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2. Mbark lodged the DA on about 23 April 2024 for construction of a retirement village with basement parking and associated infrastructure, water retention and detention basin, landscaping, tree removal, temporary construction access and 1 associated works. It was in relation to block 1 section 56 Red Hill (which has an 2 area of 859090 m ) and block 76 section 10 Garran (which has an area of 2 2 68906 m ) (subject blocks). Each block is in a non-residential zone and next to 3 a residential zone.

3. Friends of Federal Fairways Inc (ABN 96 962 321 793) (applicant or Friends) is an incorporated association whose objects expressly include preventing residential development on the fairways and open space of the Federal Golf Club and protecting the habitat for wildlife and endangered species on and around the 4 Club. The applicant made representations about the DA before a decision was 5 made and objected to the development on the basis of a range of issues.

4. The DA was conditionally approved by the Authority on 9 January 2026 (DA decision). In summary, the basis for the decision was that the proposal was consistent with the relevant policies in the Territory Plan 2023 (Territory Plan), 6 including policies for the district and zone.

1 The DA Application Number is 202442901, see statement of findings dated 23 February 2026 at page 1 2 Statement of findings dated 23 February 2026 at [2]-[5] 3 Respondent’s submissions on the preliminary question dated 25 March 2026, Appendix A and B 4 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [21] 5 T documents at pages T2395-T2416 6 Statement of findings dated 23 February 2026 at [85]-[86]

5. The applicant seeks to challenge that decision in the tribunal. The applicant filed an application for review of the DA decision dated 6 February 2026 (Application for review).

6. The party joined made an application for interim and other orders dated 4 March 2026 seeking an order that the Application for review be dismissed, in summary because the applicant does not have standing to bring these proceedings (Application for interim orders). This is in particular because of Schedule 6, Part 6.2, item 3 of the Planning Act 2023 (Planning Act) which sets out the requirements for matters to be exempt from ACAT review by a third party, such as the applicant (exemption requirements or item 3). The party joined and respondent argued that all the requirements for exemption of the DA decision from ACAT review were met, and therefore the applicant did not have standing to seek ACAT review. The applicant argued that all the exemption requirements were not met, and therefore it did have standing. The Tribunal decided to consider this Application for interim orders as a preliminary issue.

Summary of this Tribunal decision

7. The decision of the Tribunal is in summary as follows.

8. The key exemption requirement is ‘a development … on land in a non-residential zone if – (a) the land is at least 50 m from any block within a residential zone’ (emphasis added). The party joined and respondent argued that this requirement and all the other exemption requirements for the DA decision were met. The applicant argued that this requirement was not met, for two reasons.

9. First, the applicant argued that ‘the land’ in paragraph (a) means the whole of the subject blocks, which in this case are next to blocks in a residential zone, and therefore this exemption requirement is not met. The party joined and respondent argued that ‘the land’ in paragraph (a) means the area of the development activities. Here the area of the development activities will be more than 50 m from the blocks in the residential zone (subject to the second issue about what is development noted at [11] below), and therefore the party joined and respondent argue this exemption requirement is met.

10. In our view ‘the land’ means the area of the development activities, on which the development will occur. This is the ordinary meaning of the phrase ‘a development … on land in a non-residential zone if – (a) the land is at least 50 m from any block within a residential zone’. It is true that a general object of the Planning Act is to provide for public participation, but there are other general objects, and a specific purpose of item 3 is to exempt a decision from merits review by third parties where the development is not close to a residential zone. If ‘the land’ means the whole of a block, developments well away from any residential zone will be subject to third party review, which is not the 7 interpretation that would best achieve the purpose of this exemption requirement.

11. Second, the applicant argued that there was development within 50 m from any block within a residential zone in this case, because ‘development’ means 8 ‘undertaking work that would affect the landscape of the land’, and in this case there will be development in the form of drainage works outside the 50 m zone, but which will affect the land within the 50 m zone. In our view it is the undertaking of work which is the development, and this will be outside the 50 m zone. There was evidence presented to the Tribunal that there will be no affect within the 50 m zone. Even if there is some affect, the exemption requirement will still be met because the relevant work undertaken will be at least 50 m from any block within a residential zone.

12. Therefore, in our view all the exemption requirements are met, the applicant does not have standing to make the Application for review, and the Application for review should be dismissed. We make an order to this effect.

Tribunal process

13. The respondent provided T documents in relation to the DA decision (T documents, exhibit T1), which included the notice of decision dated 9 January 2026.

