Concerned Citizens of Canberra Inc v Chief Executive

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority)

Citation: [2015] ACTCA 56

Hearing Dates: 14 November 2014

Decision Date: 6 November 2015

Before: Refshauge J

Decision: 1. The application be dismissed. 2. The applicant pay the respondent’s costs of the application.

Catchwords: APPEAL – Jurisdiction, practice and procedure – leave to appeal – application for leave to appeal out of time – explanation for delay – date of orders – orders made by pronouncement in open court – amendment of reasons – new set of reasons issued – orders not recalled or remade – appeal taken from the order made, not the reason given – unable to find miscommunication of instructions – no reasonably explanation for delay

APPEAL – Jurisdiction, practice and procedure – leave to appeal – application for leave to appeal out of time – prospects of success – lack of reasonable prospects of success – substantial prejudice to third party

APPEAL – Judicial review – standing – physical proximity to site of development – no personal interest– applicant did not exist until after the commencement of proceedings – not a representative body – no relevant spiritual or religious beliefs – not an “aggrieved party” – substitution of parties – amended Originating Application – position expressly reserved – standing to be addressed at trial – standing claimed on the basis of being a tax-payer – alleged breach of s 116 of the Constitution – ‘a person aggrieved’ – no impact beyond that to the public at large

LOCAL GOVERNMENT – Planning and development – application for development approval – public notification – signage – s 155(8) of the Planning and Development Act 2007 (ACT) – directory provision – substantial compliance – exemption clause – legislative intent – validation of approval without compliance with public notification provisions – public register – electronic register – access facilitated by counter staff – deficiencies in the entry on the register – no detriment arising out of non-compliance – no evidence that the legislature intended the non-compliance to result in the invalidity of the approval

LOCAL GOVERNMENT – Planning and development – provision of further information to the decision maker – obtaining of further advice – non-compliance with legislative requirement – transparency – public access – entity advice – facilitation of good planning practice –

LOCAL GOVERNMENT – Planning and development – compliance with Code considerations – development applications require substantial compliance – failure to address irrelevant considerations is not inconsistent with substantial compliance

STATUTES – Interpretation – principles of contract not applicable in statutory construction – objects of the Act – Explanatory Statement – Second Reading Speech – values expressed by the legislature cannot replace the words of the statute

EVIDENCE – Colouring of evidence to support case – hesitation to accept evidence without corroboration – absence of further explanation or evidence

EVIDENCE – Expert evidence – legitimate differences of opinions between experts – no preference of one expert over another

Legislation Cited: Administrative Decisions (Judicial Review) Act 1989 (ACT) Associations Incorporation Act 1991 (ACT), s 23 Freedom of Information Act 1989 (ACT) Planning and Development Act 2007 (ACT), ss 6, 10(1), 10(3), 12, 27, 28, 28(1)(a)(ii), 28(1)(a)(iv), 28(1)(a)(v), 28(2), 28(3)(a), 29, 29(3)(a), 30, 121, 139, 139(2)(b)(i), 139(2)(d), 139(3), 141, 142, 148, 149, 151, 152, 155, 155(2), 155(3), 155(8), 162, 166, 167, 193, 411, 412, Sch 1, Div 7.3.4 Supreme Court Act 1933 (ACT), s 37J Tax Bonus for Working Australians Act (No 2) 2009 (Cth) Vicious Lawless Association Disestablishment Act 2013 (Qld)

Court Procedures Rules 2006 (ACT), rr 30, 5332(2), 5405, 5405(2), Div 5.4.3,

Planning and Development Regulation 2008 (ACT), s 26

Territory Plan 2008 (ACT)

Australian Constitution, s 116

Cases Cited: Argos Pty Ltd v Corbell (2014) 315 ALR 44 Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 Commonwealth v Verwayen (1990) 170 CLR 394 Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) [2013] ACTSC 50 Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) (2014) 286 FLR 355 Cowell v Taylor (1885) 31 Ch D 34 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Denmeade v Stingray Boats [2004] FCA 1503 Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104 Doyle v Gillespie (2010) 4 ACTLR 188 Forman v ACT Planning and Land Authority (2013) 279 FLR 54 Greenhalgh v Mallard [1947] 2 All ER 255 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157 Helman v Byron Shire Council (1995) 87 LGERA 349 H & E Van Der Sterren v Cibernetics (Holdings) Pty Ltd (1970) 44 ALJR 157 House v The King (1936) 55 CLR 499 Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 Jones v Dunkel (1959) 101 CLR 298 Kuczborski v Queensland (2014) 314 ALR 528 Malik v ANZ Banking Group Ltd [2010] ACTCA 11 Nolan v Clifford (1904) 1 CLR 429 North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 Nottle v Trenerry (1993) 3 NTLR 68 Ogle v Strickland (1987) 13 FCR 306 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Pozniak v Minister for Health (1986) 9 ALN N256 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Ratnam v Cumarasamy [1965] 1 WLR 8 Re Daws and Australian Securities and Investments Commission (Unreported, Administrative Appeals Tribunal, S Penglis, Senior Member, W 2005/008, 5 April 2006) Re Hesster Pty Ltd v Australian Communications and Media Authority [2006] AATA 1085 Re McHarlton and Collector of Customs (1977) 18 ALR 154 Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 Robertson v Hobart Police & Citizens Youth Club Inc (Unreported, Supreme Court of Tasmania, Nettlefold, Cosgrove and Cox JJ, No 59/1982, 22 July 1982) R v Meyboom (2012) 256 FLR 450 Scurr v Brisbane City Council (1973) 133 CLR 242 SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 Southside Auto (1981) Pty Ltd v Commissioner of State Revenue (2008) 37 WAR 245 SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd (1966) 115 CLR 353 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565 Tydeman v Roberts [1985] 2 Qd R 144 United States Tobacco Co v Minister for Consumer Affairs (1998) 20 FCR 520

Texts: Australian Capital Territory, Parliamentary Debates, Legislative Assembly,14 December 2006, pp 4137-45

Explanatory Statement, Planning and Development Bill 2006 (ACT)

M Aronson, B Dyer and M Groves, Judicial Review of th Administrative Action (Thomas Reuters: Sydney, 2009) 4 ed

Macquarie Dictionary

Parties: Concerned Citizens of Canberra Inc (Applicant) Chief Planning Executive (Respondent)

Representation: Counsel Mr P E King (Applicant) Mr J J Hutton (Respondent)

Solicitors Robert Balzola & Associates (Applicant) ACT Government Solicitor (Respondent)

File Number(s): ACTCA 39 of 2014

Decision under appeal: Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Mossop M Date of Decision: 4 July 2014 Case Title: Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) Citation: [2014] ACTSC 165

REFSHAUGE J:

1. Canberra Muslim Community Inc (CMCI) is an association incorporated under the Associations Incorporation Act 1991 (ACT). It wishes to build a mosque in Gungahlin, ACT.

2. In order to do so, it was granted a lease of Crown land on 8 August 2011 for a term of 99 years. It also licensed some adjacent land for temporary parking.

3. On 30 May 2012, a Development Application was submitted to the Planning and Land Authority (the Authority), a body corporate established under s 10(1) of the Planning and Development Act 2007 (ACT) (the PD Act). By s 10(3), the Authority is the Chief Planning Executive, the respondent. I shall, for the purposes of these reasons, refer to the respondent as “the Authority” unless otherwise appropriate. The operation of the Authority is supported by an administrative unit, the ACT Land and Planning Authority (ACTPLA), established within the Environment and Sustainable Development Directorate of the ACT Government.

4. The Development Application was submitted by an agent, on behalf of CMCI, for approval to construct the mosque on the land the subject of the Crown Lease. Under s 121 of the PD Act, the Authority was required to notify the Development Application publicly, in accordance with Div 7.3.4 of the PD Act. The Development Application was publicly notified between 15 June 2012 and 6 July 2012.

5. On 4 July 2012, Mr Robert Balzola, a solicitor acting for Concerned Citizens of Canberra, an unincorporated entity, requested an extension of the public notification period for the Development Application. After some correspondence, the Chief Planning Executive wrote to Mr Balzola informing him that the application for an extension of time was refused. In these reasons, I shall refer to this decision as the First Decision.

6. After consideration, the Development Application was approved on 29 August 2012, subject to conditions. I shall refer to this decision as the Second Decision.

7. On 9 August 2012, proceedings were purportedly commenced in the Supreme Court by the unincorporated body, Concerned Citizens of Canberra, seeking judicial review of the First Decision under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (Judicial Review Act).

8. The applicant, Concerned Citizens of Canberra Inc, is an association also incorporated under the Associations Incorporation Act. It was incorporated on 13 August 2012.

9. Among its objectives were the conducting of proceedings to challenge the Second Decision and to raise funds with which to conduct those proceedings and these were publicly acknowledged as its “principal activities”.

10. By a consent order made on 16 August 2012, the applicant was apparently permitted to be substituted as the plaintiff in the proceedings.

11. On 26 March 2013, the applicant was permitted to file an amended Originating Application adding a challenge to the Second Decision. See Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority) [2013] ACTSC 50 (Concerned Citizens No 1).

Leave to Appeal out of Time

17. Rule 5405(2) of the Court Procedures Rules permits the Court give leave to appeal, notwithstanding that the time for starting an appeal has expired. Procedurally, Div 5.4.3 regulates such applications.

18. The applicant filed an Application in Proceedings, supported by an affidavit of Irwin Ross and a Draft Notice of Appeal. This purported to satisfy the requirements of r 5332(2) of the Court Procedures Rules.

19. Under s 37J of the Supreme Court Act 1933 (ACT), the application may be decided by a single judge.

20. I have set out in R v Meyboom (2012) 256 FLR 450 at 458-62; [48]-[76], the principles upon which a court should act in considering whether to grant leave to appeal after the expiry of the time limited for appeal.

