Concerned Citizens of Canberra v Chief Planning Executive

Concerned Citizens of Canberra v Chief Planning Executive - [2014] ACTSC 165 - ACTSC 2014 case summary — Zoe

[347]

I refer to my previous correspondence in relation to the above development application, in particular my letter dated 4 July 2012, your response of 5 July 2012, my email of 13 July 2012, and your email response of 24 July 2012.

I note that in your letter dated 5 July 2012 you advised that the public notification process in respect of the above development application would close on 6 July 2012. Following my inquiry on 13 July 2012 regarding extension of time options, you advised on 24 July 2012 that section 151C of the Legislation Act 2001 (ACT) may be called upon (in addition to section 156 of the Planning and Land Development Act 2007 (ACT)) to enable the Planning and Land Authority to extend the public notification period even though that period has ended.

Please treat this letter as a formal application pursuant to s151C(2) of the Legislation Act for the public notification period in respect of the above development application to be extended for a period of four weeks from today's date. The grounds on which this application is brought include the following:

The particular development application before the authority is one of considerable scale and public importance;

In our submission, having regard to the above, a period of 15 working days is insufficient to allow adequate public notification consultation and to allow interested members of the public to make informed submissions to the authority;

We provide details of material not made available on website etc. or in exhibition, or otherwise raises matters of environmental consideration mentioned in the body of the DA materials but not provided with sufficient or any assessment. The result is that interested members of the public have been unable to make fully informed representations in relation to the proposed development;

Absence of traffic report in exhibition materials;

Within "traffic", no report or other substantiation as to parking impact and street and other lighting impact;

Reference to what may be described as funeral preparation activities on this site without health or other related assessments;

Reference to construction of Minarets on site but with no assessment criteria exhibit on noise impacts;

No social impact statement evidence in the body of materials on exhibition.

Absence of a statement of Environmental Significance or explanation as to why one is not considered necessary;

Not report or commentary or proposed bulk, scale and height impacts and maximum developable potential of this work;

No documentation going to crime prevention planning;

In consultation with other Government agencies, include the EPA, Heritage and TAMSD, whilst it is known these and potentially other bodies have been consulted, the findings of these agencies and/or their reports are not exhibited;

Inconsistency between floor plan and first floor utility and proposed utility as washroom and chiller (for cadaver storage) and whether this 'community use' facility is a place or religious worship or a undertaker facility or both;

No declarations of any actual or constructive conflicts of interest know to exist with the developer applicant and staff employee of ACTPLA;

Within Table of Responses, no or inadequate reasons given for environmental variables, in particular:

Item 1.3: No reasons given as to why this rule is not applicable.

Item 1.4: no reasons given as to claim the rule is not applicable followed by assertion that "No approved lease and development conditions exist for the site". Query validity of this point in light of assertion the lease was granted to CMC in July 2011.

Item 2.1: No explanation of what is 'desired character'. No public interest contribution to this aesthetic environmental factor.

Item 2.2: Does not exist in this document.

Item 2.3: follows Item 2.4 (below).

Item 2.4: Whilst the present construction does not currently border residential properties, it will do so when future land releases occur. Therefore question on future impact no addressed adequately or at all.

Item 3.2: 'Promote attractive streetscape' - This is conjecture by the Developer and not balanced by objective streetscape impact assessment.

Item 4.1: As noted above, there is no traffic impact assessment included in the exhibited materials. Our client expects the assessment to be exhibited so that a formal response can be made.

Item 5.1: No exhibited materials supporting claims that the proposed development meets the standards within the Water Sensitive Urban Design Report. The one page document on point is in our view insufficient to make this claim.

Item 5.2: Land management and protection plan submitted is not provided amongst the posted documents for this DA.

Item 5.4: Landscape Management and Protection Plan submitted is not posted with this DA. Nor is any advised to your authority that has apparently considered any advice from the Conservator of Flora and Fauna before determining the application. Please verify this is was [sic] done.

Item 6.1: Noise: We note it is claimed the development complies with a noise management plan prepared by a suitably qualified person. The intended use of the Minaret is not considered.