14. A directions hearing was held on 5 March 2026 at which Mbark was joined as a party, it was decided that the Application for interim orders about standing would

7 See section 39 of the Legislation Act 8 See section 14(1)(c) of the Planning Act be heard as a preliminary issue, a timetable was set for submissions and evidence on the preliminary issue, and a hearing on the preliminary issue was set down for 27 March 2026.

15. The party joined provided submissions on the preliminary question dated 11 March 2026, together with a statement from Scott McNiven, surveyor, dated 11 March 2026 (exhibit PJ1) and a statement from Nicolas Richter, architect, dated 10 March 2026 (exhibit PJ2). The party joined also provided further submissions dated 26 March 2026, and evidence in reply by David Consalvi dated 26 March 2026 (exhibit PJ3). At the hearing the applicant objected to the tender of the statement of David Consalvi and there was argument as to this; in the end the statement was admitted as evidence and David Consalvi was cross-examined on his statement.

16. The applicant provided an outline of submissions on jurisdictional question dated 20 March 2026 which attached some documents (exhibit A1), and submissions in reply to respondent’s submissions dated 26 March 2026 with further attachments (exhibit A2). The applicant did not press the tender of attachment B to the submissions in reply.

17. The respondent provided a statement of findings in relation to the decision dated 23 February 2026 (statement of findings, exhibit R1). The respondent also provided submissions on the preliminary question dated 25 March 2026 which attached some documents (exhibit R2).

18. A hearing was held on 27 March 2026 at which the parties also made oral submissions.

Standing requirements

19. The DA was considered under the Planning Act and Territory Plan. There was another development application made under an earlier version of the Act for a 9 similar development which is also currently before the tribunal. There are also other related proceedings.

9 Friends of Federal Fairways v ACT Planning and Land Authority AT 142/2024, see earlier decisions in those proceedings at [2025] ACAT 44 and [2026] ACTSC 5

20. As noted the DA was conditionally approved by the Authority on 9 January 2026. This decision was made under section 185 of the Planning Act.

21. Section 506 of the Planning Act provides that an ‘eligible entity’ for a ‘reviewable decision’ may apply to the ACAT for review of the decision.

22. This DA decision is a ‘reviewable decision’ under section 504 and Schedule 5, Part 5.2, items 1 and 2 of the Planning Act.

23. An eligible entity for a reviewable decision is defined in section 504, which provides: eligible entity, for a reviewable decision - (a) means an entity mentioned in schedule 5, part 5.2, column 3 for the decision; and (b) in relation to a development application or development approval— (i) includes the lessee if the applicant is not the lessee; and (ii) includes the sublessee if the applicant is not the sublessee; but (c) in relation to a matter mentioned in schedule 6, part 6.2 (Matters exempt from third party ACAT review)—means the applicant for development approval for the matter.

24. It was accepted that the applicant did fall within paragraph (a) of this definition because it fell within Schedule 5, Part 5.2, item 2. It was an entity which had made a representation under section 180 about the DA, and it was accepted that the approval of the DA may cause the entity to suffer material detriment, as defined in Part 5.1 of Schedule 5.

25. However, the party joined argued that the applicant was in effect removed from the category of eligible entity by paragraph (c) of the definition. This was said to be because in relation to this matter, under paragraph (c), and Schedule 6, Part 6.2, item 3, only the applicant for development approval is an eligible entity and has standing in ACAT to challenge the decision.

26. Schedule 6 is entitled ‘Matters exempt from third party ACAT review’. Part 6.2 also has this heading. Schedule 6, Part 6.2, item 3, contains the exemption requirements and provides (emphasis added): a development, other than a significant development requiring an EIS or a subdivision design application, on land in a non-residential zone if— (a) the land is at least 50m from any block within a residential zone; and (b) for a development involving the building or altering of a building or other structure on the land—the new or altered building or other structure meets the quantitative requirements for any applicable height and plot ratio provisions; and (c) for a development on land the subject of a lease or sublease which at the time of the application permits a community use— the decision does not authorise a lease variation to remove a community use; and (d) for land within a CZ4 (local centre) zone and the subject of a lease or sublease which at the time of the application permits the use of the land for a shop— (i) the decision does not authorise a lease variation to remove the use of the land for a shop; and (ii) the development would not have the effect of permitting the building of a dwelling on the land; and (e) for land in a non-urban zone—the development would not have the effect of permitting the use of the land for a purpose other than that for which it is leased, or permitted by a licence under this Act, at the time of the application.

27. In summary, the party joined argued that all the requirements for the matter to be exempt from third party review in item 3 were met. Therefore, the applicant did not have standing to bring these proceedings. The respondent agreed with that position.

