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Introduction

8. This is an application for review of a decision by a delegate of the ACT Planning and Land Authority (the Respondent or the Authority) to approve, subject to conditions, a Development Application (DA) by Mbark FGC Retirement Pty Ltd (Mbark or The First Party Joined) for the construction of a retirement village on land leased by the Federal Golf Club (FGC).

9. The FGC operates an 18-hole golf course located in Red Hill. The site for the proposed development is on its leasehold, at block 1 section 56 Red Hill and block 76 section 10 Garran.

10. On 8 May 2023 the Planning and Development (Plan Variation 384) Approval 2023 varied the Red Hill Precinct Map and Code of the Territory Plan to permit a retirement village for the area where the development is proposed and varied the Garran Precinct Map and Code to permit a road to provide access to a retirement village.

11. On 11 October 2023, Mbark submitted a DA to the Authority seeking approval of a proposed development at the FGC. The proposal was for construction of a 125-unit retirement village comprising 48 apartments in 6 buildings and 77 single story houses, together with construction of an access road.

12. The Authority requested further information in relation to the application. This was received in full by the Authority on 8 November 2023.

13. On 13 November 2023, the Authority commenced preliminary processes in relation to the DA. On 9 February 2024 Mbark paid the requisite planning fee as determined by the Authority. The Authority then accepted the DA as having formally been lodged. On 16 February 2024 the application was publicly notified. On 28 May 2024 Mbark submitted an amendment application. On 18 November 2024 the Authority granted conditional DA approval.

14. On 13 December 2024, the Friends of Federal Fairways Inc (the FFFI, or the Applicant) applied to the ACT Civil and Administrative Tribunal (ACAT) for review of the decision. The FFFI is an incorporated body that lists as its objectives uniting environmentalists, golfers, local residents and other Canberra citizens to: (a) protect the unique habitat that exists for native wildlife and endangered species on and around FGC; (b) preserve the fairways of FGC for golf and other compatible recreation; (c) prevent residential development on any fairways or other green open space of FGC; and (d) perpetuate the public right of access to the whole golf course granted to 1 the community under the original crown lease.

15. The Applicant has standing to apply to ACAT for review on the basis that it made representations to the Authority when the DA was publicly advertised.

16. At a Directions Hearing on 10 January 2025 the Tribunal approved the addition as parties to these proceedings of both Mbark (the First Party Joined) and the FGC (the Second Party Joined). The Tribunal notes that the Second Party Joined has an interest in, but has chosen not to take an active part in, the proceedings.

17. On 28 January 2025 the Tribunal heard an application (the preliminary question) that it should set the Authority’s decision aside because the DA had been approved under the wrong legislation: that it should have been assessed under the Planning Act 2023 (Planning Act) rather than the (now repealed) Planning and Development Act 2007 (the PD Act).Following that hearing, the Tribunal concluded that the amendment had been appropriately assessed under the correct legislation and advised that, given the time constraints on reaching a decision on remaining issues, the reasons would be included in this final decision.

18. Hearing of the remaining issues commenced on 1 April 2025 (following a site inspection the previous day) and continued over 5 days. The Applicant’s initial submission listed eight main issues for consideration, which it subsequently narrowed to five but with the addition of a fresh issue relating to compliance with

1 Applicant’s Reasons for Applying for Review dated 13 December 2024 rule 30 of the Red Hill Precinct Code. Those issues are considered below, preceded by the reasons for the Tribunal’s decision on the preliminary question.

The Preliminary Question

19. In its application for ACAT review, the Applicant submitted that approval of the DA should be set aside on the basis that it had been assessed under the wrong legislation. It drew attention to the fact that the PD Act, under which the DA had been assessed, had been repealed on 27 November 2023 and replaced by the Planning Act. Section 613 of the PD Act contained the following transitional provisions: (1) If, before the commencement day– (a) a person made a development application under the repealed Act, chapter 7 (Development approvals); and (b) the application has not been finally decided. (2) The repealed Act continues to apply in relation to the development application despite its repeal. (3) However, the development application may be amended under the repealed Act, section 144 only if the applicant asks for the amendment not later than 6 months after the commencement day.