21. The principles may be summarised as follows:

22. Time limits are important and must, prima facie, be obeyed.

23. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.

24. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.

25. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.

26. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.

27. The mere absence of prejudice is not enough to justify the extension of time.

28. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.

29. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.

30. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.

31. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.

32. While the terms used are not identical, this is similar to the summary of principles set out by the Full Court of the Supreme Court in Director of Public Prosecutions for the Australian Capital Territory v The Honourable Acting Justice Brian Martin [2014] ACTSC 104 at [159]. Two considerations there expressly mentioned, but not, perhaps, clearly included in my summary above, are the length of the delay and whether the interests of third parties are affected.

The applicant’s evidence: explanation for delay

24. Three affidavits were ultimately filed and read by the applicant. Each of the affidavits was made by Irwin Ross, President of the applicant. He was also cross-examined.

25. The first affidavit was made on 8 August 2014, which, as noted above (at [18]), was filed with and in support of the application for leave to appeal despite the expiry of the time limited for appeal. It did not really comply with r 5332(2) of the Court Procedures Rules as it made no reference to the nature of the case nor the questions involved and it did not really set out the reasons why leave to appeal should be given as required by the rule. It simply set out an explanation of the delay.

26. Mr Ross deposed that the decision from which the applicant seeks to appeal was delivered on 4 July 2014. He then deposed that an “amended version of the final orders” was “re-issued” on 7 July 2014. On that latter date, counsel’s advice on “the operation of appeal civil procedure rules” was sought.

27. He deposed that his lawyer, Mr Balzola, telephoned the Registry of the Supreme Court on 8 July 2014 seeking to confirm the correct form and time limits for appeal. His call was, it appears, not returned. He also sent an email to the appeals clerk but no reply was received. Mr Balzola again telephoned but received no reply.

28. There are three things to note about this evidence. In the first place, the time limits are to be found in the Court Procedures Rules which are accessible on the ACT Legislation Register, a publicly accessible and free website, on which also are to be found the relevant forms. It is inconceivable that a lawyer would not have access to this information.

29. Secondly, the application and affidavit actually filed by the applicant gave the address for service of the applicant as the address of a prominent firm of local Canberra solicitors by whom the documents appear to have been filed, and which firm is a leading litigation firm. No explanation was received as to why the information sought was not asked for from that firm.

30. Thirdly, no affidavit was filed by Mr Balzola himself in which he could give evidence of exactly what was done and not done.

31. Mr Ross then deposed as to what the applicant did and, because it became important in the proceedings, I set out this evidence in full as follows:

32. Between 17 July and 1 August 2014 our Association held meetings, both general and committee meetings, for the purpose of determining whether we ought proceed with an Appeal. 13. Between 1 and 4 August 2014, that is, over that weekend, our association sought opinion of other members not present at the meeting and other persons as to the merits of appealing the decision in the Court Below. 14. On Monday 4 August 2014 I notified our solicitors to file and serve an appeal.

33. The second affidavit of Mr Ross was made on 3 October 2014. It was clearly intended to address the deficiencies in the earlier affidavit and it does so, to an extent.

7 July 2014 Mr Balzola informed Mr Ross that he had spoken to Canberra barrister Steven Hausfeld seeking advice on “the operation of appeal civil procedure rules” but that Mr Hausfeld was unable to answer his questions satisfactorily. 8 July 2014 Mr Balzola informed Mr Ross that he had rung the Registry of the Supreme Court to seek advice on forms and time limits but had not had a return call. He had also sent an email for the same purpose but had received no reply. 7-15 July 2014 Period during which Mr Ross was advised by Mr Balzola that counsel, Mr King, was on annual holidays and his unavailability was “one of the factors for [the applicant’s] delay in instructing Mr Balzola to lodge the appeal”. 11 July 2014 Mr Balzola spoke to Mr Ross expressing his opinion that there were reasonable grounds to appeal. 16 July 2014 Mr Balzola emailed Mr Ross attaching a draft Notice of Appeal seeking instructions as to the appeal. Mr Balzola also advised – whether by phone or email was not clear – that he had again telephoned the Registry without a return call. 21 July 2014 Meeting of the applicant to authorise appealing. Mr Ross said: The reason for the delay in convening this first meeting was due to the fact that our AGM was due to be held and the Standard Rules and Regulations required a minimum of two weeks’ notice for a special meeting (p 14, paragraph 26(1) entitled ‘Notice’). The minutes of the meeting attached disclosed that this was the Annual General Meeting and that there was discussion of the appeal. It was decided not to vote on whether to appeal until four questions were put to Mr Balzola and to Mr King. The meeting at which that would be discussed was set for 28 July 2014. 28 July 2014 Further meeting held at which it was unanimously agreed to appeal the decision of Master Mossop. There were a number of attendees and a large number of proxies. 29 July 2014 Mr Ross communicated with Mr Balzola that he should “begin the appeal in court”. Mr Ross continued “unknown to me Mr Balzola misunderstood my communication”. 4 August 2014 Miscommunications were clarified and Mr Balzola “took my instructions to begin appeal proceedings”. 8 August 2014 Mr Balzola advised Mr Ross that the application to appeal despite expiry of the appeal period had been lodged.

39. As I have noted earlier, Mr Balzola did not lodge an affidavit. There was no explanation as to why he did not do so. Indeed, he had made an affidavit earlier in the proceedings relating to other issues. This is important, for the content of some conversations is important, such as that with Mr Hausfeld. It is difficult to see what questions about procedure he would have been unable to answer satisfactorily and the absence of particularity is, at least, unhelpful. It is also curious that this information was not included in Mr Ross’ first affidavit which, in the light of this information, seemed designed to lay blame for the delay on the Supreme Court Registry.

40. Mr Ross was cross-examined about matters in his affidavit. The salient points in the cross-examination are as follows.

41. Mr Ross agreed that the decision of Mossop M was “of great concern” to the applicant, which had suffered a “seeming setback”.

42. Mr Ross agreed that the meeting of 21 July 2014 was the Annual General Meeting of the applicant. He agreed that he had convened the meeting on, or at least no earlier than, 11 July 2014, as stated in his second affidavit. He agreed that this was less than the 14 days, which the Rules of the applicant required as notice of an Annual General Meeting. He gave no explanation, despite having relied on the notice as explaining the “delay in convening the first meeting” as noted above (at [38] – 21 July 2014).

43. He agreed that, prior to the meeting of 21 July 2014, he had received from Mr Balzola a copy of a draft Notice of Appeal and had discussed the grounds of appeal with Mr Balzola, but did not provide that draft to the meeting. He did not explain why, though it seems odd, given that one of the questions the meeting raised was “on what grounds are we appealing?”.

44. As to the four questions which that meeting had requested him to raise with the applicant’s legal advisers, he agreed that he had, by the further meeting on 28 July 2014, received answers to those questions.

45. Mr Ross was unable to be present at that later meeting. He was asked whether he had provided a proxy and initially explicitly denied voting by proxy. When challenged on that, he prevaricated and then added, a little curiously,

But as you are nailing me down for an exact thing of it, I will need to check to give an honest answer, which is what I’ve said I would do.

46. He was then shown an unredacted copy of the minutes of the meeting which showed him as having provided a proxy for the meeting at which the vote to proceed with the appeal was recorded as being unanimous. He conceded that he had provided the proxy.

47. As a result of the meeting, he contacted Mr Balzola, as directed by the meeting. He did not recall who had advised him of that direction and, when asked who had advised him, made a curious comment, “... no, because I know I never wanted to have the decision given to Mr Balzola”. I am not sure what was meant by that answer.

48. He was sure that he then rang Mr Balzola on 29 July 2014 but could not recall precisely the words he used in speaking to him. To the best of his recall, he said to Mr Balzola:

... the meeting agreed to go ahead with the appeal, and so we will go ahead.

49. He understood that he had given Mr Balzola final instructions to file and serve the Notice of Appeal and that there was no need for the members of the applicant to consider further the merits of appealing. Nevertheless, the members, he said, continued to talk and ask questions, but the decision had been made.

50. He said that it was a surprise when Mr Balzola told him, on 4 August 2014, that he had not filed and served the Notice of Appeal as he had, so far as he was concerned, given those final instructions.

51. He then said that he did not give any instructions to Mr Balzola to complete the application for leave to appeal, despite the expiry of the time for appeal; he was simply told by Mr Balzola that he had done it.

52. That was again at least curious, since Mr Ross said that this was advised to him on 8 August 2014 but he had signed an affidavit on that date which was filed in court on that date. Indeed, Mr King asserted that Mr Ross “who actually filed the documents himself”.

53. When this was pointed out to him, Mr Ross then changed his evidence to say that “there would have been some conversations and explanations about it and the request for the affidavit to be given”.

54. He agreed that “the best explanation for why there had been a delay was that there had been this miscommunication between [him] and Mr Balzola”, despite not stating in his first affidavit that this was or the reason why the date for filing the appeal in time had been missed. Indeed, he did not say in that first affidavit that he had given Mr Balzola final instructions on 29 July 2014.

55. Mr Ross agreed that, after 29 July 2014, he had further conversations with members of the applicant about the merits of prosecuting the appeal. He appeared to accept that the affidavit, in which this was stated, conveyed the impression that, until 1 August 2014, the applicant was still meeting for the purposes of whether to proceed with the appeal.

56. Mr Ross was also asked about his comment in his affidavit of 8 August 2014 that the applicant had held meetings between 17 July and 1 August 2014 and agreed that the only records of meetings were the minutes of the meetings on 21 and 28 July 2014 and he said that, in making the statement in the affidavit he was “not ... implying, that there were other meetings outside these two”. He was only aware of these meetings. It seems to me, in the light of this evidence, that the statement in his affidavit was at least capable of being regarded as intended to give an impression of wider and greater consideration and discussion by members than had actually been had and given.