28. The applicant argued that the requirement in item 3, paragraph (a) was not met for two reasons. We focus on those reasons; one concerns the meaning of ‘the land’ and the other the meaning of ‘development’. We note that submissions were made in relation to the other requirements in item 3, the parties accepted that these 10 are met, and the Tribunal takes the view these are met.

10 Party joined’s submissions on preliminary question dated 11 March 2026 at [11]-[30]; respondent’s submissions on the preliminary question dated 25 March 2026 at [10]-[45]; outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [18]-[19] The land issue

29. In relation to the first issue, the applicant’s position was that paragraph (a) in item 3 was not met because ‘the land’ referred to in paragraph (a) means the whole of the subject blocks, namely block 1 section 56 Red Hill and block 76 section 10 Garran. If this is correct, that land is not at least 50 m from any block within a residential zone. Rather there are blocks in the residential zone directly adjoining 11 the subject blocks.

30. The party joined’s position, supported by the respondent, was that paragraph (a) in item 3 was met because ‘the land’ in paragraph (a) is rather the land on which 12 the development is proposed to occur. The party joined’s evidence was that the development will be at least 50 m from any block within the residential zone. Mr McNiven confirmed that ‘the development is at least 50 metres from the nearest residential boundaries’ and referred to a diagram which identifies the 13 development which is the proposed buildings. The respondent supported this 14 position.

The development issue

31. In relation to the second issue, the applicant also argued that the development as defined in section 14 of the Planning Act will not be at least 50 m from any block within a residential zone. In particular this definition includes (c) undertaking work that would affect the landscape of the land, and drainage would be affected 15 within 50 m of blocks within the residential zone.

11 Outline of applicant’s submissions on the jurisdictional question dated 20 March 2026 at [7]-[8], developed at [31]-[52] 12 Outline of applicant’s submissions on the jurisdictional question dated 20 March 2026 at [31]- [37]; applicant’s submissions in reply to respondent’s submissions dated 26 March 2026 at [1]- [13] 13 Party joined’s submissions on preliminary question dated 11 March 2026 at [15]-[18]; party joined’s submissions dated 26 March 2026 at [1]-[33]; statement of Scott McNiven dated 11 March 2026 at page 3 14 Respondent’s submissions on the preliminary question dated 25 March 2026 at [30]-[38] and [47]-[50] 15 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [38]-[52]; applicant’s submissions in reply to respondent’s submissions dated 26 March 2026 at [14]-[18] 16 17

32. The party joined’s position, supported by the respondent, was that it is the undertaking of work which is the development, and the affect on the landscape goes to the type of work involved. The drainage work will be more than 50m from blocks within the residential zone, and at any rate they will have no affect within 50 m of blocks within the residential zone.

33. We now consider these issues.

Consideration of the land issue Words

34. The requirements apply to ‘a development … on land’, and then go on to set out requirements related to ‘the land’, in particular that in paragraph ‘(a) the land is at least 50 metres from any block in a non-residential zone’. It is necessary therefore to determine what constitutes ‘the land’ in this provision.

35. The term ‘land’ is not defined in the Planning Act. It is defined in the Legislation Act 2001 to include ‘messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description, whatever the interest in the land’, with 18 a note about some of these terms. This is not particularly helpful in this context.

36. ‘Land’ therefore takes its general meaning, which is many facetted. In the Macquarie Dictionary it is perhaps the fourth meaning given which is the most relevant here: ‘an area of ground together with any trees, crops or permanently 19 attached buildings and including the air above and soil beneath’. But this does not help to decide which area is referred to here.

37. The term development is defined in section 14 of the Planning Act, set out below at [75]. This includes the concepts of (a) building, altering or demolishing a building or other structure on the land; (b) undertaking earthworks or other construction work on or under the land; (c) undertaking work that would affect

16 Party joined’s submissions dated 26 March 2026 at [34]-[41] 17 Respondent’s submissions on the preliminary question dated 25 March 2026 at [51]-[54] 18 Section 2 and Dictionary. There is a definition in the Territory Plan, Part G, Table 2, but this is simply ‘land includes water’ 19 th Macquarie Dictionary (5 edition, 2010); this is generally one of the meanings of land at common law, see La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32, Gageler CJ at [11] the landscape of the land; (d) using the land, or a building or other structure on the land. This indicates that development is an activity, not what is created or caused by the activity.

38. In our view the most relevant indicator are the words of the provision in which the term appears. As noted, the key elements of the chapeau and paragraph (a) are ‘a development … on land … if the land is at least 50 m from any block within a residential zone’. This shows that the answer to the question, ‘which land?’, is the area of the development activities, on which the development will occur. In our view this is the ordinary meaning of the provision.