Item 7.2: Utilities: Claim to have met the criterion and yet the documents supporting this is not public with this DA

These absences and omissions of information and reports above severely delimit any capacity for comprehensive community response within the three week exhibition period.

It is our submission preferable for the authority to have before it, before making its decision regarding the development application, detailed and reasoned (rather than the potentially brief or superficial) submissions from interested members of the public including if appropriate (as we say it is in this case) relevant expert reports, so as to enable the authority to make "the correct and preferable decision" from the outset; and

As previously advised, our particular client is in the process of obtaining expert reports in support of a proposed more detailed submission and has also sought further information relevant to its proposed submission by way of a request under the Freedom of Information Act 1989 (ACT).

Given that the authority's proposed decision date in respect of the above application is 9 August 2012 (according to your letter of 5 July 2012) I would be grateful for your urgent consideration of the above application and response as soon as possible.

Please note that in the event that the application under section 151C is refused our client will consider commencing action in the Supreme Court to compel the authority to extend the public notification period in respect of this matter. We note also the potential costs implications thereof if our client's action is successful.

[351]

Thank you for your letter dated 1 August 2012 seeking an extension of the public notification period for Development Application No 201221881 relating to Block 2 Section 235 Gungahlin ("the development application").

You requested that your letter of 1 August 2012 be treated as a formal application pursuant to section 151C(2) of the Legislation Act 2001 and section 156(3) of the Planning and Development Act 2007, and you proceeded with providing an extensive list of reasons why, in your view, the timeframe for public notification of this development application should be extended.

Your application for an extension of the public notification period was considered by the planning and land authority within the Environment and Sustainable Directorate ("the authority"). I advise that your application has been refused by the authority.

The authority noted your view that this development application is "one of considerable scale and public importance". The authority is of the view that the scale of the proposed development and its public important is not unlike other applications for the development of places of worship.

The authority is of the view that the prescribed timeframe of 15 working days was sufficient to allow persons to make informed representations. Furthermore, sufficient information was available in relation to the development application for informed public scrutiny during the public notification period. The authority formed the view that the lack of any of the documents listed in your letter would not have placed any representor at such a disadvantage to warrant extension of the timeframe for public notification.

Some of the information mentioned by you as lacking from the documentation on public notification is not required under the provisions of the Planning and Development Act 2007 and the Territory Plan for this particular proposal such as; a social impact statement, a statement of environmental significance, and a noise management plan. Pursuant to Rule 24 of the Community Facility Zone Development Code, a noise management plan is clearly not required for a place of worship. However, a referral entity such as the Environment Protection Authority may require additional noise mitigation measures.

Similarly, a traffic report is not a requirement per sé, although the authority has a duty to ensure that the proposal complies with the relevant provisions of the Territory Plan such as the relevant provisions in the Parking and Vehicular Access General Code and Criterion 14 in the Community Facility Zone Development Code. In this regard the entity responsible for traffic assessment, Territory and Municipal Services Directorate (TaMSD) required the submission of a parking and traffic study, and the proponent responded duly by providing such a study on 31 July 2012. The information contained in the study is currently under assessment.

With reference to your concern that entity advice has not been "exhibited", I wish to clarify that referral of development applications to entities is undertaken pursuant to the relevant provisions (Division 7.3.3) of the Planning and Development Act 2007. Entity referrals occur simultaneously with public notification and, pursuant to section 149(2) of the Act, entities must give their advice in relation to the development application to the authority. The purpose of the entity advice therefore to inform the authority and, for this reason, inclusion of entity advice is not a prerequisite for public notification documentation. However, the authority endeavours to report in full on entity advice received as part of the decision-making process, and entity advice received is therefore summarised, quoted or attached to any subsequent notice of decision.