20. The Applicant’s submissions on this issue revolved essentially around the meaning of the word “made”. The DA could not validly be assessed under the PD Act unless it had been made prior to its repeal. Even then, if Mbark wished to amend its proposal it was necessary for it to do so prior to the six-month cut-off 2 point under the transitional provisions (28 May 2024). The Authority’s Statement of Findings made reference to the fact that it had taken 11 October 3 2013 as the date when the DA was ‘created and submitted’. Yet the Authority’s accompanying Notice of Decision also stated ‘Application lodged: 4 9 February 2024/21 June 2024’. (9 February 2024 was the date that Mbark paid the application fee). The Applicant submitted that the DA had not been “made” until after the Planning Act had commenced, and that it should therefore have been assessed under the provisions of that Act. The Applicant submitted that this

2 It is common ground between the parties that because 27 May 2024 was a public holiday in the ACT, it should not be taken into account in calculating the 6-month period (Holidays Act 1958 s 3) 3 ACT Planning and Land Authority, Statement of findings dated 8 January 2025 at [2] 4 ACT Planning and Land Authority, Statement of findings dated 8 January 2025 [15] constituted jurisdictional error and was sufficient in itself for the approval of the DA to be set aside. In the alternative, the Applicant submitted that even if the DA had originally been submitted and made within time, the later amendment was 5 requested outside of the allowed six-month period.

21. Both the Respondent and the First Party Joined submitted (independently of each other) that the payment of the application fee was contingent upon the applicable charge being calculated by the Authority. They further submitted that there is no requirement in the ACT for applicable fees to have been paid in order for a DA to be validly “made”. They also contended that the request to amend the DA had 6 been lodged on 28 May 2024, prior to the six-month cut-off point.

Consideration

22. The Planning Act commenced on 27 November 2023. For the DA to be validly assessed under the PD Act, it needed to have been “made” before that date. In addition, any amendment to the original application would have needed to be asked for within 6 months of that date, that is, by 28 May 2024.

23. The terminology used in the PD Act is not particularly helpful, in that it variously included the terms “made” and “lodged”. It is not easy to determine whether the terms, where used, carry different meanings or may be applied interchangeably. In the hearing of this matter each of the parties drew attention, in one respect or another, to the NSW Court of Appeal decision in Hinkler v Sutherland Shire Council (Hinkler). In that case Preston J held that a DA is not “made” until all documents have been provided and fees paid: “A development application that is not accompanied by the information and documents required…and the payment of the fee required…is incomplete and ineffective to engage the power of the consent authority to grant consent to the development application. This means that the development application has not been “made” 7 …”

24. In considering what, if any, reliance should be placed on this decision, it is important to note a distinction between NSW law and that which applies in the

5 This alternative submission was subsequently not pressed by the Applicant 6 Tribunal Documents 275 7 Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150 ACT. Under the PD Act there was a requirement for necessary documentation to accompany a DA when submitted to the Authority, but no requirement to pay the applicable fee at the time of lodgement. In that regard, section 139(2)(d) of the PD Act provided that: ” if the application is for approval of a development in the merit track - [it must] be accompanied by information or documents addressing the relevant rules and relevant criteria.”

25. Taking account of the relevant legislation, the Tribunal is not persuaded by the Applicant’s contention that the DA was not “made” before the Planning Act commenced. It was accompanied by the documentation necessary for it to be assessed. There was no requirement for fees to be paid “up front”. The Tribunal prefers the view that the application was effectively made on the date on which all materials to complete the application was submitted online.

26. The Tribunal has also concluded that the request for an amendment to the DA was lodged by Mbark within the permitted timeframe, and that even with the requested amendment the application remained substantially the same as that originally applied for. Relevantly, section 144 of the DP Act provides that: (1) The planning and land authority may, if asked by the Applicant, amend a development application. (2) However, the planning and land authority must not amend the development application unless– (a) the authority is satisfied that: i. the development applied for after the amendment will be substantially the same as the development applied for originally; and ii. the assessment track for the application will not change if the application is amended.

27. The amendment that was requested involved removal of a proposed lease variation, leaving that matter to be dealt with under a separate application. In submissions during the hearing, the Applicant contended that the nature of the amendment was such as to render the DA substantially different from that originally applied for. The Tribunal is not satisfied that this was the case. Although the amendment removed the proposed lease variation from the DA, that variation still remained to be approved under a separate DA. It did not amount to a change that rendered the development applied for substantially different. The Tribunal also notes that the requested amendment was lodged on 28 May 2024, within the 6-month timeframe permitted under the transitional provisions in the Planning Act.