39. It is true that the provision deals with proximity to a ‘block’, and the applicant argues in effect that the block on which the development will occur is the correct meaning of land at the beginning of paragraph (a). But the provision tellingly 20 does not use the term block in relation to the development. 21 22 23

40. The DA , the notifications, the notice of decision and the statement of 24 findings all provide that the DA concerns block 1 section 56 Red Hill, and Block 76 section 10 Garran. The applicant argues that this is the relevant land, and that for the purposes of paragraph (a) of the requirements that land is contiguous with 25 and thus within 50 metres of multiple blocks in a residential zone. But as noted this is not how the requirement in item 3, paragraph (a) is constructed.

41. We note that the Planning Act does in a few places use the term ‘the land to which the [development] application relates’. For example, section 176 provides for notice to owners of leased land which adjoins the land to which the application relates, and sections 198(3) and 205(3) to lessees of land to which the application relates. Given the reference to adjoining and leasing, this may mean the whole of

20 ‘Block’ is defined in the Planning Act, which refers to the Districts Act 2002, and the Territory Plan 21 T documents at page T3184 22 T documents at pages T3067, T3153, T3155-T3160 23 Notice of decision at page 1, attached to the Application for review 24 Statement of findings dated 23 February 2026 at page 1 25 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [27] the relevant block of land. But this is tellingly not the term used in the exemption requirement in paragraph (a).

42. The applicant argues that a person works out what planning requirements apply to a development proposal by looking at a map in the Territory Plan to determine the relevant zoning and rules for the block on which development will occur, and 26 that the block and section number description are central to the planning system. But as noted there are many references to the relevant block and section number in the materials, including the DA, notifications, and decision. These can be used when necessary.

43. The applicant also argues that the determination of the exact dimensions and siting of the land on which the development will occur may be difficult to determine and may require a surveyor. In contrast the dimensions and siting of 27 the block will usually be clear. But the Planning Act requires that development 28 applications provide a range of information in relation to the development. In this case there is significant information in the DA which enables an assessment of the exact dimensions and siting of the land on which the development will occur. Because of the provisions in the Planning Act, this is a requirement for all development applications. We note that the Act extensively uses the term proposed development and related concepts, which suggests that the concept is generally readily ascertainable.

44. In the presentation speech for the Planning Bill 2022 (Planning Bill) which 29 became the Planning Act the Minister stated (emphasis added): The bill will identify categories of decision that are exempt from review. … Developments in the city centre, a town centre, an industrial zone or the Kingston foreshore continue to be exempt. Developments in other non-residential zones will be exempt where fundamental development controls are met and a development is not close to a residential block.

26 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [33] 27 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [34] 28 Planning Act section 166 and the mechanisms set out there 29 Legislative Assembly of the Australian Capital Territory, Assembly Debates, 21 September 2022, page 2619, Mick Gentleman MLA, Minister for Planning and Land Management. Regard can be had to this under section 142 of the Legislation Act

45. The concept of a development which is not close to a residential block is clearly a reference to item 3, paragraph (a). The concept of where fundamental development controls are met is a reference to paragraph (b).

46. The explanatory statement for the Planning Bill made a similar statement in relation to the category of decisions which will be exempt from review (emphasis 30 added): Developments in the city centre, a town centre, industrial zone or Kingston foreshore continue to be exempt. Developments in other non-residential zones will be exempt where a set of criteria are met. Amongst those criteria are: • the development must be at least 50m from a block within a residential zone; and …

47. These statements provide some support to the position of the respondent and party joined, but it may be that these are simply a summary of the provision rather than an attempt to define what it means. We do return to the presentation speech and explanatory statement in relation to the purpose of the provision below.

48. We also note that the Inner South District Policy in the Territory Plan deals expressly with assessment requirements for Red Hill – Federal Golf Course developments. This provides for development of a retirement village which complies with specific requirements which includes that ‘buildings and structures are setback a minimum of 50 metres from residential and PRZ1 zoned blocks as indicated on Figure 13’, which is headed ‘Red Hill – Federal Golf Course – 31 Development location and setbacks’ and shows the 50 m setback. We do not think that this delegated legislation can be used to interpret the primary Planning Act. But it does indicate a consistency of approach within the planning instruments to the one proposed by the party joined and respondent.

30 Legislative Assembly for the ACT, Planning Bill 2022, Explanatory Statement and Human Rights Compatibility Statement, page 25, see also pages 131-132. Regard can be had to this under section 142 of the Legislation Act 31 At page 34 Context

49. Apart from the terms of the provision itself, this is a case where the context of the provision within the Act is not particularly helpful.