Consideration of explanation for delay

57. The delay between the expiry of the time within which the appeal may be taken and the application for leave is 7 days, between 1 and 8 August 2014.

58. While that is not a long period, I remind myself of what the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12, that rules of court which prescribe time limits should ordinarily be observed. The court may, if appropriate, refuse leave even where the delay is only a matter of days: Malik v ANZ Banking Group Ltd [2010] ACTCA 11 at [32].

59. Lest there be any doubt, I am firmly of the view that the orders from which the appeal can be taken were made on 4 July 2014. Mr King contended that they were made on 7 July 2014. I reject that.

60. The learned Master delivered judgment on 4 July 2014. He orally pronounced the orders of the court on that day and then published his reasons. As has become common, the orders made were set out in the reasons at [341]. This is not, in my view, the making of the orders. That is effected by the pronouncing in open court the orders (whether by reading them out or incorporating them by reference when they are made by directing attention to any paragraphs in the reasons).

61. The learned Master later wished to amend the reasons by making three changes: a change to some formatting, the deletion of “the” before the words “either party” in the fourth order made and correcting a numbering error to certain paragraphs of the reasons. That was done on 7 July 2014.

62. The learned Master chose to issue a new set of reasons incorporating the amendments. His Honour did not recall the orders and remake them.

63. An appeal is taken from the order made and not from the reasons given, as pointed out by Nettlefold J in Robertson v Hobart Police & Citizens Youth Club Inc (Unreported, Supreme Court of Tasmania, Nettlefold, Cosgrove and Cox JJ, No 59/1982, 22 July 1982) at p 6. See also Southside Auto (1981) Pty Ltd v Commissioner of State Revenue (2008) 37 WAR 245 at 261; [50].

64. Though of limited precedent value, I note that Griffith CJ commented in argument in Nolan v Clifford (1904) 1 CLR 429 at 437, which is echoed in the comment by Nettlefold J, that “[i]t sometimes happens that the reasons are quite wrong but the order is the only order which could reasonably have been made”.

65. The fact that one amendment (deletion of “the”) was made to an order does not enlarge the time for appeal. See Denmeade v Stingray Boats [2004] FCA 1503 at [24].

66. Thus, on no view of the matter did the time for appeal commence from 7 July 2014.

67. I formed the view that Mr Ross, though not at all a dishonest witness, was colouring his evidence to give it the most favourable support possible to his case. To refer to meetings between 16 July and 1 August 2014 when there were only two such meetings on 21 and 28 July 2014 is to be strictly accurate but to imply a greater level of activity than the facts admit. There were other similar examples.

Prospects of success

77. Much of the hearing was taken up with a consideration of whether the appeal had sufficient prospects of success to justify the granting of leave. It is to this issue that I now turn.

78. Because of the complexity and number of issues, it is convenient to deal with each one seriatim and I will do so.

(a) Public Notification – Signage

Facts

79. Section 121 of the PD Act requires a development proposal to be publicly notified under Div 7.3.4. Under that Division, s 152 requires notification under s 155 which section requires a sign, stating the development proposed to be undertaken, to be displayed “on the place to which the application relates”.

80. It also requires a notice to be published in a daily newspaper. There was no issue in these proceedings that a proper notice was duly published in The Canberra Times as required.

81. The learned Master found that a sign complying with the section was displayed on the land on 15 June 2012. The site is part of an open paddock, so the western boundary is not marked in any way.

82. The sign was subsequently reported not to be visible and an officer of ACTPLA drove to the site and found it had been taken out of the ground. He re-erected it, but about 10m west of the western boundary of the site. When it was removed finally on 9 July 2012, the sign was found to be lying on the ground and not visible.

83. From the evidence, the learned Master found that the sign was erected on 15 June 2012, was pulled out or knocked over between that date and 22 June 2012, when it was re-erected on the adjoining land (but for which there were no visible boundaries). The sign remained erected until the weekend of 7 and 8 July 2012 when it was again pulled out or knocked over.

84. The learned Master found that the proper reading of s 155(2) and (3) of the PD Act was that, if the sign was “moved, altered, defaced, covered or had access to it prevented”, there was no obligation to put up a new sign. In addition, s 155(8) was central to his decision for that subsection made it clear that a failure to comply with the obligations to notify the development application publicly did not affect the validity of the development approval.

Contentions

85. The applicant first submitted that the obligation for the erection of a notice on the land was mandatory. It was submitted that public notification was “essential for it is the only change that people of Canberra get to know this is what is being proposed”. It relied on what Stephen J, with whom the other members of the Court agreed, had said in Scurr v Brisbane City Council (1973) 133 CLR 242 at 255-8.

86. His Honour there referred to the well-known distinction between requirements that are mandatory and those that are directory. His Honour referred, with approval, to the comments of Gillard J about that distinction in SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229. In that case Gillard J said at 237:

In order to decide whether legislative provisions are mandatory or directory it would appear that there are certain guides to indicate, but there is no conclusive test to decide into which category legislation may fall. The scope and object of the statute, it is said in the cases, are of primary and possibly of vital importance. Secondly, provisions creating public duties and those conferring private rights or granting powers must be distinguished. The former generally are regarded as directory, whereas the latter are generally accepted as mandatory, particularly where conditions are attached to the exercise of the duty or the power, as the case may be. Thirdly, in the absence of an express provision, the intention of the legislature has to be ascertained by weighing the consequences of holding a statute to be directory or imperative. "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done": per Privy Council in Montreal Street Railway Co. v Normandin [1917] AC 170, at p. 175.

87. While Stephen J held that public notification was mandatory in the case before him, the legislative provisions were different. In particular, there was no provision similar or equivalent to s 155(8) of the PD Act.

88. Indeed, if the force of that provision is taken into account, the provision can only, at best, be directory. Stephen J did say at 256, that:

It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v Lyme Regis Corporation [1962] 1 QB 718 provides a modern instance of this.

89. In this case, it seems to me that there has been substantial compliance. In the first place, the finding of the learned Master, and which Mr King did not, in the end, challenge, was that the sign was initially erected on the land. When it was re-erected, it was in an area of an undivided paddock where the boundary was not ascertainable by a passer-by without surveying or satellite assistance so that it was clearly in the general vicinity of the subject land and not in a position to mislead a member of the public as to the likely planning considerations relevant to whether to object or not.

90. Mr King rejected the construction that this was substantial compliance. He submitted that the replacement of the sign on the wrong site resulted in non-compliance with the PD Act properly construed. Mr King submitted that the learned Master had erred in his construction of the Act in coming to this conclusion. I am not at all convinced that his Honour, although construing the Act to hold that what happened did comply with s 155, relied on this construction to make the final judgment made. His Honour clearly relied on s 155(8) for his decision. Thus, any error in construction of s 155(1), (2) or (3) was not operative and provides no justification for an appeal.

91. It has to be noted that, more recently, the High Court has criticised the mandatory/directory distinction in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-91; [91]-[93]. The test is not so much to determine whether a provision is mandatory or directory – that is the end of the inquiry – the question is to determine the legislative intent as to whether any non-compliance results in invalidity. This will vary according to the provision. See Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 at 580; [108].

92. Be all of that as it may, the provisions of s 155(8) of the PD Act made all of this irrelevant, for it validated a development approval where there had not been compliance with the public notification provisions.

93. Mr King’s answer to this was that the failure to notify in this case was a fundamental breach of the duty and that the exemption provision did not apply. He relied on authority from the law of contract where, in Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd (1966) 115 CLR 353, the High Court held that where there is a substantial departure from the obligations of a contract, the party in breach may not rely on the exemption clause to avoid liability.

94. The principle is not as wide-ranging as this may seem to suggest, as, indeed, Windeyer J held in that case, at 375-6, though in dissent as to the outcome.

95. The principle has been developed in the unanimous High Court decision in Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510, which not only approved the approach of Windeyer J but adopted what Walsh J, with whom Barwick CJ and Kitto J agreed, had said in H & E Van Der Sterren v Cibernetics (Holdings) Pty Ltd (1970) 44 ALJR 157 at 158, namely:

The terms of exception clauses must sometimes be read down if they cannot be applied literally without creating an absurdity or defeating the main object of the contract . ... But such a modification by implication of the language which the parties have used in an exception clause is not to be made unless it is necessary to give effect to what the parties must be understood to have intended.

96. The absurdity on which Mr King relied was that a notice could be erected and in a few seconds removed. A plain reading of s 155(8) of the PD Act would validate a development application in those circumstances.

97. Given, he submitted, the essentiality of public notification this could not be the meaning of the sub-section.

98. On the other hand, he could give no other coherent meaning to the sub-section. He submitted that it could only apply when the Authority displayed the notice on the correct site for the whole of the notification period. That, however, would result in the provision having no work to do. It would also be quite inconsistent with the rest of the section which contemplated that the sign could be moved, altered, damaged, defaced or covered in most of which cases it would not be displayed completely or possibly at all.

99. More significantly, however, Mr King could provide no support for his assertion that the principle of contract applied to statutory construction. I have no confidence that it does apply. Even if it does, however, it would have validated what the Authority did, for there was substantial compliance and the absurdity which Mr King posited did not apply. Thus, the application of the High Court’s construction technique would have resulted in s 155(8) of the PD Act applying here.

100. In any event, I see no reason, in principle, why I should not give s 155(8) its full meaning. That must be the clearest expression of the legislative intent, as required by Project Blue Sky Inc v Australian Broadcasting Authority. To do this means there is no substance in the applicant’s purported challenge.

101. The final argument advanced was that the Authority had not erected the sign as required because a subcontractor had done so. When I pointed out the apparent absurdity of that proposition, Mr King declined to argue it and moved on.

