GUNGAHLIN GOLF INVESTMENTS PTY LTD v ACT PLANNING AND LAND AUTHORITY

……………………… Senior Member R Orr PSM KC For and on behalf of the Tribunal AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 49/2025

BETWEEN: GUNGAHLIN GOLF INVESTMENTS PTY LTD Applicant

AND:

TERRITORY PLANNING AUTHORITY Respondent

TRIBUNAL: Senior Member R Orr Senior Member A Wilson

DATE: 20 August 2025 ORDER 1. The Tribunal orders that the decision under review is set aside and remitted for reconsideration by the Respondent with directions that: (a) the development application be decided under the Planning and Development Act 2007; and (b) the Respondent assess the development application on the basis that the Tribunal found the development application, as presented at the hearing of this matter, was not for a prohibited development.

…………… …………… Senior Member R Orr PSM KC For and on behalf of the Tribunal AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 52/2025

BETWEEN: GUNGAHLIN GOLF INVESTMENTS PTY LTD Applicant

AND:

TERRITORY PLANNING AUTHORITY Respondent

TRIBUNAL: Senior Member R Orr Senior Member A Wilson

DATE: 20 August 2025 ORDER 1. The Tribunal orders that the decision under review is set aside and remitted for reconsideration by the Respondent with directions that: (a) the development application be decided under the Planning and Development Act 2007; and (b) the Respondent assess the development application on the basis that the Tribunal found the development application, as presented at the hearing of this matter, was not for a prohibited development.

…………… …………… Senior Member R Orr PSM KC For and on behalf of the Tribunal REASONS FOR DECISION Introduction 1. These proceedings concern three decisions made by the Planning and Land Authority (respondent or Authority) concerning development applications (DAs) by Gungahlin Golf Investments Pty Ltd (applicant or Gungahlin Golf Investments) for land at Nicholls which is used as a golf course and for related activities.

2. The applicant lodged DA 202342167 on 10 November 2023. This was for the construction of Stage A for ‘Commercial Accommodation Use (68 commercial accommodation units meeting the definition of “Motel” as per the Crown Lease)’. On 9 April 2025 the respondent refused that development application (Stage A).

3. The applicant also lodged DA 202342168 on 10 November 2023. This was for the construction of Stage B ‘Commercial Accommodation Use (128 commercial accommodation units meeting the definition of “Motel” as per the Crown Lease. On 9 April 2025 the respondent refused that development application (Stage B)

4. The applicant also lodged DA 202342173 on 10 November 2023. This was for the construction of Stage G ‘Commercial Accommodation Use (68 commercial accommodation units meeting the definition of “Motel” as per the Crown Lease’. 1 The reference to 68 units should have been to 78. On 17 April 2025 the respondent refused that development application (Stage G).

5. The applications were considered under the Planning and Development Act 2007 2 and Territory Plan 2008. The Tribunal’s consideration continues to be under that legislation and Plan.

6. The three decisions were all similar in their terms. In summary, the basis for the decisions was that various factors suggested that the DAs were not for a motel or commercial accommodation development. The Authority thought that the developments were rather for multi-unit housing for residential use. As such they were prohibited developments under PRZ2 – Restricted Access Recreation Zone

1 Statement of Petrus van der Walt dated 1 June 2025 at [9] 2 Section 613 of the Planning Act 2023 3 of the Territory Plan 2008 made under the Planning and Development Act. The Authority concluded that as the DAs were made in an assessment track other than the track for the proposals, the applications were required to be refused under 4 section 114(2) of the Planning and Development Act.

7. The applicant seeks review of these three decisions in the tribunal, and lodged Applications for review dated 7 May 2025 in relation to the Stage A decision, 7 May 2025 in relation to the Stage B decision, and 15 May 2025 in relation to the Stage G decision (Applications for review). The grounds of review were that the respondent erred in finding that the DAs were not capable of approval and that section 114 of the Planning and Development Act required that they be refused. The correct and preferable decisions were rather said to be that the DAs were capable of approval under section 162, that they were suitable for approval, and that the respondent’s reasons for refusing can be appropriately dealt with by way of conditions of approval.

8. There are three decisions, three applications for review and three proceedings: AT 48/2025 concerning Stage B (DA 202342168); AT 49/2025 concerning Stage A (DA 202342167); and AT 52/2025 concerning Stage G (DA 202342173). The Tribunal ordered that the three proceedings be heard together. At the hearing of this matter, for convenience, the applicant focused on the Stage 5 A decision challenged in AT 49/2025, and the Tribunal does the same unless otherwise noted.

Summary of this Tribunal decision

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

10. The primary documents in the DAs make it clear that the proposal is for commercial accommodation which is a motel. This is confirmed by the answers to questions provided by the applicant. Just looking at this material, there is no basis for thinking that the application is for anything other than commercial accommodation which is a motel.

3 Notices of decisions, pages 2-5 4 Statements of reasons at [39] 5 Transcript of proceedings on 24 July 2025 at page 9

11. Some of the reports attached to the application use a range of terminology which is unclear as to the purpose of the development, or suggest it is for residential purposes. However, none of these clearly override the terms of the primary documents. Further, the answers to the questions state that these statements should not be taken to construe the intention of the development.