28. For the reasons outlined above, the Tribunal is satisfied that DA Number 202342264 was made prior to 27 November 2023, the commencement date for the Planning Act. It was therefore appropriate for the DA to be assessed under the relevant transitional provisions. The Tribunal turns now to the other issues in contention.

Whether the DA was properly signed and authorised

29. Section 139 of the PD Act provides that, if someone other than the lessee of the relevant land submits a DA, it must be signed by the lessee. The FGC is the lessee of the land in question. A Form 4 Authorisation was lodged by the Developer and signed by the (then) FGC President. The FGC is an incorporated company. The Applicant contends that pursuant to the Corporations Act 2001 (Cth) (the Corporations Act), where a company has more than one director, a person or entity (in this case, the Authority) should not assume that a document has been duly executed unless it is signed by two directors of the company in question (or one director and the company secretary). Because the Form 4 authorisation was signed only by one director of the FGC (the President), the Applicant argues that the Authority had no proper basis for assuming that the DA had been authorised by the lessee.

30. On the other hand, Mbark (or the First Party Joined) contends that the declaration on the lodged DA was submitted as an ‘Applicant/Lessee Declaration’, on behalf of both it and the FGC as lessee. Mbark could validly complete the declaration because it had been expressly authorised (in relation to the Form 4 letter) to act on the FGC’s behalf. Pointing to the fact that the Form 4 was signed by the club president, the First Party Joined further submitted that it is highly implausible that in completing the form, the President was acting outside of his authority. It referred inter alia to the fact that members of FGC had voted back in 2016 to enter into an agreement with Mbark to develop a retirement village, had consulted extensively with community groups since then, had supported a variation to the Territory Plan to enable the development to take place, and that the DA had been publicly notified. “It is impossible to imagine that this could have taken place and there not have been a dispute or issue raised at the Board level about the agreement 8 of the FGC to the development.”

31. The First Party Joined also argued that there was nothing in the FGC Constitution to prevent the President from signing the Form 4 Authorisation. It also pointed to the fact that at a later date the FGC Board had met and ratified the DA. It submitted that: “Ratification operates retrospectively. Its effect is that FGC’s authorisation is taken to be given from the time [the then Club President] signed the Form 4. The DA is therefore taken to have been validly “signed” 9 by the lessee from that time.”

32. The Respondent, in its submissions, drew attention to section 199(3) of the Legislation Act 2001 (ACT), which provides that: “If a law authorises or requires a signature by a person and the person is a body, the signature of a person authorised by the body for the purpose is taken to be the signature of the body.”

33. The Respondent also drew attention to the Electronic Transactions Act 2001, which provides that the requirement for a signature can be met for an electronic communication (such as the online lodgement of the DA) if the person’s consent to that use was communicated. On this basis, the Respondent submitted that the electronically submitted Form 4 Authorisation was the functional equivalent of a signature for the purposes of the PDA, and that the Authority was therefore entitled to assume that Mbark was properly authorised to sign the DA on the 10 FGC’s behalf. The Respondent further submitted that even if the Form 4 was not authorised by the FGC at the time the DA was lodged, that does not mean that it is invalid in circumstances where the directors of FGC have since resolved to ratify the decision and actions of the (then) President in signing the form. Consideration

34. The Tribunal’s consideration of this issue is set out in two parts. The first question is whether the Form 4 Authorisation was required to be signed by two directors

8 First Party Joined (Mbark’s) Closing Submissions [9] and [10] 9 Respondent’s Closing Submissions [14] (Relying upon FCT v Sara lee Household &Body (2000) CLR 520; Kiwi Brands v Commissioner of Taxation (1998) FCR 15; Diethelm v ACT Planning Authority [2024] ACAT 25) 10 Respondent’s Closing Submissions [9] and [10] of the FGC. The second is whether the DA is nonetheless valid in circumstances where the Directors of the FGC have since resolved to ratify the signing and lodgement of the form by the (then) President.