102. I do not see any arguable basis for finding that this appeal ground has any prospects of success.

(b) Public Notification – Public Register

Facts

103. Section 27 of the PD Act requires the Authority to keep a public register in a form the Authority considers appropriate and which contains, under s 28, specified details of certain development applications. Section 29 requires the Authority to ensure that the register and associated documents are available for public inspection during business hours.

104. The evidence was that the register is kept electronically so that each development application is assigned an electronic file in which all the relevant documents concerning that application are stored. The software generates a summary of the information stored and it is that summary which is regarded as the public register.

105. Members of the public are able to view the public register by attending one of the two ACTPLA shopfronts in Dickson or Mitchell. The member of the public tells one of the counter staff that he or she wishes to view the public register in respect of a particular development application and the counter staff member will call up the relevant part of the register on a computer screen and the member of the public can then view it.

106. The public register, as so kept, did not fully comply with the statutory requirements so far as the CMCI development application was concerned. It did not show CMCI as the applicant, despite a requirement to include the applicant’s name (s 28(1)(a)(ii) of the PD Act).

107. In addition, it showed the description of the development copied from that provided in the development application, whereas s 28(1)(a)(iv) required the summary to be that of the Authority. Section 28(1)(a)(v) required the register to record whether the application had been, or is being, publicly notified, but the reference in the register was simply to the date of public notification. Finally, associated documents (as defined in s 30) are to be available for public inspection but are not to be part of the public register (s 28(3)(a)).

The decision of the learned Master

108. The learned Master dealt with each of these issues. His Honour accepted that there was a breach of the obligations in the failure to have the name of CMCI on the register but rejected the other complaints.

109. His Honour then held that the failure to include the name of CMCI was of such a nature that, as a matter of discretion, in the absence of any evidence of detriment to anybody arising out of the non-compliance, prerogative relief or other relief under the Judicial Review Act legislation should be declined. Contentions

110. The applicant only addressed two of these issues, namely whether what was provided was a public register and the consequences of the failure to include CMCI in the name of the applicant.

111. As to the first, the learned Master made the following findings:

112. Frederick Arugay, the assistant manager of the Customer Services Section at ACTPLA gave evidence which explained how documents relating to a development application were managed by the Authority and hence how the obligations in ss 27-30 of the PD Act relating to the public register and associated documents were met. Mr Arugay explained that there were two software programs of particular relevance to the development application process and the storage of documents within the Authority. The development application process is handled by a program known as “e-development”. This enables development applications to be made and processed electronically. It is the customer interface for lodging and tracking development applications and is also used to allocate work in relation to a particular development application to officers of ACTPLA. ACTPLA operates an electronic document management system rather than a paper based filing system. The document management system is supported by a computer program called “Objective”. Each development application is assigned a file number in Objective. All documents and information related to the development application are stored within the file in a series of folders and subfolders. Documents will be added to that file during the course of the processing of the development application. 67. The e-development program generates a summary of the information recorded in respect of a DA. It is that summary which the Authority regards as the public register for the DA. A copy of the public register in relation to the present application was pages 227-229 of the exhibit to Mr Arugay’s affidavit. 68. Members of the public are able to view the public register by attending one of the two ACTPLA shopfronts in Dickson or Mitchell. If a member of the public tells one of the counter staff at the shopfront that he or she wishes to view the public register in respect of a particular DA that staff member will call up the relevant part of the public register on a computer screen using e-development and that register can be viewed by the member of the public. 69. Similarly, associated documents are made available in the same way that the public register is made available, namely, if a member of the public attends one of the shopfronts and asks to view an associated document the document is called up by the shopfront counter staff on Objective and can be viewed by the member of the public on screen. For a fee, shopfront staff will print them or load them onto a CD for the member of the public to take away.

The Master found, at [71], that mandated information was difficult for the public to access, and required staff assistance, and that information set out in section 28 could be extracted if sought by a diligent objector trawling through the whole of the ACTPLA software system [and collating the section 28 information from the DA entered into ACTPLA’s working software called e-development].

113. That, however, is not what the learned Master found at all. The relevant paragraph was as follows:

114. The obligation in s 29 is to ensure that during business hours the public register and associated documents are available for public inspection. The fact that it might be necessary to gain some assistance from a staff member to access them or that the description of the documents on an index might require some interpretation are matters which apply equally whether or not the documents are stored in electronic or paper form. While the terms of the index might not be immediately obvious to a lay member of the public, that fact alone does not mean that s 29 is not being complied with. There is no reason to suspect that sensible explanations of the different categories of document are not available from the Customer Services staff and if they were not then a member of the public would have a statutory entitlement to look laboriously through every document one by one just as if they had been unhelpfully dumped with a paper file to look through.

115. There is very little jurisprudence about what is a register, much less a public register. The Macquarie Dictionary defines a register as, relevantly:

116. a book in which entries of acts, occurrences, names, or the like are made for record. 2. any list of such entries; a record of acts, occurrences, etc ... 6. A mechanical device by which certain data are automatically recorded, as a cash register.

117. It seems to me that what the learned Master described comfortably falls within these definitions (assuming that, in the “computer age”, one can give a wide understanding, by analogy, of “book”).

118. Downes J held in Re Hesster Pty Ltd v Australian Communications and Media Authority [2006] AATA 1085 at [27], that “[t]he essence of a public register is to facilitate public access to information relating to its subject”. Senior Member Penglis, however, pointed out in Re Daws and Australian Securities and Investments Commission (Unreported, Administrative Appeals Tribunal, S Penglis, Senior Member, W 2005/008, 5 April 2006), that some registers are “not as easily searchable” as others but are still public registers.

119. Mr King, in oral argument, suggested that what was offered was not within what was required, submitting:

Our case is it’s not good enough to treat the public as mushrooms. It’s not good enough to say, ‘Well, you can find out if you go in and trawl through the documents,’ or if you really are able to persuade an officer to go to his work desk and produce and extract from the eSystem the information which is required to be there, therefore you have a register.

118. I am not satisfied that this accurately represents what the learned Master found. It is also not in accordance with the evidence of Mr Frederick Arugay, Assistant Manager for the Customer Services Section of ACTPLA which was before the learned Master. That description by Mr King makes no reference to counter staff, which is how one accesses information from other public registers, such as the Land Titles Register or the Registers maintained by the Australian Securities and Investments Commission.

119. These registers are also ones where the public may be or are required to “trawl through” the documents, which seems to me likely to be the case with many registers, for that is what they contain, many documents. I see no relevant restriction on public access that renders what the Authority maintains as a public register from being just that.

120. I am not satisfied that there is an arguable case that the learned Master was wrong to accept that what his Honour described was a public register.

121. As to the absence of the relevant information, the position needs a slight explanation.

122. Section 28(1)(a)(ii) of the PD Act requires the applicant’s name to appear on the public register. The name that appeared here was the person who submitted it on behalf of CMCI. That person is ordinarily the applicant. In this case, it was CMCI’s agent.

123. Section 139(2)(b)(i) and (3) have the effect that, if the lessee of the land on which the development the subject of the application is to be conducted signs the application, then the lessee is taken to be the applicant.

124. The learned Master held that the construction of the PD Act meant that there could be more than one applicant. In that case, both should apparently appear on the register. The name of CMCI did not appear as applicant.

125. The appearance of the name of the lessee can be important, for a potential objector may wish to investigate whether the applicant is financially sound so that, for example, a half-built development does not come to a halt because the developer runs out of money. That could have undesirable consequences.

Consideration

126. There are three matters to raise about these contentions. In the first place, the lessee of land can easily be discovered by a Land Titles search. Though that will cause inconvenience, it means that the information can be found with relative ease, reducing the negative consequences of the omission.

127. In addition, the Statement against Relevant Criteria, being a document which accompanied the development application, as required by s 139(2)(d) of the PD Act, showed CMCI as the lessee and, indeed, as the “client” of the person lodging the development application and which was to engage in the development, if approved. This document is an “associated document” under s 30 of the PD Act and, therefore, required to be made publicly available.

128. To strengthen this, I note the finding of the learned Master that there was no detriment to anybody arising out of the non-compliance.

129. Secondly, I am not satisfied that the applicant has shown that a failure such as this was intended by the legislature to result in the invalidity of a development approval. The consequences of so holding would be serious. For example, if no-one accessed the public register for a particular development application where there was a similar omission and the application was approved and the development built, the absence of the information would, on Mr King’s argument, invalidate the approval. That may not be discovered for years, if ever. If it was discovered, say, when the development was half-built, the requirement to cease work, and possibly to remove what had already been constructed, would have major consequences for what is an administrative error for which the applicant for development approved was not responsible.

130. Thirdly, the learned Master made it clear that he would, in the exercise of his discretion not to grant relief. A discretionary decision can only be upset on appeal on grounds of the kind identified in House v The King (1936) 55 CLR 499. The applicant identified no such grounds that would justify interference with the decision of his Honour.

(c) Provision of further information

Facts

131. Section 141 of the PD Act permits the Authority to obtain further advice from an applicant for development approval and, under s 142, the failure to provide such further information may lead to refusal of the application.

132. On 12 July 2012, the Authority sought further information, which was provided on 31 July 2012 which, the covering email, expressed was, it was hoped, a full response to the issues raised.

133. There was some further difficulties with the Authority’s computer system and the information was not accompanied by the necessary prescribed form. CMCI’s agent then forwarded the form but not with the information that had earlier been sent.

134. The learned Master found that there had been non-compliance with s 141 of the PD Act. He held, however, that the Authority was entitled to allow receipt of further information outside the formal process of s 141 and that the applicant’s challenge failed.

Contentions

135. The applicant challenged the receipt of this further information and, it appears, reliance by the Authority on it for making its decision to approve the development application.