12. The features of the proposal raised by the respondent are not inconsistent with the Crown lease nor the Territory Plan. Further, as the applicant argued, these features can be consistent with a modern motel.

13. We do not think it is appropriate to reject the proposal on the basis of the possibility that it might not be built or used for commercial accommodation. This possibility can be addressed by significant regulatory mechanisms.

14. If the concept of motel in the Territory Plan picks up the Macquarie Dictionary definition of ‘roadside hotel which provides accommodation for travellers in self-contained, serviced units, with parking for their vehicle’, then this is also picked up by the use of the term in the DAs.

15. Therefore in our view the DAs were for commercial accommodation which is a motel. As such they were not for a prohibited development under PRZ2 – Restricted Access Recreation Zone of the Territory Plan and could be dealt with in the merit track. For this reason, the decisions should be set aside.

16. This is not to say that the proposals should or could have been approved. Decisions need to be made in relation the DAs under section 162 of the Planning and Development Act.

17. The parties agreed that the decisions should be remitted to the respondent to be made again in accordance with this decision. The Tribunal agrees that this is a suitable course and has made orders accordingly. Nature of this review

18. The parties accepted that the tribunal has jurisdiction to hear the Applications for 6 review. The respondent did not raise any issue in this regard.

19. The decisions to refuse the development applications are subject to merits review in these proceedings, in which the Tribunal is looking for the correct and preferable decision. Under section 68(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), in such review proceedings the Tribunal must (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and (i) make a substitute decision; or (ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

Tribunal process

20. The Applications for review had attached to them the Notices of decision (Notices of decision).

21. The respondent also provided amended Statements of reasons dated 10 June2025 (Statements of reasons) (exhibits R1, R2 and R3).

22. The extensive T documents were provided by the respondent (T documents).

23. A directions hearing was held for the matters on 4 June 2025. At the directions hearing, the Tribunal ordered that the three proceedings be heard together. Further, the Tribunal noted that there were two main issues in each of the proceedings: (a) whether the relevant development applications are for a prohibited development under PRZ2 – Restricted Access Recreation Zone of the Territory Plan 2008 made under the Planning and Development Act, and therefore cannot be approved by the respondent or the Tribunal (prohibited development issue); and (b) if the development applications are not for a prohibited development, whether the Tribunal should make a substitute decision and approve the

6 Transcript of proceedings on 24 July 2025; Statement of reasons at [21]; Planning and Development Act, sections 407, 408A and Schedule 1 development applications subject to conditions, or make any other order (approval issue).

24. The Tribunal determined that it would consider the prohibited development issue first, and made orders for the consideration of the prohibited development issue for the three proceedings. It noted that, if necessary, orders would be made in relation to the approval issue after the determination of the prohibited development issue.

25. The applicant filed submissions on the prohibited development issue dated 1 July 2025 (Applicant’s submissions). The applicants also tendered witness statements of John Konstantinou dated 1 July 2025 (exhibit A1) and 23 July 2025 (exhibit A2), and Petrus Johannes van der Walt dated 1 July 2025 (exhibit A3) and a bundle of documents (exhibit A4). The statements were objected to by the respondent, but were accepted as evidence subject to relevance.

26. The respondent filed submissions on the preliminary issue dated 16 July 2025 (Respondent’s submissions).

27. The Tribunal conducted a hearing of this matter on 24 July 2025. The Tribunal made orders on 20 August 2025. These reasons provide the basis for those orders.

28. The Tribunal has taken into account all the material provided to it by the parties.

The proposal

29. The relevant Crown lease is for block 14, section 86, Nicholls (land) and was granted on 1 December 2014. The purpose clause for the lease provides: (a) To use the premises for the purpose of an outdoor recreation facility that must consist of a golf course with grassed greens and a minimum of eighteen (18) holes that may include practice fairways and putting greens; AND IN ADDITION, only the part of the premises at Block 14 Section 86 Division of Nicholls identified by cross-hatching on the plan at Attachment 1 may also be used for one or more of the following purposes: (i) commercial accommodation use LIMITED TO guest house, hotel and motel; (ii) indoor recreation facility; (iii) outdoor recreation facility; and (iv) club and/or child care centre, ANCILLARY TO outdoor recreation facility and/or indoor recreation facility; ...

30. ‘Commercial accommodation use’ is defined to mean ‘commercial accommodation unit, guest house, hotel, motel, serviced apartment, and tourist resort, but does not include caravan park/camping ground or a group or organised camp’ (emphasis added) and ‘motel’ is defined to mean ‘the use of land for one or more commercial accommodation units and where the units are provided with convenient space for parking of motor vehicles. It may also include associated facilities such as a restaurant, bar or functions room, which may be used by the occupants of the premises, but which are also available for use by non occupant members of the public. A motel may be licensed under the Liquor Act 2010’ (emphasis added). A ‘commercial accommodation unit’ is defined to mean ‘a room or suite of rooms that is made available on a commercial basis for short-term accommodation. A commercial accommodation unit may comprise a dwelling but not a room or suite of rooms within a dwelling. It does not include any associated facility such as a restaurant, bar, or functions room, which may be used by the occupants of the premises but, which is also available for use by non occupant members of the public’.