50. As noted, Schedule 6 and Part 6.2 are headed ‘Matters exempt from third party ACAT review’. This makes it clear that exemptions are provided, but does not assist with determining the meaning of the specific terms of those exemptions.

Purpose

51. In our view a more useful indicator of the meaning of ‘the land’ is the purpose of 32 the provision.

52. The party joined makes two broad points. First, the policy of an Act must be found in the words of the statute and not in some a priori assumption about what is good 33 public policy. We agree. But here there are significant indications as to what are the purposes of the Act in the terms of the Act itself and in material which the 34 tribunal can have regard to interpreting those terms.

53. Second, the history of this legislation indicates that it is balancing the interests of 35 a landowner, and the interests of the broader community. The party joined refers back to section 25 of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) which provided in section 25 for ‘the procedures for just and timely review, without unnecessary formality of appropriate classes of decision on planning, design and development of land’ and thereby recognised 36 limits to review rights. It argued that the balancing by the Act of the ability of the landowner to use the land as they wish, and the interests of members of the broader community to limit or prevent this, requires that an orthodox approach to

32 See generally sections 138 and 139 of the Legislation Act; Lacey v Attorney-General Qld [2011] HCA 10 at [44], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; D C Pearce Statutory th Interpretation in Australia (10 edition, 2024) at [2.1], [2.9] and [2.28] 33 Party joined’s submissions dated 26 March 2026 at [23]; Certain Lloyd’s Underwriters Subscribing to Contract No IHOOAAQS v Cross [2012] HCA 56 at [25]-[26], French CJ and Hayne J 34 Legislation Act, section 142 35 Party joined’s submissions dated 26 March 2026 at [1]-[5] 36 Party joined’s submissions dated 26 March 2026 at [25]-[26] statutory interpretation should be adopted. We also agree with this. Such an orthodox approach includes having regard to the purpose of the provision.

54. Section 139 of the Legislation Act provides: (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) This section applies whether or not the Act’s purpose is expressly stated in the Act. Note The Human Rights Act 2004, s 30 (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.

55. The Planning Act sets out its objects, which indicate its purpose, in section 7 which provides: 7 Object of Act (1) The object of this Act is to support and enhance the Territory’s liveability and prosperity, protect its natural environment, and promote the well-being of residents by creating an effective, efficient, accessible and enabling planning system that— (a) is outcomes-focussed; and (b) promotes and facilitates the achievement of ecologically sustainable development; and (c) provides a scheme for public participation. (2) As part of achieving the object mentioned in subsection (1), the planning system is intended to— (a) be based on policies, processes and practices that are easy to understand; and (b) promote certainty of processes and consistent and transparent application of policies while at the same time providing scope for innovation in development proposals; and (c) provide a clearly defined hierarchy of planning strategies that inform the content of the territory plan; and (d) engage with other laws to support the efficient, appropriate and effective delivery of other related government policy objectives; and (e) promote high standards for the built environment through an emphasis on design quality and universal design for the benefit of people with differing needs and capabilities; and (f) provide for public participation in relation to the development of planning strategies and policies, and development assessment.

56. Subsection (3) sets out some matters which are integral to achieving the object of the Act.

57. This is drafted as one object, but is more usefully seen as a number of objects and intentions. There are a few general propositions which can be made about this provision. First these are broad objects, which should generally be treated with 37 caution. Section 7(1)(c) refers to a planning system which provides a scheme for public participation. Section 7(2)(f) provides that the planning system is intended to ‘provide for public participation in relation to the development of planning strategies and policies, and development assessment’. The applicant 38 emphasised these objects. But these provisions provide little indication as what that public participation in the planning system should involve. This is left for the terms of the Act to determine.

58. Second there are a range of other objects, also broadly expressed, some of which pull against the participation objects. This includes the references to an ‘efficient’ planning system, which suggests a timely system, to an ‘outcomes focussed’ system, which stands in contrast to process focussed one, and to a planning system which is intended to ‘promote certainty of processes’, which may include efficiency, timeliness and finality in decision making processes.

59. Third, there are in fact significant provisions in the Planning Act providing for public participation. The Planning Act was passed by the Legislative Assembly as the democratically elected body which represents the whole of the Territory community, and with the opportunity for significant public participation in its processes. The making of the Territory Plan is subject to significant public participation.