136. The failure to use the procedure under ss 141 and 142 of the PD Act meant, the applicant submitted, that the agent for CMCI did not have to make an oath or affirmation that the information was true and complete and that the information did not become “associated documents” and, therefore, publicly available.

137. This, the applicant argued, undermined the scheme of the PD Act which requires transparency and public access to relevant documents.

Consideration

138. It seems clear from the findings of the learned Master that both the Authority and the agent for CMCI thought that they were proceeding under s 141 of the PD Act. The consequences of that is that the information provided would have been made available to the public on the Authority’s computer system as an associated document. I could not find that confirmed. If so, then transparency would have been achieved, though not mandated.

139. The question of whether the Authority can obtain information outside the formal process of s 141 of the PD Act does not seem a difficult one. While there will be occasions when the Authority will require formal advice under these provisions and with the sanction of refusal of the development application for failure to supply the information, I see nothing in the PD Act which makes transparency an overarching obligation or object; it is not to be seen in s 6, which sets out the objects of the Act. See also what I say below (at [210]-[223].

140. While the provision of opportunity for community consultation is a function of the Authority under s 12 of the PD Act, that is provided by the public notification and public objection and submission process. It is relevant that, at the time this further information was obtained, the time limited for public consultation had expired.

141. The applicant’s challenge was that the Authority was not entitled to obtain information from a person submitting a development application other than in accordance with s 141 of the PD Act. This is a bold submission.

142. The Authority is a body corporate with the powers of such a body. I see no reason in principle, why it could not seek any information it needed for its task however it chose. Of course, the person from whom the information is being sought could decline to provide it and the Authority may not, as a result, be able to refuse the application because of the non-provision of the information. Indeed, the Authority may expose itself to challenge were it to do so.

143. Further, where such information is sought under s 141 of the PD Act, the response has to be in writing and the period within which the Authority has to decide an application is then extended under ss 166 and 167.

144. These are powerful reasons for holding that s 141 of the PD Act is a special power and is not the only power that the Authority has to seek information.

145. While the so-called “informal advice” will not ordinarily be published on the public register, the Authority could choose to do so under s 28(2) of the PD Act.

146. The applicant made much of the need for transparency and openness in the planning process and, in general terms, that may be desirable, though it is not an express object of the Act. It is relevant that there are also, in ss 411 and 412 of the Act, some specific exclusions to public access, though they are quite limited. The Authority is also subject to the Freedom of Information Act 1989 (ACT).

(d) Entity advice

Facts

148. For consideration of some development applications, the PD Act requires the Authority to refer the application to other entities prescribed by regulation: s 148. Sections 149 to 151 regulate the response of the entity and the obligation of the Authority when receiving the advice. It is quite a comprehensive regime.

149. Two entities were prescribed for the CMCI development application; they were the conservator of flora and fauna and the custodians of the land. The site did not, however, meet the preconditions for referral to the conservator. As to the other, Roads ACT was the custodian of the land; it consented to the development application.

150. The Authority, however, also referred the application to four other entities. It appears that, in error, it thought they were mandatory referrals. There was, however, no material before the learned Master to suggest that this was so.

151. The applicant submitted that these referrals were made in error and without statutory authority, that this process was outside the relevant statutory procedure and that it was not open to the Authority to take the advice of these entities into account.

152. This, it was submitted, meant that procedures required by law were not followed and that, by having regard to the advice of these entities, the Authority failed to take into account relevant considerations or took into account irrelevant considerations.

The decision of the learned Master

153. The learned Master rejected what he saw as the premise of the applicant’s submissions, that the Authority could only inform itself for the purposes of considering a development application through the statutory processes of entity referral.

154. His Honour accepted that the process of entity referral was important, for it was the means whereby the entity could influence planning outcomes because the Authority could not act inconsistently with it except where certain preconditions are met. It was also relevant to a person submitting a development application because an entity could not, if approval is given to a development application, act in relation to that development inconsistently with the advice it had given.

155. His Honour, however, found that there was no express prohibition in the PD Act preventing the Authority from seeking other advice from an entity, where these restrictions would not apply. Further, his Honour held that this would mean that the Authority would be deprived of technical advice on matters not within its expertise, even though other entities would have that expertise. His Honour held that such an outcome would “be an unusual one”.

Consideration

156. It seems to me that the approach of the learned Master is correct.

157. To deprive the Authority of relevant advice simply because the regulation has not prescribed an entity seems to me to go beyond the bounds of good planning practice. To take an example, a prescribed entity under s 26 of the Planning and Development Regulation 2008 (ACT) is the administrative unit responsible for health policy. That is, however, only prescribed for a development application on the impact track.

158. In this case, the development included a “deceased wash room”. Clearly, one would not expect the Authority to have expertise in the ramifications of such an inclusion. Clearly, also, ACT Health (the administrative unit responsible for health policy) would have that expertise.

159. To deprive the Authority of access to such advice because ACT Health was not an entity from which the Authority was mandated to seek advice under the PD Act would seem to me to be absurd. It elevates transparency above good planning process and I see no legislative intention to do that in the PD Act.

160. Mr King submitted that the balance was between “expediency” and “transparency”. Given other means of access, such as through the Freedom of Information Act, I do not see that transparency is jettisoned; it is, of course, reduced or made somewhat more difficult, but still recognised. I reject that the approach of the learned Master was one to prefer expediency. It seems to me that it is good practice and common sense, backed by statutory construction.

161. Of course, the consequences of seeking advice in this way is that the Authority is not bound to act consistently with the advice and ACT Health is not prevented from later acting inconsistently with the advice. Those are, however, the consequences of the legislative regime.

162. This ground does not justify the grant of leave to appeal as I do not consider that it has reasonable prospects of success.

(e) Compliance with Code Considerations

Facts

163. Section 139 of the PD Act sets out the requirements of a development application. Section 139(2)(d) requires that the application: be accompanied by information or documents addressing the relevant rules.

164. The relevant rules and relevant criteria are set out in the various codes under the Territory Plan. I have discussed these codes in Forman v ACT Planning and Land Authority (2013) 279 FLR 54 at 59; [28]-[29].

165. A document entitled “Statement against Relevant Criteria” was attached to or accompanied the development application.

166. The subject site fell within the Gungahlin Town Precinct. There is a Gungahlin Town Centre Precinct Code (the Precinct Code). There was also a Community Facility Zone Development Code (the CFZ Code) which applied to the proposed development. The Statement which accompanied the development application did not address the Precinct Code. That meant, the learned Master found, that the Statement did not “address all of the relevant rules or criteria”, though his Honour found “error or oversight”.

167. His Honour found, however, that this did not result in non-compliance with s 139 of the PD Act. His Honour continued at [191]:

It is enough that there is information or documents accompanying the DA that reasonably permits an assessment of the proposal against those relevant rules and criteria by the Authority. That interpretation is consistent with the contrast between the general provisions of s 139(2)(c), (d) and (f) and those other paragraphs which have specific prescriptive requirements as to what must be included. In the present case the documentation that was provided as part of the DA, in particular the plans describing the nature of the development proposed, were in fact sufficient to permit an assessment of the proposal against the terms of the Precinct Code.

168. As to the CFZ Code, the development application did not attach a traffic study to which it referred in the section of the application addressing a particular criterion of the Code and there asserted that it was attached.

169. As far as I understand it, the challenge was that the relevant criteria in the Code were criterion 7 of the Precinct Code, which was not addressed and criterion 14 of the CFZ Code which was inadequately addressed.

170. Criterion 7 was in the following terms:

Development complies with all of the following: a) contributes to the desired planning outcomes of the town centre as described in the introduction of this document b) corner buildings contain focal points providing architectural interest and variety to the building design c) entrances to common lobbies for residential use provide strong visual connection to the street and ensure a high level of surveillance d) buildings incorporate sun shading to reduce summer sun into the building interior e) car parking structures are designed to integrate with the built form of adjoining development.

171. The learned Master pointed out that the proposed development was not a corner building so (b) was irrelevant, was not a residential building so (c) was irrelevant and there was no adjoining development so (e) was irrelevant.

172. No evidence was adduced suggesting that there were issues surrounding (a) or (d). As a result, there were no particular issues with respect to criterion 7 that warranted specific mention in the consideration of the development application or any arguable inconsistency.

173. The assessment report, which did not refer to criterion 7, was prefaced, however, by the general comment in considering “Assessment of Compliance with” the relevant Code, as follows:

The comments for the criterion or rule identified in the tables below are provided where it is considered applicable and warranted clarifying why a particular criterion or rule is either met or not met.

174. Ultimately, the assessment found that the proposal was compliant. This, the learned Master found, meant that the Authority had not failed to have regard to Criterion 7 of the Precinct Code, but had found the application compliant with it.

175. As to criterion 14 of the CFZ Code, the Statement addressed this criterion directly and referred to a Traffic Impact Assessment, which was said to be attached. It was not actually attached.

176. The agent of CMCI sought a copy of the Report from the Economic Development Directorate of the ACT Government and was provided with a Report which was submitted to the Authority.

177. The Authority clearly considered that it was inadequate and sought a further report. The agent of CMCI provided one.

178. The applicant made five submissions to the learned Master as to why this process, and the content of the report ultimately provided, meant that the criterion had not been met.

179. The challenges of the applicant were dealt with carefully by his Honour, who found that they did not constitute errors of law or a decision that was so unreasonable that no reasonably person could have made such a decision. A number of the criticisms were of the merits of the decision which, of course, is not amenable to judicial review.

Consideration

180. Mr King was critical of the reasoning of the learned Master, for he submitted that the omnibus reference of the Authority to compliance, even in the context of the general comment that express reference was not necessary but only made where “applicable and warranted”, was inadequate and constituted “handing back the planning decision to ACTPLA”. That is curious, for it is actually the Authority which does have to make the decision.