31. These provisions indicate that the Crown lease allows the land to be used for a commercial accommodation use, that is a motel, and that this concept involves convenient space for parking for motor vehicles, possibly with associated facilities, provided on a commercial basis, for short-term accommodation.

32. Mr Konstantinou gave evidence that as part of his company’s offer to buy this land in about 2005, he sought that the Crown Lease be amended to allow for commercial accommodation use and advised the ACT government that it intended to develop the site to provide short term accommodation for interstate 7 golf participants in order to increase the patronage.

33. The land contains an 18 hole golf course, driving range, practice holes and other facilities.

34. To pursue the development of this land, the applicant arranged for the preparation of a ‘Gold Creek Master Plan’ for its property which involved eight stages and eight development applications for 694 commercial accommodation units. In light of a lease variation decision, the development applications for stages C-F and H were withdrawn on 28 January 2025. The three remaining development 8 applications, the subject of these proceedings, proceeded. This late withdrawal of five of the applications may explain some of the issues with the material in the three remaining applications.

Territory Plan requirements

35. Section 139 of the Planning and Development Act contains requirements for development applications. The form for the applications made in these proceedings included a declaration that ‘all the information given on this form 9 and its attachments is true and complete’.

36. Sections 113 and 114 provide in part: 113 Relationship between development proposals and development applications (1) A person who has a development proposal may apply to the planning and land authority for approval to undertake the development proposed. (2) The determination of which assessment track applies to a development proposal is made by reference to circumstances when the application is made. … (4) If an assessment track applies to a development proposal, the proposal is in that assessment track and that track must be followed in assessing the development application for the proposal.

7 Statement of John Konstantinou dated 23 July 2025 at [4]-[5], and attachment 8 Statement of John Konstantinou dated 1 July 2025 at [20]-[26]; documents in relation to the withdrawals in exhibit A4 9 T documents page 1559 in AT 48/2025 … 114 Application of assessment tracks to development proposals (1) The development table sets out the criteria to allow the assessment track for a development application for a development proposal to be worked out. (2) To remove any doubt— (a) the planning and land authority may refuse to accept a development application made in an assessment track other than the assessment track for the development proposal; and (b) if the authority assesses a development application made in an assessment track other than the track for the proposal, the authority must refuse the application. PRZ2 – Restricted Access Recreation Zone of the Territory Plan 2008

37. The relevant provisions of the Territory Plan are PRZ2 – Restricted Access Recreation Zone of the Territory Plan 2008.

38. Zone Objectives are set out. This includes: (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. …

39. PRZ2 – Restricted Access Recreation Zone provides under the heading ‘Minimum Assessment Track Merit’ that: ‘Development listed below requires a development application and is assessed in the merit track, unless specified in schedule 4 of the Planning and Development Act 2007 (as impact track) or specified as prohibited development in a precinct map’. Under the heading ‘Development’ are listed ‘guest house’, ‘hotel’, and ‘motel’.

40. There is then a heading ‘Minimum Assessment Track Impact’. Then a section headed ‘Prohibited Development’, which begins: ‘Development listed below is prohibited development unless the development is identified elsewhere in the development table as assessable under the code, merit or impact track’. The list includes: ‘boarding house’, ‘caravan park/camping ground’, ‘mobile home park’, ‘RESIDENTIAL USE’, ‘restaurant’, and ‘retirement village’.

41. There is then a Note which provides: ‘Some development that would otherwise be prohibited may be assessed under the merit track if they can be defined as ancillary, minor or temporary use. For example, a restaurant alone is prohibited, but could be considered if it is ancillary to a club which is an assessable development under the merit track’.

Definitions

42. The Territory Plan contains Definitions that operate on these provisions. In Part A, Definitions of development, under Commercial accommodation use, ‘motel’ is defined as: … the use of land for one or more commercial accommodation units and where the units are provided with convenient space for parking of motor vehicles. It may also include associated facilities such as a restaurant, bar, or functions room, which may be used by the occupants of the premises but, which are also available for use by non occupant members of the public. A motel may be licensed under the Liquor Act 2010.

43. ‘Commercial accommodation unit’ is defined as: … a room or suite of rooms that is made available on a commercial basis for short-term accommodation. A commercial accommodation unit may comprise a dwelling but not a room or suite of rooms within a dwelling. It does not include any associated facility such as a restaurant, bar, or functions room, which may be used by the occupants of the premises but, which is also available for use by non occupant members of the public.

44. In Part B, Definition of terms, ‘dwelling’ is defined to have the same meaning as in the Planning and Development Regulation 2008. This provides that dwelling: (a) means a class 1 building, or self-contained part of a class 2 building that – (i) includes the following that are accessible from within the building, or the self-contained part of the building: (A) at least 1 but not more than 2 kitchens; (B) at least 1 bath or shower; (C) at least 1 toilet pan; and (ii) does not have access from another building that is either a class 1 building or the self-contained part of a class 2 building; and (b) includes any ancillary parts of the building and any class 10a buildings associated with the building.