60. The assessment of a development application usually involves significant opportunity for public participation. This includes general notification of the

37 th D C Pearce Statutory Interpretation in Australia (10 edition, 2024) at [2.33] 38 The applicant also relied on the objects of the ACT Civil and Administrative Tribunal Act 2008, section 6 development application (section 175(1)(a)), and specific notification to limited classes of people, namely those adjoining, those affected in a similar way, and those with an interest in the land (sections 176 and 177). Under section 180 anyone may make a written representation about a development application that has been publicly notified. The DA at issue in these proceedings was notified and 39 the applicant made representations, as did many others. The decision-maker is required to take into account any representation about the development 40 application, including by the applicant in relation to this DA.

61. There is a merits review regime for some decisions. But even leaving aside Schedule 6, this regime is limited. Schedule 6 adds further limitations. There 41 remains a general judicial review regime in relation to almost all decisions.

62. In our view therefore the planning system provides a scheme for public participation, including in relation to development assessment, which also has regard to other objects such as efficiency, timeliness and finality. Anyone can make a representation; merits review is limited.

63. If the only purpose of the Planning Act was public participation, this may provide an argument that with section 139 of the Legislation Act, the ambiguous term ‘the land’ in paragraph (a) should be read expansively as the applicant suggests. But there are other general purposes which we have noted which weaken that argument.

64. Importantly for this case, there is a clear further specific purpose in relation to Schedule 6 which is that relevant matters should be exempt from third party review where the development is not close to a residential zone.

65. In support of this policy, we note again the presentation speech for the Planning 42 Bill where the Minister stated (emphasis added):

39 T documents at pages T2395-T2416 40 Section 186(h) of the Planning Act 41 Administrative Decisions (Judicial Review) Act 1989, section 4A, Schedule 1, and Dictionary 42 Legislative Assembly of the Australian Capital Territory, Assembly Debates, 21 September 2022, page 2619, Mick Gentleman MLA, Minister for Planning and Land Management The bill will identify categories of decision that are exempt from review. … Developments in the city centre, a town centre, an industrial zone or the Kingston foreshore continue to be exempt. Developments in other non-residential zones will be exempt where fundamental development controls are met and a development is not close to a residential block. 43

66. The explanatory statement also stated (emphasis added): The effect of these criteria is that where fundamental development controls relating to height and plot ratio are met, and a development is not close to a residential block, a decision on a development application may be exempt from review. This approach reflects that where key acceptable measures within the Territory Plan are met, the proposal is delivering an intended development outcome.

67. As noted above, in our view the concept of a development which is not close to a residential block is clearly a reference to item 3, paragraph (a) and the concept of where fundamental development controls are met is a reference to paragraph (b).

68. The explanatory statement goes on to consider the consistency of the Planning Bill with human rights under the Human Rights Act 2004, and in relation to the 44 right to a fair trial states: The Bill limits the right to a fair trial by placing some restrictions on review rights. … In addition, the Bill also limits the right by setting out in Schedule 7 [Schedule 7 in the Bill is now Schedule 6 in the Act] which development assessment matters are exempt from third party ACT Civil and Administrative Tribunal (ACAT) review. These provisions, particularly the exemptions for development in town centres and Territory Priority Projects, limit the right to procedural fairness in having disputes settled. … Exempting some developments from third party ACAT review in Schedule 7 [now Schedule 6 of the Act] allows certain activities which are not significant development, and which meet certain conditions such as being on land that is at least 50m from any block within a residential zone, under the legislation to proceed. …

43 Legislative Assembly for the ACT, Planning Bill 2022, Explanatory Statement and Human Rights Compatibility Statement, page 25 44 Section 21(1) of the Human Rights Act 2004 provides that ‘Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair public hearing’. Under section 28 these rights may be limited, which is the issue the explanatory statement is addressing. Reducing the number of potential reviews on these development decisions will maximise efficient decision-making in the context of low-risk developments and where the ACT Government seeks to undertake significant development that contributes to planning outcomes and provides benefits to the ACT, in a timely manner. Proportionality The limitations on the right to a fair trial are considered proportionate to the legitimate purpose. In the case of development assessment matters, Schedule 7 [Schedule 6 of the Act] exempts from third party ACAT review matters considered low- 45 risk development activities as discussed above.

69. This discussion seeks to justify any limitation on the human right by the provision on the basis of its limited effect, in particular that the developments are not significant, not close to residential blocks, and low-risk, and its purpose, which includes efficient decision-making, contribution to planning outcomes, and timeliness. In doing so it reinforces that the purpose of the exemption requirement in paragraph (a) is to exempt third party review not close to residential blocks in the interests of efficiency, planning outcomes, and timeliness. This supports the interpretation of the exemption proposed by the party joined and the respondent.