181. Mr King relied also on a decision of the NSW Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. That decision, however, does not seem helpful to the applicant. The issue there was whether a condition in the legislation which, if fulfilled, required a report to be filed with a development application, was a jurisdictional fact. That issue does not arise here.

182. In the course of the decision, however, Spigelman CJ, with whom Mason P and Meagher JA agreed, referred with approval to what Handley JA had said in Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-9 about the contents of development applications. His Honour accepted that what was required was “substantial compliance”. That seems to me to support the approach taken by the learned Master.

183. To address criteria, which have no relevance, by stating that fact is an approach of merely “ticking boxes” which is not required for substantial compliance.

184. To omit to attach a report inadvertently but where the criterion is addressed is, perhaps, substantively inadequate but not, in my view, a failure of the kind that renders the application a nullity.

185. Indeed, this is re-inforced by reference in s 139(2)(d) to the applicant needing to address “relevant rules”. That has a certain ambiguity. It could mean that, for example, Criterion 7 of the Precinct Code is relevant, for it is a code for the precinct in which the subject land is situated. It could also mean that it is only required to be addressed if the rules apply. Thus, since at least (b), (c) and (e) did not apply they were properly irrelevant and, since there were no relevant issues raised about (a) and (d), they were, also, not relevant. That latter approach is, it seems to me, quite consistent with substantial compliance.

186. The notion of judicial review is one that does not encompass merits review unless there is no evidence or relevant or irrelevant considerations are involved. None of these were at issue and, it seems to me, that negates challenge by the applicant.

187. It seems to me that, in the circumstances, the general finding on compliance with the Precinct Code or the CFZ Code was adequate. I find no arguable error in the approach of the learned Master.

(f) Expert Evidence

Facts

188. Two matters were initially raised under this heading. The first involved traffic and parking. The second involved the room for washing the dead.

189. As to the first, the applicant relied on expert evidence that it provided at the hearing before the learned Master. That, of course, was not before the Authority. It was submitted that the traffic report of the applicant meant that “had [the Authority] approached this matter [i.e. traffic and parking] in the right way and asked the right questions, they would have reached a different result”.

190. Unfortunately, neither in written or oral submissions was Mr King specific about what the relevant evidence was or what “the right question” was. Given that this was, of course, the only way in which to assess whether a relevant consideration was ignored or an irrelevant consideration taken into account, this was fatal to the argument.

191. It is relevant that, of course, the expert evidence on which the applicant relied was not before the Authority. The Authority’s decision could not, therefore, have been successfully challenged on the basis that the material in the expert evidence was not taken into account.

192. Nor could the expert evidence be used to show that the Authority had made a factual error, for this would be merits review, which is not what is encompassed in judicial review of the kind in which the learned Master was engaged.

193. The second matter involved the washroom where the bodies of the dead were prepared in accordance with Muslim ritual and religious practice.

194. The use to which the subject land could be put expressly excluded use as a funeral parlour. Mr King submitted that the expert evidence adduced on behalf of the applicant was, unequivocally, that the proposed use was indeed for a funeral parlour and that the inclusion of this in the development meant that it was a prohibited development, such that the application for development could not in law be approved.

195. The permitted use did include “religious associated use”. Mr King submitted that the use was not an associated use to the primary use of a place of worship. He submitted that the evidence of his experts was to this effect and that the learned Master gave inadequate or no weight to their opinion.

Consideration

196. The learned Master addressed the challenges made to the traffic and parking evidence before the Authority. His Honour found that “the criticisms reflect legitimate differences of opinion between experts” and, as such, “do not demonstrate that the decision of the Authority was manifestly unreasonable or establish another ground for judicial review”.

197. Nothing submitted by Mr King undermined that finding. It was not an error for his Honour to have failed to accept the evidence of the experts called for the applicant as that would, absent unreasonableness, have constituted merits review.

198. The same approach was taken in relation to the Parking and Vehicular Access General Code so far as parking was concerned. Again, nothing submitted by Mr King suggested error in what the learned Master had found.

199. So far as the washroom was concerned, the learned Master addressed that carefully.

200. In the first place, despite the submissions of Mr King that the learned Master failed to accord proper weight to the evidence of the applicant’s expert that the washroom was not an associated religious use, there is no basis for that. What Mr King failed to point out was that a planning expert for the Authority concluded exactly the opposite.

201. Thus, his Honour took the correct approach by not preferring one expert over the other about what was essentially a matter of law.

202. His Honour, first referred to the relevant definitions at [284]:

Place of worship means the use of land for the primary purposes of religious worship and associated activities by a congregation, religious group of members of the publish whether or not the premises are also used for religious instruction, tuition, meetings, training and other community activities. Religious associated use means the use of land for the activities conducted by religious organisations other than for worship or for offices and may include residential accommodation by ministers of religion.

203. His Honour then concluded at [285]-[287]:

204. In my view the submissions of the plaintiff, which focus on whether or not the deceased washroom area constitutes the operation of a funeral parlour, adopt an incorrect starting point. The starting point must be whether or not the deceased washroom area is part of the place of worship or religious associated use which is undoubtedly comprised by the development as a whole. It may be that a particular component of a use of land, if examined separately, could be characterised differently from the overall use of land. However, if a use of land is a subordinate use of land which is not independent from the dominant use of land then as a matter of characterisation it forms part of the dominant use: Foodbarn v Solicitor-General (1975) 32 LGERA 157. 286. In my view the plans of the building in combination with the description of the likely use of the deceased washroom is subordinate to and not an independent use from the use of the mosque as a whole. Therefore it forms part of the place of worship or is part of a religious associated use within the definition of those terms in the Territory Plan and the lease. Specifically, the use of the deceased washroom would be an activity conducted by a religious organisation other than for worship, meeting the requirements of a religious associated use. It is therefore not prohibited by the terms of the lease as it falls within the scope of the expressly permitted uses. 287. Further and in any event, the activities to be carried on at the deceased wash room would not involve “the use of land by an undertaker in the carrying out of that profession” which is how “funeral parlour” is defined in the Plan. There was no evidence to indicate that the area would be used for the conduct of the profession of an undertaker. The mere possibility that an undertaker may be involved in the transport of the deceased to and from the mosque would in no way be sufficient to satisfy the requirements of the definition in the Territory Plan.

205. I find no error in his Honour’s reasoning and none was pointed out by Mr King, save that his Honour did not accept the evidence of the applicant’s expert, which, even if an error, was not a relevant one nor one that would result in the success of an appeal.

(g) Constructions of the Planning and Development Act

Facts

205. In the written submissions in support of the application for leave to appeal, the applicant made extensive submissions about the proper construction of the PD Act. The issue was not discretely addressed in the oral submissions.

206. Nevertheless, some of the issues were addressed in consideration of the other issues. It is appropriate, however, to consider, briefly, the matter raised in this context.

207. The nub of the issue seems to have been encapsulated in the following submission by the applicant:

Wherever the interpretation of the Act depends upon a choice between an interpretation which promotes transparency rather than expediency, discretion and lack of public scrutiny the Master chooses the latter not the former. This is so both with respect to transparency and openness of the planning process itself to the public, and transparency with respect to the contents of the DA in its supporting information and documents described as being essential and mandatory in the Act. His Honour’s decision, in error, opts at every point for a construction of the Act which has the result of an extensive increase in the discretionary power of ACTPLA staff and the absence of scrutiny of and loss of public access in the ACT. (footnote omitted)

208. The applicant, as a third party (that is neither the applicant for development approval or the decision-maker), had a particular interest in access to the decision-making process. That, no doubt, gave it a perspective which it valued and, where that value was impeded or restricted, saw its interests as diminished.

209. That, however, does not justify a construction of the legislation that it does not bear.

Consideration

210. There is no doubt that the PD Act does place a value on public access; it would not have established a public register were that not so. That value, however, cannot be seen as an overriding value to which other values are subservient.

211. This can be seen in the explicit objects of the PD Act, set out in s 6 where transparency, public access and openness are not mentioned. That section is as follows: The object of this Act is to provide a planning and land system that contributes to the orderly and sustainable development of the ACT – (a) Consistent with the social, environmental and economic aspirations of the people of the ACT: and (b) In accordance with sound financial principles.

212. Insofar as the objects are in a general form and, arguably, susceptible to some interpretation (“social ... aspirations” might arguably include transparency), I turn to the Explanatory Statement for the Bill which became the PD Act. There, the Minister for Planning set out expressly the objectives of the legislation as follows:

Objective of the legislation – a simpler, faster and more effective planning system The Bill is intended to make the Australian Capital Territory’s (ACT’s) planning system simpler, faster and more effective. The Bill will replace the existing Land (Planning and Environment) Act 1991 (the Land Act) and the Planning and Land Act 2002. The objective of the Bill is to provide a planning and land system that contributes to the orderly and sustainable development of the ACT in a way that is consistent with the social, environmental and economic aspirations of the people of the ACT, and which is in accordance with sound financial principles. The most significant change under the Bill is simplified development assessment through a track system that matches the level of assessment and process to the impact of the proposed development. As well as being simpler, more consistent, and easier to use, this system is a move towards national leading practice in development assessment.

213. Any reference to transparency or public access, even as an interest that is to be balanced with the other express objectives, is absent.

214. The Explanatory Statement then addresses the “Reason for the Bill” and I refer to the following:

The Government launched the Planning System Reform Project in December 2004 with the aim: to create a contemporary planning and land administration system, processes and practices that will provide greater certainty, clarity and consistency and which is flexible, timely, less repetitious and administratively manageable. The Government wishes to reform the planning system to save homeowners and industry time and money and give them greater certainty about what they need to do if they require development approval. People using the ACT’s current planning system have found some aspects slow, cumbersome, inconsistent and confusing. Simple planning proposals often require the same long application and approval processes and timeframes as complex proposals. Low impact proposals often attract the same level of environmental impact assessment as higher impact proposals. The new system will have less red tape and more appropriate levels of assessment, notification and appeal rights. This will make it easier to understand what does and does not need approval, what is required for a development application and how it will be assessed. A central part of the Bill is simplified development assessment through a track system that matches the level of assessment and process to the impact of the proposed development.