45. In Part A, Definitions of development, ‘Residential use’ is an umbrella term which includes definitions of caretaker’s residence, co-housing, multi-unit housing, residential care accommodation, retirement village, retirement village scheme, secondary residence, single dwelling housing and supportive housing.

46. ‘Multi-unit housing’ is defined in the Definitions as: … the use of land for more than one dwelling and includes but is not limited to dual occupancy housing. 10

47. In Quanton Pty Ltd v ACT Planning and Land Authority, the ACT Supreme Court discussed these various definitions in the Territory Plan. This decision concerned provisions in a Crown lease, but the approach taken is in our view relevant to the consideration of similar terms in the Territory Plan. The Court stated: [91] The following appear in the list of prohibited developments together with a large number of other items: "commercial accommodation unit" and "serviced apartment". [92] It is immediately apparent from the above summary that there is, in the scheme created by the Territory Plan, a clear distinction between residential multi-unit housing and the use of a building for serviced apartments. The latter is a sub-category of Commercial accommodation use. The description of Commercial accommodation unit in the Part A definition table specifically refers to the concept of “a room or suite of rooms that is made available on a commercial basis for short-term accommodation” (emphasis added). [93] It is thus clear that contrary to the submission of the parties, if the Tribunal was entitled to have regard to the Territory Plan in construing the Crown Lease it was required to consider the temporal aspect of the accommodation provided by Quanton to its customers. It is also clear that the residential use and use for serviced apartments were mutually exclusive, subject to an approval for the latter given by the Authority having regard to an application made under s 137 of the PDA and an impact track assessment.

10 [2021] ACTSC 139 … [95] … it seems to me that the Tribunal directed itself correctly in concluding that the assessment of use here was a matter of “fact and degree” … and that it was necessary to consider the “predominant” use of the land …. [96] Having regard to the findings made by the Tribunal … it was open to it, in my view, to conclude that the building on the land was being used for serviced apartments, as that term is used in the Territory Plan. It followed, having regard to the logic of the Territory Plan itself, that such a use was not a residential use and indeed was a prohibited use for land in zone RZ5.

48. This discussion suggests that in the Territory Plan there is a clear distinction between residential use, which includes multi-unit housing, on the one hand, and commercial accommodation use, which includes guest houses, serviced apartments and motels, on the other. The description of commercial accommodation use specifically refers to the concept of “a room or suite of rooms that is made available on a commercial basis for short-term accommodation”. It is a matter of assessment based on fact and degree to determine what is the proposed use.

49. If the units here are a room or suite of rooms that are made available on a commercial basis for short-term accommodation, comprising a dwelling, and where the units are provided with convenient space for parking of motor vehicles, and may also include associated facilities, they can constitute a motel and commercial accommodation units and are allowed under PRZ2 – Restricted Access Recreation Zone of the Territory Plan subject to assessment on the merit track.

Decisions

50. As noted above, in summary, the basis for the decisions was that various factors suggested that the DAs were not for a motel or commercial accommodation units. The Authority thought that the development was rather for multi-unit housing for residential use. As such they were a prohibited development under PRZ2 – Restricted Access Recreation Zone of the Territory Plan 2008 made under the 11 Planning and Development Act, and therefore cannot be approved.

11 Notices of decisions, pages 2-5

51. The Statements of reasons for the decisions provided as follows: [35] The proposed development was submitted as motel/commercial accommodation in regard to the use. However a number of features and supporting documents raise significant doubt as to whether the development aligns with this use. Key concerns include the presence of long-term accommodation features such as allocated visitor parking, mailboxes, and the absence of typical motel facilities like check-in area, service vehicle access, and short-term parking. Additionally, the internal layout, unit diversity, and inclusion of courtyards were assessed as more consistent with multi-unit residential housing rather than with a motel style configuration. [36] The supporting documentation provided in the DA package further reinforces this inconsistency. … These documents assess the proposal against residential standards and terminology rather than those applicable to commercial accommodation… [37] While no single element is determinative, the cumulative effect of the development’s features and documentation leads the Authority to conclude that the proposal does not constitute a motel or commercial accommodation use. … [39] As the Authority concluded the development application was made in the assessment track other than the track for the proposal, the application was required to be refused (section 114(2)(b)). This is due to residential use (multi-unit housing) not being a permissible use and being a prohibited development within the PRZ2 zone …

52. The respondent maintains this position in these proceedings. In summary, the respondent argues that the documentation underpinning the DAs describes the development as a ‘built to rent scheme’ which the supporting information defines as properties constructed for rental purposes, and nothing in that material suggests short-term accommodation. To the contrary, the objective flavour of the proposal 12 is that the proposed accommodation is for residential use.

53. As noted, the applicant challenges this decision on the basis that the respondent erred in finding that the development application ‘was not capable of approval’ and that section 114 of the Planning and Development Act required that it be refused. They said that this error was the result of the respondent incorrectly characterising the nature of the proposed development, and consequently determining that the development application had been submitted in the wrong

12 Respondent’s submissions at [69]-[75] assessment track. The correct and preferable decisions were rather said to be that the DAs were capable of approval under section 162, that they were suitable for approval, and that the respondent’s reasons for refusing can be appropriately dealt 13 with by way of conditions of approval.