35. The Tribunal has concluded, on the first question, that the DA lodged on 11 October 2023 was not validly signed and authorised by the FGC. Although the Legislation Act provides that the signature of a duly authorised person can be 11 taken to be that of a body, and even though the Electronic Transactions Act 2001 allows for a person’s signature to be electronically communicated, in the Tribunal’s view that does not obviate the requirement for two signatures under the Corporations Act. Section 139 of the PD Act expressly provides that if a DA is made by someone other than the lessee of the land to which it relates, it must be signed by the lessee of the land. The lessee is the FGC. It is a registered company. It has more than one director. The Tribunal’s considered view is that pursuant to sections 127 and 129 of the Corporations Act, the DA was required to be signed by two FGC directors (or one director plus the company secretary). The fact that the form was submitted electronically does not alter the necessity to demonstrate the agreement of two directors. The Tribunal does not accept the Respondent’s contention that the FGC was not executing a document. In the Tribunal’s view, it was. The document was an application for planning approval that carried with it a statutory requirement to be validly authorised by the FGC as lessee. When the DA was lodged, the Authority had no proper basis for assuming that it had so been authorised.

36. The Tribunal next turns its attention to submissions by both the First Party Joined and the Respondent that even if the Form 4 was not authorised by the FGC at the time of the DA, it was subsequently “validated” by the actions of the FGC Board in resolving to ratify the actions of the (then) President in signing and lodging the form.

37. In closing submissions, the First Party Joined argued that if a principal ratifies the earlier act of a person acting as agent without authority, the ratification relates back to the date of the unauthorised act. The principal is thereby bound as if the

11 There is some dispute between the parties as to whether the President had been ‘duly authorised’ by the club, but it has not been necessary to reach a definitive conclusion on that point. 12 agent had acted with authority at the earlier time. This was characterised by the First Party Joined as the ‘rule of ratification’, drawing attention to its application 13 by higher courts in the context of income tax law, but also to a recent planning 14 matter considered by the ACAT in Diethelm v ACT Planning Authority. Without here outlining the full facts of the ACAT decision in Diethelm, suffice to say that the case involved the director of a company purporting to authorise a development application during a period when the company had been deregistered. Later, the director successfully applied for the company’s registration to be reinstated. The ACAT tribunal in that case held that the signature on the application was ‘ineffective’ at the date of lodgement and, in what it described as ‘unusual circumstances’, found that the lessee’s consent was able to be demonstrated as a result of the later reinstatement of registration. Rather than treat the lessee’s original consent as void, the tribunal preferred to characterise it as ineffective until the time that the company’s registration was 15 reinstated.

38. Referring to this decision, the First Party Joined submitted that in the present case the Authority should properly have treated (and the Tribunal, “standing in the Authority’s shoes”, should treat) the FGC board’s later decision to ratify the DA as evidence of FGC’s consent to the information contained in the DA when it was lodged. “Ratification operates retrospectively. Its effect is that FGC’s authorisation is taken to be given from the time [the then Club President] signed the Form 4. The DA is therefore taken to have been validly “signed” 16 by the lessee from that time.”

39. The Tribunal is not persuaded by this line of reasoning. We note that there are significant differences between Diethelm and the present case. Firstly, the company in Diethelm had only one director. The FGC has more than one. Secondly, the Tribunal in Diethelm agreed with a submission put to it that section

12 Citing FCT v Sara lee Household &Body (2000) CLR 520; Kiwi Brands v Commissioner of Taxation (1998) FCR 15; Diethelm v ACT Planning Authority [2024] ACAT 25 13 FCT v Sara lee Household &Body (2000) CLR 520; Kiwi Brands v Commissioner of Taxation (1998) FCR 15 14 Diethelm v ACT Planning Authority [2024]ACAT 25 15 Diethelm at [27] 16 Respondent’s Closing Submissions [14]. See also Transcript of Proceedings dated 9 April 2025, 139(2)(b) of the PD Act operated in a way that prevented “rogue applications” (for example, a party to a contract seeking to renege on undertakings it had knowingly entered into). We consider that in the circumstances of this case the requirement for two signatures under Corporations Act also serves to prevent a “rogue application” by a single director acting alone without the knowledge or agreement of other directors. That is not to say that this is what occurred in the present case, rather that the Authority should not have assumed that one signature was sufficient to evidence the FGC’s consent to the DA. The Tribunal is also cognisant of the time lag between the original application and the board’s purported ratification. Changes in board membership and/or in the views of individual Board members may have occurred over that time. In summary, the Tribunal considers that in order for the Authority to be satisfied that the FGC, as lessee, was in agreement to the information contained in the application, it needed to satisfy itself that at least two FGC directors had authorised that application.