Your concern with a potential conflict of interest is noted. In this regard the applicant for the development application made a conflict of interest declaration on p12 and 13 of the application form, namely that the wife of the applicant is employed by the authority. Where a conflict of interest declaration is made, the authority's standard practice is to ensure that the person mentioned in the conflict of interest declaration does not partake or influence the assessment and decision-making process. In this regard I can clarify that the relevant person has not been involved in any way with the assessment of this development application and has not attempted in any way to discuss this matter with her colleagues. It is also standard practice for the authority to determine matters where a conflict of interest declaration is made at an executive level to ensure that the decision is unfettered.

Your reference to the "Table of Responses" is understood to be a reference to the Statement against Relevant of Criteria [sic] that was prepared by the proponent and submitted as part of the required documentation for the development application. The purpose of a Statement against Relevant Criteria is to inform the authority how the proponent justifies compliance with the relevant requirements of the Territory Plan. The authority does not necessarily accept as correct what is contained in the submitted Statement against the relevant provisions of the Territory Plan in order to satisfy itself whether or not such provisions have been met.

It is not common practice, nor an expectation that a representor should be required to prepare or submit an expert report to support any submission made in representation. It is however important for a representor to express their concerns in writing to enable the authority to have an understanding of the range of concerns and issues.

Lastly, I wish to point out that this development application is assessed and managed in accordance with the legislative requirements and practices and procedures - similar to any other development application.

Accordingly, for the reasons set out above, an extension of the public notification timeframe is not warranted and your application has been refused.

[365]

The matters that a decision-maker may take into account when exercising a statutory function are to be determined by construing the empowering statute, considering the express terms or the subject matter of the legislation, and its scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 36 (Peko-Wallsend). It is only when a decision-maker fails to take account of a consideration which he or she must take into account, or takes account of a consideration which he or she must not take into account that an applicant for judicial review will be able to make out the relevant and irrelevant consideration grounds respectively. Mason J in giving the principal judgment in Peko-Wallsend at 39 stated that:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General (1981) 1 NZLR 172 at 183, 196-197; Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232-233. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider."

(Emphasis in original)

Deane J in Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375 considered that a failure to consider an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant" was not a ground for judicial review.

The grounds of review relating to relevant and irrelevant considerations are "concerned essentially with whether a decision-maker has properly applied the law" and not with "the process of making particular findings of fact upon which the decision-maker acts": Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348. Where the principles of construction outlined in Peko-Wallsend point to a broad or unfettered discretion, it is generally for the decision-maker to decide what is relevant: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [525]

[518]

105 This formulation was adopted by myself in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71]. It was also adopted and applied by myself, with the agreement of Mason P and Hodgson JA, in Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [122]. In Notaras I cited (at [124]) [31] of the judgment of Biscoe J in Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 where his Honour drew a distinction between a decision which the court considers is unreasonable and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter required "something overwhelming": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44].

106 In Wednesbury itself, Lord Greene MR at 229 referred to the relevant unreasonableness as "something so absurd that no sensible person could ever dream that it lay within the power of the authority". In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock defined Wednesbury unreasonable decisions as those which "looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". In Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] 1 AC 484 at 518, Lord Brightman said that the unreasonableness must be "verging on an absurdity".

107 Other synonyms have been described in the authorities. They are collected in Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co at 376-377 [6.215].

108 What Lord Brightman said in Puhlhofer at 518 and, in particular, his Lordship's reference to the relevant body's decisions being, in effect, immune unless it was acting perversely, was cited by Gleeson CJ and McHugh J in Eshetu at [41]. The essential point relevant to the present appeal which their Honours made in that case was, as Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 42, the necessity for a court to "proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits".

109 The cases are replete with this warning with the consequence that the success of a challenge on the Wednesbury unreasonable ground is confined to extreme cases involving, as Aronson et al opine at 376, "demonstrably absurd decisions".

[530]

1.3 Using the code

The code adopts a performance based approach and section 3 sets out, for each of the zones, objectives relating to the provision of parking which development proposals are required to meet. The relevant schedule in section 3 defines the minimum parking provision requirements for permitted development for each of the zones.

The scale of parking provision required is derived from a set of criteria relating to safety, economic efficiency, accessibility, commercial viability and social and environmental objectives. The parking provision rates take account of factors such as the availability of public parking and the potential for shared parking with neighbouring developments, accessibility of the location to public transport, and relevant transport, economic, social and environmental policies, such as travel demand management measures.