70. In our view there is significant basis for finding that there is a purpose in relation to the exemption requirements to prevent merits review where the development is not close to a residential block. Reading ‘the land’ in paragraph (a) to mean the area of the development activities, on which the development will occur, directly implements this purpose. Reading ‘the land’ to mean the whole block on which the development is to occur will allow merits review where the development is not close to a residential block, and on some blocks where the development is a long way away from a residential block. Applying section 139 of the Legislation Act, which provides that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation, the interpretation which best achieves the purpose of preventing merits review where the development is not close to a residential block is that ‘the land’ means the area of the development activities, on which the development will occur.

45 Legislative Assembly for the ACT, Planning Bill 2022, Explanatory Statement and Human Rights Compatibility Statement, pages 34-37

71. The applicant argued strongly that the party joined was suggesting a narrow technical interpretation which disregarded key objects of the Act in relation to public participation. They referred to the case of Australian Postal Corporation v Forgie in the Full Court of the Federal Court where some comments were made that “the beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do 46 so would be inconsistent with the generally beneficial nature of merits review”. This was a case which concerned particular provisions in the Safety, Rehabilitation and Compensation Act 1988 (Cth); the provisions here are very different. At any rate while there is some discussion by the Federal Court of broad and narrow views, the Court applied the general principles of statutory interpretation to hold “that this is a case in which the express words of the statue 47 must govern the outcome”. We have taken the same approach here. Further, in this case, there is a clear specific purpose for item 3 which is to limit participation in merits review.

72. The tribunal has considered a similar issue in a decision in relation to Friends of 48 Federal Fairways Inc v ACT Planning Authority AT 7 / 2025. This Tribunal is not bound by this decision, and has not considered itself bound by it, but rather has made full assessment of the matters before it in this case. After such consideration, the decision in this case is generally consistent with the earlier decision.

Decision in relation to the land issue

73. In our view the exemption requirement that the land is at least 50 m from any block within a residential zone means the area of the development activities, and on which the development will occur, is at least 50 m away from any block within a residential zone. This is the ordinary meaning of the words. This is the reading that best achieves the purpose of the provision.

46 [2003] FCAFC 223 at [66], Black CJ, Merkel and Stone JJ 47 At [86] 48 Transcript of hearing in Friends of Federal Fairways Inc v ACT Planning Authority AT 7/2025 dated 4 March 2026 at pages 28-32 Consideration of the development issue

74. The second issue concerns what the concept of development extends to.

75. ‘Development’ is defined in the Planning Act to mean: 14 Meaning of development and exempt development (1) In this Act: development, in relation to land, means the following: (a) building, altering or demolishing a building or other structure on the land; (b) undertaking earthworks or other construction work on or under the land; (c) undertaking work that would affect the landscape of the land; (d) using the land, or a building or other structure on the land; (e) subdividing or consolidating the land; (f) varying a lease relating to the land (other than a variation that reduces the rent payable to a nominal rent); (g) putting up, attaching or displaying a sign or advertising material other than in accordance with— (i) a licence issued under this Act; or (ii) a sign approval under the Public Unleased Land Act 2013, section 25 (Approval to place sign on public unleased land); or (iii) a public unleased land permit under the Public Unleased Land Act 2013

76. As we have noted the term development is used in the exemption requirement.

Arguments

77. The applicant argues that the party joined proposes such development within 50 m of a residential block. In particular, the stormwater management plan for the DA shows stormwater infrastructure, namely a site stormwater tie, to be constructed on the Red Hill land, and an outlet to open space with headwall which 49 seems to be on the Garran land.

78. The applicant accepts that this infrastructure will be constructed and installed in a location that is more than 50 m from a residential block. However, it argues that

49 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [38]-[40] the definition of development extends beyond the immediate part of the land on which the work is to be performed, and that this is clear from section 14(1)(c) of the Planning Act, which includes in the concept of development ‘undertaking 50 work that would affect the landscape of the land’.

79. The applicant argues that the stormwater infrastructure generated by the retirement village development is intended to discharge water from the Red Hill block and across the Garran block within 50 m of a block in a residential zone, to a stormwater inlet located a matter of metres from the residential zone, and this will affect the landscape of this land. It is said that this means that the exemption requirement in paragraph (a) of item 3 is not met, and the applicant has standing 51 to challenge the approval.

80. The respondent argues that the location of the development activities remains the key test, not the downstream path of stormwater flows. All stormwater infrastructure forming part of the development proposal is located outside the 50 m setback. The fact that stormwater drainage ultimately enters an inlet near a residential block does not convert that land into part of the development site. In 52 any event the stormwater management plan shows a surface drainage flow line 53 to existing stormwater infrastructure.