40. Accordingly, the Tribunal is not persuaded that the Authority had adequate basis for assuming, at the time the application was lodged, that the FGC was in agreement to the information it contained. Nor is it persuaded that the FGC’s agreement can now be validly applied under the so-called ratification rule. DA 32342264 is thereby set aside and substituted by a decision to refuse approval.

41. Although it is not necessary to reach a final determination on the Applicant’s remaining contentions, for completeness the Tribunal nonetheless makes the following observations. Whether the DA was assessed in the correct track

42. The Applicant contended that the Authority assessed the DA in the wrong track, on the basis that the PDA does not permit a precinct code to do the work of 17 development tables.

43. Section 51 of the PDA provides that the Territory Plan must contain objectives for each zone, development tables and codes. The zone objectives set out general policy outcomes that are intended to be achieved in that zone. Development tables

17 Applicant’s Submissions in Reply at [24] set out the use or uses to which land in the relevant zone may be put, as well as identifying the codes against which development proposals for that zone should be assessed and the assessment track that should apply to a particular proposal. Precinct codes can set out requirements that apply to a specific site.

44. The Applicant’s submissions on this issue were based on the view that a precinct code cannot override the stated requirements of a development code. It stated that the development table for the zone in which the development is proposed to be located lists ‘retirement village’ as a prohibited development, and that a prohibited development can only be permitted if the crown lease permits the use and the development is assessed in the impact track. The Applicant contends that for the proposed development to be approved, it would first be necessary to vary the crown lease to permit a retirement village, then apply to have the DA assessed 18 under the impact track (not the merit track as occurred in this instance). Further, as the DA could not be assessed in the merit track, it was therefore incumbent 19 upon the Authority (and is now incumbent on the Tribunal) to refuse it.

45. In its response, the Respondent submitted that in fact a retirement village was not a prohibited development. “The PRZ2 Development Table provides that “retirement village” is prohibited development “unless the development is identified elsewhere in this development table as assessable under the code, merit or impact track”. The Development Table includes in the merit track section “development in a location and of a type identified in a 20 precinct map as additional merit track development.” “

46. The Respondent further submitted that the Planning and Development (Plan Variation 384) Approval 2023 had relevantly amended the Red Hill Precinct Code to permit “retirement village” as an additional merit track development. 21 Similar arguments were submitted by the First Party Joined.

18 At [25] - [27] 19 At [34] 20 Respondent’s Submissions dated 20 March 2025 at [37]-[39]; Respondent’s Closing Submissions dated 9 April 2025 at [14] 21 First Party Joined (Mbark’s) Submissions 14 March 2025 at [7] - [10]; Closing Submissions dated 9 April 2025 at [17] Consideration

47. The Tribunal agrees with the Applicant’s contention that a Precinct Code cannot override the provisions laid down in a Development Table and that to the extent 22 of any inconsistency between the two, the latter should prevail. Having said that, however, the Tribunal is not persuaded that in this case there is any inconsistency between the two. The applicable development table provides that development ‘of a type identified in a precinct map as additional merit track development’ is not prohibited and is to be assessed in the merit track. This is such a type. The Red Precinct Map and Code at Table 2 specifically describes ‘retirement village’ (PRZ2 Zone; MT2 label) as additional merit track development.

Compliance with zone objectives

48. The PD Act section 120(a) provides that in determining a DA in the merit track, the decision-maker is required to consider the objectives for the zone in which the development is proposed to take place.

49. The relevant zone objectives of the PRZ2 – Restricted Access Recreation Zone under the Territory Plan for this assessment were: (a) Accommodate facilities that will meet the recreational needs and demands of the community and are appropriately located for the potential users of the facility (b) Make provision for a range of sport and recreation facilities and users, whether in public or private ownership that may be commercial in nature (c) Ensure the amenity of adjoining development is not unacceptably affected by the operation of sport and recreation facilities, particularly in terms of noise, traffic, parking, privacy, and outside lighting at night (d) Design and landscaping of development is to be compatible with the surrounding landscape (e) Provide safe pedestrian and cycling access to recreation facilities to promote active living.