215. Again, the claimed overriding interest of transparency or public access is absent.

216. Turning to the Second Reading Speech (Hansard of the ACT Legislative Assembly, 14 December 2006, pp 4137-45), the same situation is to be found. Thus, the Minister referred to the following expectations as part of his overarching reform agenda:

 the management of the leasehold estate as part of the territory's planning and development regulation system;  streamlining the development assessment system for all activities;  urgent changes to minimise planning system impediments in Civic, our town centres and along transport corridors, including during the pre-application phase;  maintaining and promoting a single integrated development assessment path;  elevating the status and role of strategic planning and policy instruments in guiding decision making and engaging the community early in the planning process; and  providing appropriate safeguards for members of the community most directly affected by policy change and development applications.

217. While the last dot point could be interpreted as including aspects of public access (though less obviously transparency), it is, in terms, limited and constrained by the qualifier “appropriate”.

218. The Minister continued, setting out the main reforms as follows:

 increasing the number of developments that do not need development approval, such as new single residences in greenfield sites and small structures, including garages, sheds and pergolas;  better focused consultation, public notification and third-party appeal processes;  introducing clear assessment tracks for different types of development;  closer integration of leasing and development assessment so that the planning system operates more efficiently;  simplifying and clarifying land uses as set out in the territory plan and consolidating codes that regulate development;  retaining concessional leases and making the process more accountable; and  introducing a transparent environmental impact assessment process, targeted at developments with significant environmental impact.

219. This makes it clear that public notification was an important value and was not to be overlooked. In my view, it is to be read in the context of the qualifier “better focussed” as well.

220. In this list is the only use of the word “transparent” or “transparency” in the document, and then in a quite limited context of the environmental impact assessment process for some developments. From this, one can accept that the issue of transparency was not unknown but was targeted and not an overriding value.

221. The Minister then set out the intended aims of the reform process as follows, namely that it:

 has a clear purpose and intent;  ensures timeliness in decision making;  promotes greater certainty and consistency while maintaining sufficient flexibility to encourage innovation and high quality design;  contributes to the achievement of sustainable outcomes;  recognises the opportunity for planning to contribute to social equity;  provides appropriate opportunities for community engagement in the planning process;  supports a properly functioning property market;  increases operational efficiency, integrates development and building assessment processes and reduces administrative complexity and repetition; and  enhances the administration of the leasehold system so that it continues to contribute to the orderly development of the territory.

222. Again, it recognises the need for community engagement which can, of course, only be effective if there is a reasonable level of public information and access into the process, but, again, the provision is constrained by the qualifier “appropriate”.

223. I do not accept that there is an overriding objective of transparency in the legislation. Public access to information is a value enshrined in the PD Act and should be given proper weight. It cannot, however, replace the words of the statute or the law that applies.

224. I reject, also, the suggestion that the learned Master preferred “expediency, discretion and lack of public scrutiny” in his Honour’s findings. The words “expedient” and “expediency” do not appear in his Honour’s reasons.

225. This arises, according to the applicant, particularly in relation to the use of procedures under ss 141 and 149 of the PD Act. Both those powers are, to an extent, coercive powers and, where such coercion is not required, it is not a matter of expediency but of the proper construction of the legislation, as to whether the other values expressed at least in the Explanatory Statement and the Second Reading Speech, might support the construction for which the applicant contends, to restrict reception and use of information otherwise obtained. This would properly be included in a requirement for a process that is “simpler, faster” and “flexible” and “administratively manageable”, as well as requiring “operational efficiency” and “reduced administrative complexity and repetition”. These matters support the entitlement of the Authority to seek information outside the formal process under s 141 of the PD Act and entity advice, even if not mandated.

226. I am satisfied that the learned Master did not misconstrue the PD Act by omitting what the applicant described, without evidence or law, as a “fundamental issue as to the policy and objects of the PD Acts [sic]”.

(h) Standing

227. This was a fundamental issue which was resolved against the applicant.

Facts

228. These proceedings were commenced on 9 August 2012 by what was an unincorporated association. It became incorporated on 13 August 2012, that is after the Originating Application had been filed and issued. It was not incorporated at the time of the First Decision and, at that time, had no objects.

229. On 21 August 2012, the Originating Application was amended as a result of the incorporation, but to substitute the applicant as plaintiff.

230. The applicant had, at the date of the application for incorporation, five members. Its membership grew so that, by 1 March 2014, two days prior to the hearing before the learned Master, it had eighteen members. It was said that, by the time a decision was taken to appeal on 28 July 2014, it had twenty-three members.

231. The members were, apparently, not all from the Gungahlin region. Mr Ross lived in Higgins and, on 1 March 2014, he had informed a meeting of the applicant that the applicant “urgently need[s] more members, especially in the Gungahlin region”.

232. Mr Ross himself expressed concerns which the learned Master accurately described as showing Mr Ross’s “generalised hostility to the Muslim religion and concern about what he saw as its spread”.

233. The Authority filed a Notice of Objection to Completency to the Originating Application. This, it was said, was based on the fact that the Originating Application was issued in the name of an unincorporated association. There can be no doubt that an unincorporated association cannot sue or be sued unless special rules so provide. See Trustees of the Roman Catholic Church v Ellis (2007) 70 NSWLR 565 at 577; [49]. See also r 30 of the Court Procedures Rules. It may be possible to sue in a representative capacity, even without an order (Tydeman v Roberts [1985] 2 Qd R 144 at 148-9), but this is not what was done here.

234. The Authority ultimately consented to the applicant being substituted as the plaintiff. The application for security for costs was then heard and an order for security made.

235. The applicant had sought to join Mr Ross as a plaintiff. This was opposed on various bases, namely that it was too late to do so, since the relevant limitation period had expired and that the joinder was sought merely to introduce an individual plaintiff so as to circumvent the principles about security for costs payable by an impecunious corporation, which do not apply to impecunious natural persons, as, for example, in Cowell v Taylor (1885) 31 Ch D 34 at 38, though it needs to be noted that the presence of one plaintiff against whom security will not be ordered will not necessarily prevent such an order being made: Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 at 625.

236. At the hearing of these applications, the issue of standing was mentioned and three matters were raised as to the standing that Mr Ross had: he was a taxpayer and so could challenge what was said to be a breach of s 116 of the Constitution, he had an ongoing interest in environmental issues as to traffic, parking and amenities and that he lived close to the proposed development.

The learned Master’s decision

238. The learned Master held that the applicant did not have standing to challenge the decision of the Authority for the following reasons:

(a) As far as the First Decision was concerned, it did not exist at the date of the making of the First Decision and there was, in the Associations Incorporation Act no provision deeming the activities (or interests) of the pre-existing unincorporated association somehow to vest in the incorporated association as, under s 23, there is with property.

(b) The conduct of the proceedings did not prevent the Authority from raising the question of standing in the proceedings, despite the earlier decision of the court.

(c) As the applicant did not exist until after the proceedings commenced, it had no particular status as a representative body for the purpose of the issue, it had not been recognised by any relevant government or other agency as having such a role, it had not been active or involved in the issue such as by making submissions, conducting discussions or the like.

Thus, it was not a body that would ordinarily be recognised as having standing under the approach outlined in North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 at 512-3.

(d) It had itself no spiritual or religious beliefs of the kind recognised in cases such as Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 or Ogle v Strickland (1987) 13 FCR 306 and there was no evidence that the applicant relevantly represented appropriate interests of its members: see M Aronson, B Dyer and M Groves, th Judicial Review of Administrative Action (Thomas Reuters: Sydney, 2009) 4 ed at 767-70; [11.100].

(e) The applicant was not an “eligible entity” within the meaning of the Judicial Review Act.

(f) The applicant could not rely on the deemed material detriment available to certain organisations in certain circumstances under s 419 of the PD Act.

(g) The allegations of breach of s 116 of the Constitution did not give the applicant standing.

Contentions

239. The applicant did not really challenge the reasons advanced by the learned Master for denying the applicant standing. That is hardly surprising since each of the reasons is firmly grounded in law and in the evidence which was before the learned Master. None of them seem to me to be arguably likely to be set aside on appeal.

240. The applicant did, however, challenge one aspect of the learned Master’s reasons for holding that the applicant did not have standing. This relied on s 419 of the PD Act which provides:

419 Meaning of material detriment (1) In this Act: material detriment, in relation to land—an entity suffers material detriment in relation to land because of a decision if— (a) the decision has, or is likely to have, an adverse impact on the entity’s use or enjoyment of the land; or (b) for an entity that has objects or purposes—the decision relates to a matter included in the entity’s objects or purposes. (2) However, an entity does not suffer material detriment in relation to land because of a decision only because the decision increases, or is likely to increase, direct or indirect competition with a business of the entity or an associate of the entity.

241. This, it was submitted, meant that the legislature had recognised the interests of a community group, such as the applicant, in the planning process. That may be accepted, but it has limited effect.

242. The definition is limited to the PD Act. In particular, it does not apply to the Judicial Review Act. There would seem to be good reasons for this.

243. Certain decisions set out in Sch 1 to the PD Act are subject to review by the ACT Civil and Administrative Tribunal (the ACAT) and by an eligible entity which meets the stated criteria. In relation to certain decisions, an entity which has, by the approval, suffered material detriment (as defined) is an eligible entity for this purpose. The decisions challengeable in the ACAT by such an eligible entity include the approval of a development application (s 162) or a reconsideration of such an application (s 193).