The parking provision rates are based on a range of empirical evidence available to the Department of Territory and Municipal Services (TaMS), interstate codes and guidelines and international guidelines to set the most appropriate standards for a particular zone.

The parking provision rates in conjunction with the scale of development are used to calculate the parking requirement that, in normal circumstances, would be deemed to meet the relevant objectives.

Any specific requirements for the provision of parking and access in areas subject to the National Capital Plan or to other codes of the Territory Plan would take precedence over the requirements specified in this code.

Parking generated by a development is generally required to be accommodated on site or in a location consistent with the criteria in section 2.

In cases where the physical constraints of a site make on-site provision impracticable, or the Territory may consider it undesirable for efficiency, traffic operation, pedestrian amenity or other reasons for the specified parking to be provided totally on-site, special arrangements may be negotiated or requirements may be waived at the discretion of the Territory. In such situations the ability to consolidate parking in publicly accessible off-site locations provides a superior outcome. Costs can be reduced by eliminating

the need for costly on-site basement car parking, and greater efficiency can be achieved through the increased potential for shared and complementary use.. (emphasis added)

[661]

(a) The plaintiff does not have standing to challenge the First Decision because it did not exist when the decision was made. The interests of the incorporated association are distinct from the interests of those persons who made up the unincorporated association for whom Mr Balzola acted when he corresponded with the Authority. There are no relation back provisions in the Associations Incorporation Act 1991 which would permit any pre-incorporation activities to be taken to be the actions of the body corporate. Unlike in relation to rights of property where there is a statutory provision vesting property held on behalf of the association or proposed association by any person in the newly incorporated association: s 23, there is no provision of the Associations Incorporation Act 1991 which deems activities undertaken by persons who subsequently become members of an incorporated association to be the actions of that incorporated association. Therefore the actions of Mr Balzola were not undertaken on behalf of the plaintiff but instead on behalf of an unincorporated association the membership of which there is no direct evidence. The First Decision was not in response to any request for an extension of time by the plaintiff. There is no evidence to show what the relationship was between the membership of the unincorporated Concerned Citizens of Canberra and the plaintiff apart from the fact that Mr Ross was the driving force behind both.

(b) Because the plaintiff did not exist at the time of the First Decision, the decision in Australian Conservation Foundation v South Australia (1990) 53 SASR 349 cannot assist it. In that case an entity with a statutory entitlement to make representations on an application for planning approval was found to have standing to challenge the development on the basis that an unlawful process had been adopted which had the effect of denying the plaintiff its statutory rights. The principle in the case can have no application in the present case because the plaintiff did not exist when the First Decision was made and hence was not denied anything.

(c) It is open to the defendant to assert that the plaintiff lacks standing. I am not satisfied with the way in which the defendant has conducted the proceedings precludes it from now raising an issue in relation to the standing of the plaintiff. The notice objection to competency which was originally filed addressed the logical problem that existed for the plaintiff that it had purported to commence proceedings prior to it coming into existence. It did not either expressly or impliedly involve a waiver of any argument in relation to standing. The defendant did not concede the standing of the plaintiff by opposing the joinder of Mr Ross before Sidis AJ. There was no evidence led of any agreement between the parties or any misconception on the part of the plaintiff about whether or not any contention in relation to standing had been waived by the defendant.

(d) The plaintiff cannot establish standing on a basis analogous to that established in North Coast. In the present case the evidence discloses that the only activities of the plaintiff have been the commencement and conduct of these proceedings, fundraising associated with that activity, and the complaint to the Press Council. Because the association did not exist until after the proceedings were commenced, it has no previous history of activities which could provide a basis for finding that when it commenced the proceedings it was a person aggrieved by the First Decision. Similarly, by the time of the Second Decision, the only activity of the plaintiff had been to commence proceedings in relation to the First Decision.