22 Planning and Development Act 2007 s 54

50. The Applicant asserted that the proposed development was ‘patently inconsistent’ 23 with the PRZ2 Zone Objectives. The Respondent, on the other hand, submitted that the outcomes of the zone objectives were considered and that the DA is 24 consistent with them. The Respondent also argued that: “Block 1 Section 56 Red Hill with the proposed development will continue to accommodate an 18-hole golf course consistent with its existing use. Furthermore, the DA will not cause the operation of the golf course to unacceptably affect the amenity of adjoining development. The design and landscaping of the development is compatible with the surrounding landscape and will not affect safe pedestrian and cycling access to the recreational facilities (i.e., the golf course). The DA was accompanied by 25 an Active Travel Plan.”

51. The Respondent and the First Party Joined pointed to the nature of zone objectives 26 in the Territory Plan, arguing they are simply matters for consideration. Furthermore, the First Party Joined argued: “even if the development were inconsistent with the objectives…that would not necessarily require ACPLA to refuse the application. It is simply a 27 matter to be considered.” Consideration

52. While the Tribunal’s determination of this application is based on the question of proper authorisation of the DA, we note for completeness that we would otherwise have been satisfied that the proposed development is consistent with the Zone Objectives. The development as proposed would not have been of a design that is incompatible with the primary purpose of facilitating or promoting sport and recreation in the zone. This view is informed in part by the nature of the proposed development and the way in which its design addresses considerations such as those described in the objectives including: (a) Impact on the amenity of adjoining development, (b) Compatibility of the Design and landscaping, with surrounding landscape

23 Applicant’s Submissions dated 27 February 2025 at [53] 24 Tribunal Documents 215-216 25 Respondent’s submissions dated 20 March 2025 at [64] 26 By reference to Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3 per Refshauge, Penfold and Burns JJ at [62]-[63]. 27 First Party Joined Submissions dated 14 March 2025 at [39] (c) Safety of pedestrian and cycling access.

Access and Mobility

53. Rule 33 the Red Hill Map and Precinct Code requires that the proposed development comply with the relevant provisions of Australian Standard AS 4299 Adaptable Housing (AS 4299); as well as the Access and Mobility General Code.

54. The Applicant contended that the proposed development had failed to demonstrate full compliance with the provisions of AS4299 given that: (a) an access consultant had identified areas that he believed did not fully comply with the requirements; and (b) the DA submission documents referred to certain aspects of the design as ‘capable of compliance’ (as opposed to actually compliant).

55. The First Party Joined relied upon a witness statement by another access 28 consultant who in evidence submitted that the finer details of a development such as power point locations etc are recognised as being inappropriate to form part of a DA, as they are not able to be known with precision until a later (building approval) stage Having regard to this evidence the First Party Joined argued that the submitted plans did in fact demonstrate compliance in so far as was necessary.

Consideration

56. On balance, the Tribunal considers it is reasonable at the DA stage to accept that certain details are demonstrated as capable of compliance and for appropriate conditions to be applied that are required to be satisfied at the later Building approval stage. It seems sufficient that certain aspects of a DA can be assessed as having the capacity to comply with a relevant standard, subject to the satisfaction of those standards being managed through appropriate conditions compliance with which will be subject to further checks at the later building approval. In that regard the Tribunal is satisfied that access and mobility provisions of the Territory

28 Ms Nicola Jackson Transcript of Proceedings dated 1 April 2025, pages 24 to55 plan were capable of being met and that conditions recommended by the Authority were sufficient and appropriate to ensure satisfactory compliance.

57. The Tribunal notes for completeness that during the course of the hearing the respondent indicated that it would be content for the imposition of the following modified conditions to add greater clarity to these issues: ‘Prior to a certificate of occupancy being issued the works must be certified by a qualified independent certifier as compliant with the following provisions: (a) AS 1428.1- 2009 Design for Access and Mobility, any relevant provisions of the Premises Standards 2010, and the Disability Discrimination Act 1992, as applicable; (b) AS 2890.6- 2009 and the National Construction Code, as applicable; (c) AS 1680.0 in respect of internal lighting along the whole of the continuous path of travel; and (d) All essential features identified in Appendix A “Schedule of features for adaptable housing” within AS 4299 Class C (Adaptable Housing).” Had the Tribunal approved the DA, it would have supported this position and provided appropriate recommendations to the Authority in that regard.