54. The applicant argues that the development is for motel use, and this is readily apparent from the DAs and the information provided during the assessment process. The actual and objective intent is not displaced by elements of the development which the respondent considers are more aligned to residential use. Erroneous references to residential or similar terms in supporting reports does not mean that a prohibited development is proposed, and the applicant expressly communicated this to the respondent. Neither the Crown lease nor the Territory Plan impose requirements as to the configuration of commercial accommodation units. In effect, many of the elements which concerned the respondent, such as the configuration, mail boxes, lack of a check-in facility, and extra parking were consistent with a modern motel. Any apprehension that the potential use would be inconsistent with the Crown lease and the Territory Plan could be addressed 14 by the significant regulatory regime to which the development would be subject.

DA documentation

55. To resolve this dispute, it is necessary to have regard to the terms of the DAs.

56. The documentation in these matters is vast; each matter has T documents of about 2,500 pages. As noted, we focus on the Stage A decision and AT 49/2025.

57. The DA for Stage A is for: ‘Design and siting for Stage A in the Gold Creek Master Plan which consists of the development of a total of 68 commercial 15 accommodation units …’. The proposed use of the land is ‘Commercial Accommodation Use (68 commercial accommodation units meeting the 16 definition of “Motel” as per the Crown Lease)”. The type of development is said to be ‘Non-Residential (including Commercial and Industrial)’. The Statement against relevant criteria for Stage A is headed ‘Commercial Accommodation

13 Applications for review of decision, reasons for applying 14 Applicant’s submissions at [44]-[66] 15 T documents page 1576 in AT 49/2025 16 T documents page 1577 in AT 49/2025 17 Project – Stage A’. The document for Stage B refers to ‘Commercial Accommodation (Build-to-Rent (BTR)’, but the general heading is ‘Commercial 18 Accommodation Project Stage B’. As we have noted commercial accommodation use and units are terms used in the Territory Plan with a clear meaning. It is unclear what build-to-rent means but we do not think it detracts from the characterisation of the proposals as ones for commercial accommodation.

58. The notice to property owners referred to commercial development and 19 commercial accommodation units, and the notice on the property referred to 20 commercial development and 68 commercial accommodation units.

59. In our view this principal documentation is clearly for commercial accommodation, that is a motel.

60. The respondent refers to a range of references in ‘supporting information’. One 21 is the Accessible Housing Report. The respondent states that the report ‘refers to adaptable housing, a feature associated with residential considerations’. The report is concerned in part with compliance with the Disability Discrimination Act 1992, which applies to residential and commercial accommodation.

61. The respondent notes correctly that the report states that this is a built to rent 22 project. The full statement is: ‘The concept of the Adaptable Housing Code is to provide guidance for adaptable housing provisions that can be modified easily in the future to become accessible to both occupants and visitors at minimum cost. The subject development is a “built to rent” commercial accommodation which requires a ratio of units/dwellings to be design [sic] as fully accessible 23 accommodation …’. This more complete quote shows that the report is dealing generally with accessibility issues, which can arise in residential or commercial

17 T documents page 1716 in AT 49/2025 18 T documents pages 1721 and 1732 in AT 48/2025 19 T documents page 1504 in AT 49/2025 20 T documents page 1563 in AT 49/2025 21 Notice of decision for AT 49/2025, page 4 of 28; Respondent’s submissions at [40]; Applicant’s submissions at [62]-[64] 22 Notice of decision for AT 49/2025, page 4 of 28 23 T documents page 1618 in AT 49/2025 premises, and that the description used is ‘“built to rent” commercial accommodation’. The respondent argues that built to rent is an unclear concept, but in this context it is used with the concept of commercial accommodation.

62. The full context of this report also reveals that it is considering the original full 24 proposal comprising stages A, B, C, D, E, F, G, and H and a total of 701 units.

63. The respondent also points to a range of other reports where the terminology used is at least confusing. This includes the Traffic Impact and Parking Assessment which states that ‘the proposed development will consist of 694 commercial residential units in a built-to rent model’, and where the assessment is against 25 residential elements rather than commercial accommodation elements. . This Report states that the proposed development will consist of ‘694 Built-to-rent residential units and ancillary commercial tenancies, intended to support the residential use of the site,’ and ‘the development will be a commercial build-to-rent residential units, providing long-term residential accommodation, parking for the units has been assessed in accordance with the Territory Plan’s Parking and Vehicular General Access Code (PVAGC) Section 3.1.5 requirements for 26 apartments in residential zones’. Again, this is in part confusing, referring to ‘commercial residential units in a built-to rent model’, and in part clearly suggesting a residential use.