81. The party joined agrees with the respondent. It says that the impact of development is not the same as the development itself. That impact can be taken into account in the decision on the proposal, such as water runoff as well as dust, 54 but such affects are not development. We note that traffic, noise, and shadowing are in a similar position.

82. The statement of David Consalvi provided by the party joined indicated that the development had been specifically designed for stormwater to rejoin existing pre-development drainage flow areas on the land. He also provided diagrams

50 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [38]-[40] 51 Outline of applicant’s submissions on jurisdictional question dated 20 March 2026 at [41]-[52] 52 T documents at page T 580 53 Respondent’s submissions on the preliminary question dated 25 March 2026 at [54] 54 Party joined’s submissions dated 26 March 2026 at [35]-[37] 55 developed by his project engineers. He said that these showed that there is no change to the existing stormwater landscape within 50 m of the residential zone south of the proposed development, rather the pre-development conditions are 56 preserved. He indicated that a principle of stormwater engineering and water 57 sensitive urban design is that the pre and post impacts need to be similar. He also drew attention to the DA which showed that generally runoff would be reduced by the development and we note the detention and retention systems 58 exceed government requirements.

83. An issue was also raised at the hearing whether, given some construction will take place very close to the 50 m zone referred to in item 3, it would encroach on the 50 m zone. The Tribunal is satisfied that that issue can be managed by the 59 developer.

Decision in relation to the development issue

84. The key provision is section 14(1)(c) of the Planning Act which provides that development means ‘undertaking work that would affect the landscape of the land’. All the parties agreed that any work would be undertaken further than 50 m from any block within a residential zone.

85. The applicant argues that under section 14(1)(c) an affect on the landscape is also development. This is not the ordinary meaning of the paragraph. Rather it is the undertaking work which is the development, and the affect on the landscape goes to the type of work involved. Such a reading follows the structure of the other paragraphs such as ‘building, altering or demolishing a building or other structure on the land’; it is the building, altering or demolishing which is the development, and the building or other structure which is built, altered or demolished.

86. A range of things done on the land may have a broader affect on a much wider area. Paragraph (c) does not make that affect of itself development, and therefore

55 Transcript of hearing dated 27 March 2026 at page 9 56 Statement of David Consalvi dated 26 March 2026 especially at [6] and [14] 57 Transcript of hearing dated 27 March 2026 at pages 22 and 25 58 T documents at page T2072; transcript of hearing dated 27 March 2026 at page 24; T documents at page T3655-T3656; transcript of hearing dated on 27 March 2026 at page 55 59 Transcript of hearing dated 27 March 2026 at pages 58-61 does not provide a basis for avoiding the exemption requirement. As the party joined argued, the decision maker can appropriately take into account any such affects in relation to the DA. Section 186 of the Planning Act provides for consideration of these, in particular: (e) the suitability of the proposed development in the context of the site and the site surrounds, including the permissible uses for those areas; (f) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts; … (h) any representation about the development application received by the territory planning authority and not withdrawn;

87. Also, item 3 does not catch a significant development requiring an environmental 60 impact statement (EIS).

88. At any rate the material before the Tribunal suggests that there will be no affect within the 50 m zone because the runoff will be less than or the same as before the development. Even if there is an affect because it is more or different, that runoff is not of itself development, that is, undertaking work, under section 14(1)(c) of the Planning Act.

89. In relation to this aspect of the case, the tribunal has considered a similar issue in a decision in relation to Friends of Federal Fairways Inc. v ACT Planning 61 Authority AT 7/2025. This Tribunal is not bound by this earlier decision, and has not considered itself bound by it, but rather has made full assessment of the matters before it in this case. After such consideration, we note that the decision in this case is generally consistent with the earlier decision.

90. In our view therefore it is unlikely that undertaking the development, in particular the drainage works, will affect the 50 m zone, or further down the hill, and at any rate such an affect is not part of the development for the purposes of the exemption requirement.

60 Transcript of hearing dated 27 March 2026 at pages 36-37 61 Transcript of hearing in Friends of Federal Fairways Inc v ACT Planning Authority AT 7 / 2025 dated 4 March 2026 at pages 28-32 Conclusion

91. Therefore, in our view all the exemption requirements are met, the applicant does not have standing to make the Application for review, and the Application for review should be dismissed. We make an order to this effect.

……………………………….. Senior Member R Orr PSM KC

Date of hearing: 27 March 2026 Counsel for the Applicant: J Bird Solicitors for the Applicant: Norton Rose Fulbright Counsel for the Respondent: J Larkings Solicitors for the Respondent: ACT Government Solicitor Solicitor for the Party Joined: MV Law Counsel for the Party Joined: P Walker SC and B Buckland