58. The Tribunal also notes that a specific concern was raised by the Applicant relating to access to golfer toilets in the residential facility of the development. As the proposed golfer's toilet was designed as part of the resident’s club facility, building requirements for accessibility standards are invoked. Based on evidence to the Tribunal it appears that there are a number of possible and acceptable solutions to this issue within the scope of the provisions including: (a) Establishment of an accessible pathway. (b) Internal access to the golfer’s toilet. (c) Potential exemption from accessibility provisions in relation to the access pathway given the circumstances of the design.

59. The Tribunal is satisfied that satisfactory access to the Golfer’s toilet by golfers using the course could be achieved through consideration of an appropriate condition by the Authority.

Other Code Requirements

60. The applicant initially made a number of different claims in relation to areas where it contended that DA was not compliant with particular codes. Ultimately only one matter was pressed at hearing, that being the claim that the development proposal did not satisfy the mandatory provisions of Rule 30 of the Red Hill Precinct Map and Code.

61. Element 9 (Environment) of the Red Hill Precinct Code includes the particular requirements for Rule 30 under the heading “Contamination”: “R30 An environmental assessment report for the development is endorsed by the Environment Protection Authority. Note: A condition of development approval may be imposed to ensure compliance with the endorsed site assessment report.”

62. Rule 30 is a mandatory rule. All parties noted and agreed that an initial environmental assessment report had been prepared by Lanterra Consulting 29 (Lanterra), titled ‘Preliminary Site Investigation. This was a desktop level investigation. The Lanterra report received conditional endorsement from the 30 Office of the Environment Protection Authority (OEPA) on 4 August 2023. The OEPA accepted and concurred with Lanterra recommendations for further investigation of identified areas of environmental concern by additional intrusive investigation.

63. The DA approval subsequently included two conditions (6a and 6b) that 31 implemented those recommendations. The Applicant asserted that the conditions precedent to approval had not been met. The Respondent and First Party Joined, on the other hand, claimed the relevant requirements had been fully satisfied. The fact that Lanterra recommended further investigation did not in their view preclude development approval being issued, rather this approach was

29 Dated 20 July 2023 30 Tribunal Documents 1307 31 Tribunal Documents 88 considered consistent with expectations outlined in the Code where a notation provides that: ‘A condition of development approval may be imposed to ensure compliance with the endorsed site assessment report.’ Consideration

64. The Tribunal acknowledges the Applicant’s contention that whilst an environmental assessment report had certainly been conducted, and endorsed by OEPA, there remained unresolved issues requiring substantial further investigation, and that these further investigations could potentially influence the ultimate outcome of the development. The Tribunal also notes, however, that the Lanterra report is a substantial report, drawing on available records and 32 research. It is evident that the Environment Protection Authority was sufficiently satisfied by the work conducted to recommend development approval with conditions. Whilst it may not be necessary to make a final determination on this issue, the Tribunal is supportive of the arguments presented by the Respondent that the Lanterra report was sufficient to satisfy Rule 30. Environmental Impact

65. As noted in the Tribunal’s orders, had the DA not otherwise been refused, it would have taken the decision to remit the DA to the Authority for further consideration, with an order that further advice be sought from the Conservator of Flora and Fauna (the Conservator). The following provisions of the PD Act are relevant in this regard. Section 119 provides that if a proposed development will affect a registered tree or declared site, the DA must not be approved unless such approval is consistent with the advice of the Conservator. Section 120(f) provides that when considering a proposal in the merit track the decision-maker must take into account the nature, extent, and significance of probable environmental impacts. Section 139(2)(e) provides that for a DA in the merit track, the DA that is lodged must be accompanied by an assessment of the extent and significance of possible environmental impacts.

32 Tribunal Documents 1275 – 1306

66. All parties to the hearing agreed that the Tribunal should give consideration to environmental issues under the provisions of Section 120(f). A considerable portion of the five-day hearing was therefore devoted to environmental issues.

67. When Mbark, the developer, submitted the DA it was accompanied by an environmental assessment. On 12 October 2022 the Conservator issued a conditional environmental significance opinion (ESO) in relation to the proposed retirement village, concluding that the development was unlikely to cause a 33 significant adverse environmental impact. It should be noted for the purposes of clarity that the Conservator’s ESO addressed a wider scope than simply the area of this DA, and included areas that would become subject to separate DAs.