64. The respondent also refers to the Listening Report which describes the 27 consultation that occurred with the community in June and August 2023. This Report also deals with the original full development proposal. It begins by referring to ‘commercial-accommodation/build to rent precinct’ and ‘high quality 28 commercial accommodation types’. The quotes in the Respondent’s submissions appear to be from the section headed Supporting information, presenting evolving material providing information about the development,

24 T documents page 1630 in AT 49/2025 25 Notice of decision for AT 49/2025, page 4 of 28; Respondent’s submissions at [39] 26 T documents pages 1933-1934 in AT 49/2025; Notice of decision for AT 49/2025, page 4 of 28; Respondent’s submissions at [39] 27 T documents pages 1676-1689 in AT 49/2025; Respondent’s submissions at [37]; Applicants submissions at [62]-[64] 28 T documents pages 1677 in AT 49/2025 29 which is hard to read in the form provided, not the Report itself. It is said to state: ‘This build-to-rent development complies with existing zoning requirements …’ This comment is not a problem and reflects the applicant’s position. It then apparently says: ‘Build-to-rent properties are designed and constructed for rental properties, offering additional ancillary amenities and company facilities’. The meaning of build-to-rent properties is unclear; the applicant argued that it is possible to have short-term rentals. It then says: ‘Currently there are limited apartments within Nicholls. The proposed development provides alternative accommodation and enables downsizers to remain in the suburbs’. This clearly suggests a residential use.

65. The applicant argues that any erroneous terms used in these reports did not reflect the nature and intent of the proposed development, and cannot alter the legal status of the DAs, so as to give rise to an inconsistency with the Territory Plan. Rather, those reports should be read subject to and consistent with the DAs and 30 their stated purpose of motel commercial accommodation.

Features

66. The respondent also noted a number of features which it was said were inconsistent with commercial accommodation. This included the number and provision of visitor parking, the presence of mailboxes, the lack of dedicated areas for servicing of a motel including delivery/service vehicle parking, cleaning rooms or similar storage and maintenance facilities, the lack of check-in facility or similar, the lack of identified temporary short term parking, the internal layout, 31 unit diversity, and inclusion of courtyard. There was also said to be a lack of 32 associated facilities such as restaurants.

67. The respondent’s decision stated that: ‘The layout including bedroom and living arrangements, diversity of units, provision of parking and courtyards, are

29 Respondent’s submissions at [37]; T documents pages 1682-1683 in AT 49/2025 30 Applicant’s submissions at [62]-[66] 31 Notice of decision for AT 49/2025, pages 3-4 of 28; 32 Notice of decision for AT 49/2025, page 3-4 of 28 considered more commonly associated with residential use/multi housing 33 development rather than motel accommodation’.

68. The applicant notes that none of these features are inconsistent with the Crown Lease nor the Territory Plan. Further, these elements are in effect consistent with a modern motel. Mailboxes can support key collection and delivery of notices. The occupant’s luggage can be stored within the unit. Administration can be undertaken off-site or remotely. Technological advances enable check-in and customer service functions to be carried out online or remotely. Also, notwithstanding these comments, there is an ancillary flexible space available for 34 these functions to be performed on site. The applicant noted that there is a restaurant at the golf club. Provision of bedroom and living arrangements, diversity of units, and courtyards reflects modern demands for more comfortable 35 accommodation.

69. The applicant argued that these elements are not inconsistent with the requirements for the permissible use of commercial accommodation, which is a motel, nor consistent only with an impermissible residential use. It is irrelevant that the respondent found the components of the development are unnecessary, that the usual features of a traditional motel are absent, and that there is no 36 provision for permissible but not mandatory associated facilities.

Questions and answers

70. The respondent raised a number of these issues in questions posed in an email of 37 20 February 2024.

71. The respondent pointed to the significant delay in the applicants’ providing answers to these. This is noted, but does not prevent the respondent or the Tribunal from having regard to them. The respondent also argued that it may not be possible to have regard to these because the determination of which assessment

33 Notice of decision for AT 49/2025, page 4 of 28; see also Statement of reasons for AT 49/2025 at [36] 34 Applicant’s submissions at [57]-[59] 35 Applicant’s submissions at [57]-[59] 36 Applicant’s submissions at [57]-[59] 37 T documents pages 257-258 in AT 49/2025 ; Respondent’s submissions at [47]-[54]; Applicant’s submissions at [57]-[59] track applies to a development proposal is made by reference to circumstances when the application is made under section 113(2). In Ginninderra Falls 38 Association v ACT Planning and Land Authority Presidential Member McCarthy and Senior Member Davey said that what circumstances the section was talking about is difficult to answer in the abstract, should be decided on a case by case basis, but what is clear is that it does not permit reference to facts or circumstances arising after the application is made. The answers provided here do not go to facts or circumstances arising after the applications were made. They go to explaining the application. Section 141 provides a formal process for requiring information, and failure to comply with such a request enables the respondent to refuse the application. It does not seem that this formal process was 39 used here. We do not think that the existence of this formal process prevents the Authority using a more informal process. We do not think the answers amend the 40 applications. It may be that the answers suggest, as we discuss below, that the 41 original application was deficient in some way. In our view the answers could be taken into account by the Authority as decision-maker, and by this Tribunal on review.

72. Question 3 noted that several typical motel elements are not observed in these proposals, such as motel reception, motel customer lobby, luggage storage, and administration offices. The applicant responded by noting the definition of motel set out above and that the typical motel elements identified are not obligatory facilities enforced by the definition, or any other provision of the Plan. Furthermore, technological advances enable check-in and customer service functions to be carried out indirectly (i.e. online/remotely). It is expected that an occupant’s luggage will be stored within the commercial accommodation unit chartered. Administration tasks can be undertaken off-site or remotely as required. Notwithstanding this, it was noted that there is an ancillary flexible 42 space building capable of hosting such functions.