(e) In so far as the objects of the plaintiff could be deployed in support of a claim to standing they are not either alone or in combination with other factors sufficient. The objects of the organisation are those set out in its application for incorporation quoted above. They are at such a high level of generality to be unhelpful for the purposes of characterising the actual purpose and activities of the organisation. In any event even if the objects were directly related to the present proposal that would be insufficient of itself to establish standing. That is a consequence of the decision of the High Court in ACF: North Coast at 512.

(f) The plaintiff does not have standing on the basis of its spiritual or cultural values. While spiritual and cultural beliefs have been accepted by the High Court as a basis for standing, this is not a case where that authority can be applied. First, unlike in Onus or in Ogle the applicant is an incorporated association necessarily without any religious or spiritual beliefs. Second, the only evidence of religious or spiritual beliefs is the evidence in relation to Mr Ross who describes himself as a "pastor" at "Olive Tree Ministries". He has no theological training. There is no evidence about his activities as a pastor or how long he has performed that role. It is clear from Exhibit 9, some extracts of which have been quoted above, he holds views which are very much against the acceptance or tolerance of the Muslim faith. Accepting that there are authorities which accord standing to organisations not on the basis of what they have done (such as North Coast) but who they represent (see Aronson Dyer and Groves, Judicial Review of Administrative Action (Thomson Reuters, 4th ed, 2009) at [11.100]) the evidence did not establish the interests of its members except in two respects. There was evidence of Mr Ross' interests but that did not extend beyond mere intellectual or emotional concerns. There was some evidence of Mr Adair's property interests but the evidence linking any affect on those interests to the development was limited and there was nothing that would demonstrate that those interests were held in common with other members of the association.

(g) The plaintiff was not "an eligible entity" within the meaning of the ADJR Act on 9 August 2012 and is not currently an eligible entity, if that was relevant. The submission of the plaintiff relying upon the definition of eligible entity is misconceived. As at 9 August 2012 the concept of "an eligible entity" did not exist in the ADJR Act. It was only introduced well after the commencement of these proceedings by an amendment to the Act in 2013. The insertion of a new s 4A in the ADJR Act by the Administrative Decisions (Judicial Review) Amendment Act 2013 which introduced the concept of eligible would not, if it applied, alter the standing of the plaintiff in the present case. Notwithstanding the liberalisation of standing requirements in relation to most administrative decisions, the Legislative Assembly carved out from that liberalisation decisions under the PD Act and the Heritage Act 2004 in relation to which it is still a requirement that the person's interests would be adversely affected by the decision: see s 4A(2). The challenge in this case being to decisions under the PD Act, the requirement for an adverse affect on the plaintiff's interests still applies. As a consequence, it is not necessary to determine whether those amended provisions could have any application in the present case notwithstanding that the proceedings were commenced prior to their enactment.

(h) The plaintiff is not deemed for the purposes of the ADJR Act to suffer material detriment by reason of s 419(1)(b) of the PD Act. The plaintiff's submission on this point was misconceived. It appeared to be that by reason of the definition of "material detriment" in s 419 of the PD Act, the plaintiff became a person aggrieved for the purposes of the ADJR Act. How the link between these two Acts was made was not explained. The reason for the inclusion of a definition of "material detriment" in s 419 is because that term is used in Schedule 1 to the Act. Schedule 1 describes decisions which are reviewable by the ACT Civil and Administrative Tribunal. In some of these items in Schedule 1 an "eligible entity" is required to have suffered "material detriment" before it is entitled to seek merits review of the decision in the Tribunal. These provisions do not have anything to do with a claim for judicial review under the ADJR Act.

(i) The position of the plaintiff is not improved by the making of allegations of contravention of the Constitution. Standing remains a necessary requirement to raise a justiciable controversy and the plaintiff in the present case does not even have the claim that it is a taxpayer: cf Davis v Commonwealth [1986] HCA 66; (1986) 61 ALJR 32 at 35; Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 at 34. No connection has been identified by the plaintiff between its allegations of breach of the free exercise provision of s 116 and either itself or even its members.

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (665 paragraphs)

Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 165 (4 July 2014)

Parties

Legislation Cited (28)

Cases Cited (37)