68. During the hearing expert opinions were presented by both the Applicant and the First Party Joined relating to the possible impact on flora and fauna, including the nesting and foraging habits of endangered bird species, the number and nature of “hollow bearing trees”, and the number of regulated trees on and around the proposed development site. The Tribunal observed that there were notable differences of opinion between different witnesses on either side concerning, for example, the number of identified regulated trees, the height of certain trees, the nature and importance of tree hollows, the number of hollow-bearing trees that may be removed or affected by the development, the likely impact of removal, 34 and the level of future hollow supply.

69. The size and condition of hollows is recognised as being crucial to the current and future habitat of the endangered Gang Gang Cockatoo. Extensive evidence was received and considered by the Tribunal in relation to this issue, as well as on competing assessments in relation to the size, depth, character, and value of various hollows in trees in the development area.

33 The conditions imposed were those options be investigated to enhance the level of connectivity between the golf course and the Hughes-Garran Woodlands, and that proposed modifications to the adjacent Kitchener Street should enhance wildlife crossing infrastructure. (Tribunal documents 1415-1416). 34 The Tribunal notes that the different estimates to some extent result from the fact that there appears to be no internationally recognised definition of what constitutes a Hollow Bearing Tree. Nonetheless, the Tribunal considers the identification of nesting sites for endangered species to be important environmental concerns.

70. These competing assessments were reviewed and contested by reference to individual testimony and photographic evidence. Whilst it is not necessary for the Tribunal to form a definitive view as to the actual number of Hollow Bearing Trees on the development site, it is reasonable in our view to conclude that: (a) New and more detailed tree survey information for the development site is now available and it is valuable to the assessment of this DA. (b) The number of Hollow Bearing Trees of potential environmental significance that are proposed for removal appears to exceed the number described in the DA submission. (c) Further tree survey of potential HBTs should be considered. (d) The number of regulated trees appears to well exceed the number of 109 described in the DA submission.

71. The Tribunal further notes that the initial environmental assessment conducted by Mbark took place over a single day. Although an officer of the Conservator was present during that inspection, there were some 400 trees on or around the development site. In comparison, another arborist retained by the Applicant spent some 7 days inspecting the golf course and surrounds and described his assessment as ‘rushed’. The Tribunal is cognisant of the scope of the task in identifying the number and nature of trees on or around the development site that may have been relevant to the task. We are concerned that the additional information and advice that was adduced in the course of the hearing through the evidence of expert witnesses, along with details of more recent and detailed site surveys, is significant and, if available to the Conservator, may have resulted in the Conservator providing: (a) an ESO which was different in at least some respects from that issued in October 2022; and (b) advice as part of the assessment of the Development Application, which was different in at least some respects.

72. We note that the Gang Gang Cockatoo is listed in the endangered category of the threatened species list under the Environment Protection and Biodiversity 35 Conservation Act 1999 [Cwth] (EPBC Act) effective from 2 March 2022. We also note that the ACT is a recognised stronghold of the Gang Gang Cockatoo. Had we remitted this matter to the Authority, we would have recommended that further advice be sought from the Conservator, including consideration of further evidence and survey information presented at the hearing as well the conduct of any further surveys and assessments that may be deemed necessary. We would also have been minded recommending ongoing monitoring, for an appropriate period, specific to the Gang Gang Cockatoo in the area of the development site.

73. In summary, given the importance of assessing any likely adverse environmental impact and potential ramifications for endangered species, even if the Tribunal had not otherwise had cause to refuse the application it would have been inclined to remit the DA to the Authority. This would have entailed an order that the Conservator should be provided with all environmental opinions and evidence presented at the hearing, for further assessment. In the event the application had been remitted, that would in our view have allowed the Conservator and the Authority to review and reconsider the scope of the EPBC referral.

74. The Development Application is set aside and replaced with a decision to refuse the application. ………………..…………… Senior Member D Kerslake For and on behalf of the Tribunal

Date(s) of hearing: 14 April 2025 Counsel for the Applicant: Mr John Bird Solicitor for the Applicant: Mr H Kay, Terracon Legal Counsel for the Respondent: Mr John Larkings Solicitor for the Respondent: Mr S Tahir, ACT Government Solicitor Counsel for the First Party Joined: Mr Philip Walker SC and Ms Mei Ying Barnes Solicitor for the First Party Joined: Ms P Hall, MV Law Second party joined In person

35 https://www.environment.gov.au/biodiversity/threatened/species/pubs/768-conservation-advice-02032022.pdf