38 [2017] ACAT 108 at [101] 39 Transcript of proceedings dated 24 July 2025 at page 34 40 Section 144 41 Section 139 42 T documents page 189 in AT 49/2025

73. In relation to the multiple references to ‘residential’ in the documentation, it is said that: ‘The intended development is for a commercial accommodation development only in the form of a modern motel. Any references from external consultants to ‘residential’ uses stem from a lack of distinction in standards and should not be taken to construe the intention of the development as legally applied for as part of this DA. It is noted that an updated report can be provided if 43 required’. It is unclear what ‘lack of distinction in standards’ means, but it perhaps suggests uncertainty or confusion about the proposal and which requirements apply to it, or, for reasons unknown, instances of the absence of external consultants’ coordination of documentation.

74. The questions ask about the relevant zone objectives and the applicant responds that: The subject proposal is carefully designed to maintain … the Gold Creek Golf Course in its current form, whilst preserving opportunity for additional recreation in the future. The subject proposal seeks to repurpose currently underutilised land in order to deliver a revenue stream for reinvestment into the operation of the golf course… The co-location of commercial accommodation with the existing outdoor recreation facility ultimately supports increased amenity … It is further anticipated to provide supporting 44 infrastructure for events and tournaments at the golf course.

75. The respondent also referred us to a question which suggested that a motel must contain short-term accommodation units only, that the proposed units could be rented for one day up to an indefinite period, and therefore that it was unclear how they can be ruled out from being used for long term accommodation. The response given is that short-term is not defined under the Territory Plan, nor any statutory instrument. It was said that in the preceding discussion, the definition of ‘commercial accommodation unit’ and ‘motel’ are consistent with those terms as used in the Territory Plan and the Crown lease. It was noted that, once approved and constructed, a Certificate of Occupancy and Use will need to be issued to confirm the appropriate use of the structures, and should the development contravene these, this would be in breach of the Crown lease and the Territory 45 would be obliged to take action. We agree that this answer is not as useful as it

43 T documents page 189 in AT 49/2025 44 T documents pages 190-191 in AT 49/2025 45 T documents page 194 in AT 49/2025 might have been. But it is technically correct. If the proposal is not built or used for commercial accommodation which is a motel, there are a range of regulatory mechanisms which can be brought to bear to address this. We are attracted to the argument that it is not appropriate to reject the application on the basis of the possibility that it might not be built or used for commercial accommodation; this possibility can be addressed by the significant regulatory mechanisms. The possible failure to comply with a DA and the terms of an approval is present in all developments.

76. There is also a letter headed ‘Response to public representations for combined design and siting and lease variation application …’ dated 23 January 2025. This response makes clear that the proposal is for the construction of a motel, 46 comprising 68 commercial accommodation units. Attachment 1 in answer to concerns about the suitability of the development location states, because of distance from town centres: ‘… accommodation will be available at a variety of price points, with a mix of medium and premium offerings. Given the motel use proposed, which requires the provision of convenient space for parking of motor vehicles, it is expected that most of the guests will have access to such 47 transportation.

77. There is also a letter dated 23 January which responds to queries raised about the characterisation of the development as a motel. This sets out a table of similarities and differences between a multi-unit residential development and a motel development. It states: ‘The proposed motel will be occupied under licence rather than a formal residential or occupancy agreement, … and operated as a modern motel on a commercial basis’ and ‘the nature of a residential development denotes a degree of long-term tenancy or occupation and/or permanence’ while a ‘commercial accommodation development is limited to short-term tenancy 48 only’.

46 T documents page 200 in AT 49/2025 47 T documents page 213 in AT 49/2025 48 T documents page 230 in AT 49/2025 Consideration

78. As noted, there is a significant amount of material involved, but on this analysis several points emerge.

The primary documents in the DAs make it clear that the proposal is for commercial accommodation which is a motel. This is confirmed by the answers provided by the applicant to the questions. Just looking at this material, there is no basis for thinking that the application is for anything other than commercial accommodation which is a motel. We also note that the National Construction Code 2022, Building Code of Australia Volume 1, A6G4 provides:

Class 3 buildings (1)A Class 3 building is a residential building providing long-term or transient accommodation for a number of unrelated persons. (2) Class 3 buildings include the following: A boarding house, guest house, hostel, lodging house or backpacker accommodation.

79. Some of the reports attached to the application confirm this. But some of the reports use a range of terminology which is inappropriate and confusing, and possibly misleading. However none of these clearly overrides the terms of the primary documents. Further, the answers to the questions state as noted that the intended development is for a commercial accommodation development only in the form of a modern motel, and any references from external consultants to ‘residential’ uses stems from a lack of distinction in standards and should not be taken to construe the intention of the development as legally applied for as part of this DA. This also makes clear that the reports should not be used to override the terms of the primary documents.

