clear absurdity. The examples of the cases in which courts have interpreted the word "or" as meaning "and" referred to in Geddes & Pearce each demonstrate a clear mistake - they are cases in which treating the word "or" according to its ordinary disjunctive meaning, inevitably leads to an illogical absurdity. That is not the case here.
8. The Territory Plan 2008 (the Plan) commenced on 13 February 2008. Notifiable Instrument 2008-289 introduced a number of variations to the Plan a few months later on 11 July 2008. The variations included an amendment to Rule 90 of the Multi Unit Housing Development Code that introduced the words of sub-rule (c)(i) set out above. The amendment introduces a quantitative measure relating to the geographical aspect of a unit as an alternative to the mathematical calculation of the amount of sunlight on a percentage of ground between particular hours on a specified day of the year. It is possible to comprehend that geographical aspect can be a reasonable alternative to a mathematical calculation of solar access. There may be individual cases in which compliance with the geographical aspect will lead to less solar access than compliance with the mathematical requirement, but that is not inevitably the case. It is not, on its face, so contrary to the purpose expressed in Intent a), as to make the disjunctive interpretation an illogical absurdity. We are not satisfied that ground 3 is made out.
9. It follows then that each unit in the proposed development complies with rule 90 except for Unit 3. Units 1, 2, 4, 5, 6, and 7 all comply with rule 90 (a), (b), (c)(i) and (d). This is the effect of the original tribunal's conclusion at paragraph 84 of its written reasons for decision. Because of the restriction imposed by section 121(2) of the Planning Act, the original tribunal should then have been limited to a consideration of whether unit 3 meets the requirements of criterion 90.

The Tribunal erred in holding that there was an onus on the appellants to demonstrate that overshadowing by fences and courtyard walls prevented maximum year round use, and not on the proponent to demonstrate that the private open space provided for maximum year round use, and erred in holding that Rule 90, or alternatively criterion 90, had been complied with.

1. This ground of appeal has two components. First, it asserts that the original tribunal incorrectly imposed an onus on the appellant to prove that the provision for private open space did not allow maximum year round use and secondly, that the tribunal had erred in holding that there was compliance with rule 90 or criterion 90.
2. We observe that it is only criterion 90, and not rule 90, that makes reference to maximum year round use. Unit 3 is the only unit to which criterion 90 is relevant. There is nothing in the original tribunal's reasons to indicate that it held that unit 3 complied with rule 90. It expressly held in paragraph 84 of its written statement of reasons, that unit 3 did not comply with rule 90 and by inference that all units other than unit 3 did comply with rule 90. That finding was in our view, as indicated above, correct.
3. This ground of appeal is limited to the original tribunal's consideration of whether unit 3 complied with criterion 90.
4. The first component of the ground of appeal relates to statements at the end of paragraph 86 and at paragraph 87 of the statement of reasons of the original tribunal. They said:

86...While the private open space of unit 3 in front of the building line was identified as not complying with Rule 90 there was no evidence or submission that challenged Mr Osyher's statement that this area complied with Criterion 90.

87. The Tribunal was given no evidence to demonstrate that overshadowing by the fences and courtyard walls prevented maximum year round use, which is the only relevant test of C90. In the absence of evidence to the contrary and because the areas of POS under consideration meet the alternate test of not being located to the south, south-east or south-west of the dwelling, the Tribunal accepts that Criterion 90 will be complied with.

1. The appellant submitted that the words used by the original tribunal in this passage indicated that it incorrectly expected the appellant to produce evidence showing that there was no compliance with criterion 90. The appellant argued that there was no or at least no adequate evidence of compliance with criterion 90, and that, in the absence of such evidence, the original tribunal should have found that the criterion was not complied with.
2. We accept that the way in which the original tribunal has worded its reasoning in these paragraphs could lead to an inference that it was imposing an onus on the appellant to produce evidence of non-compliance with criterion 90. The wording of the last sentence of paragraph 87 could also indicate some confusion between rule 90 and criterion 90 - geographical aspect is not an alternate test under criterion 90. However, in our view, the original tribunal was doing no more than indicating that it was basing its decision on the evidence before it.
3. The introduction to the Multi Unit Housing Development Code clearly indicates that the onus is on the applicant for development to demonstrate, by supporting plans and written documentation, that a proposed development in the merit track satisfies the relevant criteria.
4. All that the original tribunal (because of the limit imposed on review by section 121(2) of the Planning Act) could consider here was whether there was evidence sufficient to show that Unit 3 satisfied criterion 90. Criterion 90 reads:

Private open space is capable of enabling an extension of the function of the dwelling for relaxation, dining entertainment and recreation

Private open space forward of the front building line ensures the amenity of the private open space and the dwelling is protected whilst maintaining opportunities for passive surveillance.

Private open space is to take account of outlook, natural features of the site and neighbouring building or open space and to provide for maximum year round use.

1. The original tribunal supported its finding that unit 3 complied with criterion 90 by reference to the evidence of Mr Oshyer and Mr Cohen. Mr Oshyer's oral evidence referred to paragraph 40 of his written statement which in turn referred back to the plan at page 39 of the Tribunal Documents. Mr Cohen's oral evidence about unit 3 is not as specific. When talking about criterion 90 he repeatedly referred to private open spaces as though he were considering more than just unit 3, however, it is clear that his comments applied at least to unit 3. His written statement did not refer to unit 3 and criterion 90 but did address unit 3 in the context of criterion 89.
2. When all the evidence is taken as a whole, we are satisfied that there was sufficient material upon which it was reasonable for the original tribunal to reach its conclusion that unit 3 complies with criterion 90. The original tribunal's references to the absence of evidence to the contrary were no more than statements acknowledging that there was nothing before it contradicting the evidence of Mr Osyher or Mr Cohen. The original tribunal was not indicating that the appellant had an onus to prove non-compliance. It was merely describing the evidence that it had. We are not satisfied that ground 4 is made out.
3. The appeal tribunal is not satisfied that there is a basis for setting aside the decision of the original tribunal and the appeal is therefore, dismissed.