244. It was submitted that “[i]t would be an odd result if [the applicant] had standing because of “material detriment” before the ACAT but not before the ordinary courts.” I reject that contention.

245. The ACAT has a number of differences from the ordinary courts which are relevant: it may engage in merits review, some of its members have expertise in areas such as planning, it is not limited to applying the rules of evidence, it permits representation of a party by a non-lawyer, access is intended to be simple and inexpensive, there is a regime for costs quite different from that applicable to a court and appeals from the ACAT to the courts in matters under the PD Act are only available on a matter of law.

246. These differences justify a different approach to litigation about planning matters. There is, as the learned Master found, no link between s 419 of the PD Act and the definition of a person aggrieved under the Judicial Review Act.

247. Section 419 of the PD Act did not give the applicant standing in the Supreme Court.

248. The applicant’s challenge also was to submit that the course of the proceedings meant that the standing of the applicant was not in issue.

249. This argument seemed to have two aspects. The first was that the decision of Sidis AJ in Concerned Citizens (No 1) had decided the issue in the applicant’s favour, but if not, then the second was that the Authority was estopped from denying that the applicant had standing.

250. The first ground relied on what Sidis AJ had held when considering the question of security for costs. Her Honour considered that, at best, the applicant was not a body of members “whose sole interest was the protection of the environment” but that it was a body which was, in the words of Young JA in Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157 at 164; [33], a “group whose real aim was to preserve the existing amenities and are happy for the proposed development to proceed in another area”. I am not certain that the applicant would agree with that characterisation. This was, in any event, not a finding of standing but, at best, a finding that there was no reason for declining to make an order for security for costs.

Consideration

254. None of the applicant’s contentions can withstand proper scrutiny. I accept what the High Court said in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 360, that:

[o]nce an issue is determined at the interlocutory stage, and the trial continues, the primary judge’s hand is tied in respect of all matters of fact and law involved in that determination.

255. It may also be accepted that, in an appropriate case, the conduct of a party during interlocutory proceedings may bind that party in subsequent conduct of the proceedings. See Commonwealth v Verwayen (1990) 170 CLR 394.

256. That, however, is not what happened here or what the Authority had done. Before Sidis AJ, it had expressly reserved its position to challenge the standing of the applicant, thus not inducing the applicant to take any step which would prejudice its position upon reliance of any suggestion that the applicant’s standing was not in issue. Her Honour did not decide the question of standing; indeed, she was not asked to do so.

257. While standing may, in an appropriate case, be dealt with as an interlocutory application pre-trial, there are strong statements, including of the High Court, to suggest that this is best done at the trial itself. See, for example, Onus v Alcoa of Australia Ltd at 38 per Gibbs CJ. The Federal Court has taken the same approach: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79; SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 at [30].

258. There was nothing submitted by Mr King to show that this was an inappropriate approach to the question. Perhaps more importantly, Mr King did not identify any prejudice (apart from the costs of proceedings to a hearing which would have been avoided had the standing issue been resolved against the applicant pre-trial) that the applicant had suffered nor how it had been induced to take or not take a step in the proceedings because of what the Authority had said or done.

259. The applicant also submitted that the failure of the Authority to deal with the standing issue was unreasonable. Sidis AJ clearly did not consider it was unreasonable. Indeed, her Honour made it plain that the lack of evidence of Mr Ross’s likely interest in any breach of s 116 of the Constitution hampered her proper consideration of that issue. The applicant adduced no such evidence before her Honour.

260. The applicant referred to the citation, with apparent approval by Allsop P, in Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 at [1] of a statement by Somervell LJ in Greenhalgh v Mallard [1947] 2 All ER 255 at 257 to the following effect: … res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but … it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.

261. Allsop P stated that Lord Wilberforce had, in the Privy Council, approved of the statement, but did not identify the case in which that was done.

262. This, however, does not apply here, for the applicant did not seek to have the issue of the applicant’s standing resolved, the Authority expressly reserved the right to do so later and there were, before Sidis AJ, no facts sufficient to determine the issue.

[i]t is difficult to imagine how the Commonwealth faced with a finding by this Court that the [Act] is invalid, could combine the application of that finding to Mr Pape and disregard it in its application to the remainder of those purportedly entitled under the Act.

269. The decision does not support the case made by the applicant.

270. In any event, there was no evidence to show that there was any likely breach of s 116 of the Constitution, despite Sidis AJ specifically raising that omission in the hearing before her.

271. Since the decision of the learned Master, the High Court has decided on issue of standing under the Judicial Review Act to review a decision made under the PD Act in Argos Pty Ltd v Corbell (2014) 315 ALR 44.

272. That decision provides no assistance to the applicant. What is clear from that decision is that the effect of a decision on a person who seeks to come within the definition of “a person aggrieved” under the Judicial Review Act must be clearly articulated. The decision, then, is as to whether other interests of that person are so affected so as to render the person “a person aggrieved”. For Hayne and Bell JJ at 59; [66], content to that question cannot be given without regard to the subject matter, scope and purpose of the relevant Act, here the PD Act. To Gageler J, at 63; [86], such regard may be had to those considerations, but they cannot exhaust the inquiry. To the contrary, French CJ and Keane J at 54; [41] and 55; [45], reject the proposition that the question of whether a person is “a person aggrieved” cannot be expanded or contracted by reference to the scope and purpose of the enactment under which the decision is made.

273. As Hayne and Bell JJ pointed out at 58; [61]:

the central notion conveyed by the words [“a person whose interests are adversely affected by the decision”] is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (“beyond”) its effect on the public at large. (Footnote omitted)

274. To the same effect, Gageler J adopted at 63; [86], what Brennan J had said in Re McHarlton and Collector of Customs (1977) 18 ALR 154 at 157 that, absent direct effect, “there must be some evidence to show that the interests are in truth affected”. Thus, his Honour cited, with apparent approval, reference in the authorities to identify these interests more precisely, namely:

(a) Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 69 where his Honour at 62; [83] summarised the position that the reasoning adopted in that case by Lockhart J was:

a step in reasoning to the conclusion that the concern of the association with the decision was “only an intellectual, philosophical and emotional concern” of a nature and degree comparable with that which might be held by “an ordinary member of the public” and that the association was not affected by the decision “in any way to an extent greater than the public generally”. (Footnote omitted) (b) United States Tobacco Co v Minister for Consumer Affairs (1998) 20 FCR 520 where his Honour at 63; [85] adopted what he there explained was said, namely:

that “interests” is used in the ADJR Act not as in “common parlance” but as the “broadest of technical terms” which “[have] long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody”. (footnote omitted)

275. It does not seem to me that the applicant has identified an interest that is more than “intellectual, philosophical and emotional” or greater than that of an “intermeddler or busybody” and that the effect on the applicant is not “beyond” that of the public at large.

276. The applicant also referred to Kuczborski v Queensland (2014) 314 ALR 528 where the High Court held that Mr Kuczborski did not have standing to challenge the Vicious Lawless Association Disestablishment Act 2013 (Qld). The applicant referred to a passage, but only quoted part of it. The relevant passage is as follows: [184] The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect ‘the legal situation of persons subject to the jurisdiction of the court’ serves to maintain the ordinary characteristics of judicial power. [185] It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts; but to conclude that the plaintiff's sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law. Any person actually in jeopardy of punishment under these laws will have standing to challenge their validity. [186] In addition, the established requirements as to standing help to ensure that the exercise of judicial power is informed, as fully as possible, by the ‘concrete adverseness which sharpens the presentation of issues’. It may be acknowledged that the rules as to standing will not always achieve that purpose, as will be seen in the discussion of the wide-ranging arguments agitated in this case in relation to the second category of challenged laws. Nevertheless, adherence to the established requirements as to standing is generally apt to improve the quality of judicial decision-making by ensuring that the focus and strength of the arguments advanced by the parties reflect the importance of the prospective outcome for the parties. (footnotes omitted)

277. The underlining does not appear in the judgment; that is the passage quoted by the applicant. As can be seen, the passage, when read as a whole and in context, does not alter nor appear to be intended to alter, the ordinary rules of standing.

278. In any event, the applicant did not identify what the “legal situation” of the applicant was that the exercise of legal power was apt to effect.

279. I do not consider that this reference avails the applicant in its challenge to the decision of the learned Master as to the applicant’s standing.

280. Accordingly, the applicant had, as the learned Master found, no standing. This is sufficient to justify, in itself, a refusal of the leave sought.

Prejudice to Third Parties

281. As noted above (at [22]), the court will also have regard to any prejudicial effect on third parties. Here CMCI is clearly a third party whose interests may be affected.

282. The unchallenged evidence before me was that.

(a) CMCI commenced substantial construction of the Development on 23 June 2014 just before the judgment of the learned Master.

(b) Largely since judgment was given CMCI has up to November 2014 incurred construction costs of about $190,000.

(c) Subject to the validity of its development consent being successfully challenged and adequate funds being raised, CMCI intends to complete the Phase 1 works (at an estimated cost of $1.9 million) and move into the building by about September 2015.

283. This shows significant prejudice that would be suffered by CMCI were leave to be granted to the applicant to appeal despite the expiry of the appeal period. Conclusion

284. Having regard to the lack of standing of the applicant, its lack of reasonable prospects of success in any appeal, the substantial prejudice to CMCI and the absence of a reasonable explanation for delay, I consider that the application for leave to appeal, notwithstanding the expiry of the period within which an appeal may be commenced, should be declined.

285. I will so order.

286. As a result, it is not necessary to determine the Authority’s application for security for costs. I consider that it should be dismissed.

287. Subject to any contrary submissions, I consider that the applicant should pay the costs of its application and that there be no order as to costs of the Authority’s application.

I certify that the preceding two hundred and eighty-seven [287] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 6 November 2015