80. No clear explanation is given as to how such reports came to be provided. It is noted that they may be linked to the larger proposal. The confusion possibly arises from uncertainty about the proposal and which requirements apply to it, or, for reasons unknown, instances of the absence of external consultants’ coordination of documentation. We note that many of the community objections to the proposal arise from the public notification of the original Stages A to H, which was perceived as a residential development (NCC Class 2), supplanting the golf course. Further, it is noted that the applicant stated in the answers that an updated report can be provided if required. In our view, the applicant had a clear obligation to make a development application which was true and complete at the time it was made, and when it was pointed out to it that it was not, to remedy that. There is an issue about the declaration made in the development applications referred to above in paragraph [35]. The failure of the applicant to provide appropriate reports leads us to agree with the submission of the respondent that, to some extent, the applicant was the architect of its own misfortune in the form of the 49 respondent’s decision. But that is not determinative of the issue before the Tribunal.

81. The applicant argues that none of the features of the proposal raised by the respondent are inconsistent with the Crown lease nor the Territory Plan, and that these features can be consistent with a modern motel. There needs to be a full assessment as to whether the proposal for commercial accommodation, which is a motel, is consistent with the Territory Plan. If there is non-compliance with the Territory Plan, then this needs to be addressed in the decision, perhaps by conditions or rejection. But we do not think that the possibility that the proposal for a motel does not comply with the Territory Plan is a basis for the respondent deciding that the proposal is for something else, especially when this something else is a prohibited development.

82. The respondent appropriately raised its issues with the applicant. In our view the responses clearly confirm that the proposal is for a commercial accommodation, which is a motel.

83. The respondent was obliged to take into account the proposal and the answers to questions. It was not obliged to accept them without full consideration. But if it reached a view that the principal documents and answers to questions were in fact misrepresentations of the true position, then we think it was obliged as a matter of procedural fairness to put that position to the applicant, and give it an

49 Transcript of proceedings dated 24 July 2025 at page 60 50 opportunity to respond, and if it continued to hold that position to set out in its reasons this view and the basis for it. These steps were not taken, and as we understand it was not the respondent’s position.

84. We do not think it is appropriate to reject the proposal on the basis of the possibility that it might not be built for or used for commercial accommodation. This possibility can be addressed by the significant regulatory mechanisms. The possible failure to comply is present in all developments. The tribunal addressed 51 a similar issue in Diethelm v ACT Planning and Land Authority where Senior Members Spender and Hawkins said: The Tribunal is aware of the inherent difficulty in managing and enforcing compliance especially where the design of dwellings and multipurpose rooms may be readily seen as opportunities for a range of potential uses, including bedroom space. However, the Tribunal agrees with the comments 52 made in Glass . If the development is not used as approved, the non-compliance can be dealt with as a matter of enforcement.

85. A proposal for commercial accommodation which is a motel would comply with the purpose clause in the Crown lease. A proposal for residential accommodation would not. No application was made to amend the Crown lease in this regard. This further supports the contention that the DAs were for, and should have been assessed as for, commercial accommodation, that is a motel.

86. The respondent also argues that the ordinary and natural meaning of ‘motel’ assumes or implies that a room is serviced in some way, and refers to the Macquarie Dictionary, where the definition given is ‘roadside hotel which provides accommodation for travellers in self-contained, serviced units, with 53 parking for their vehicle’. Neither the definitions in the Crown lease nor the Territory Plan include nor imply this element. Definitions apply except so far as 54 there is a contrary intention. In particular, definitions are not to be read down unless the context clearly demands this. However, the dictionary or ordinary

50 Kioa v West (1985) 159 CLR 550, Mason J at 587; New South Wales v Hunt [2014] NSWCA 47 51 [2024] ACAT 96 at [25] 52 Glass v ACT Planning [2016] ACAT 96 at [198] 53 Respondent’s submissions at [76]-[81], see especially [80] 54 Section 155 of the Legislation Act 2001, which is a determinative provision, see sections 5-6 55 meaning of a defined term can have some impact on the interpretative process. However if ‘serviced units’ whatever this means, is part of the general meaning of motel, and is picked up by the Territory Plan, then all the uses of this term by the applicant, including in the principal documents of the DAs, take this meaning. The DAs are therefore proposals to build serviced units.

87. It is true that there is not a lot of detail about how the units will be serviced. But we are not sure that this is necessary for the DAs. The respondent did not ask 56 about this. Mr Konstantinou stated in evidence in these proceedings that it ‘has not yet been decided whether the cleaning and servicing of rooms will be 57 undertaken by a third party contractor or on-site via employed staff’. This does not seem an unreasonable position. Certainly, it does not support the suggestion that the applicant is in fact applying for approval for a residential development.

Conclusion

88. Therefore in our view the DAs were for commercial accommodation which is a motel. As such they were not for a prohibited development under PRZ2 – Restricted Access Recreation Zone of the Territory Plan, and could be dealt with in the merit track. For this reason, the decisions should be set aside.

89. This is not to say that the proposals should or could have been approved. A decision needs to be made under section 162 of the Planning and Development Act. There are issues with the form of the DAs. An assessment needs to be made as to compliance with the Territory Plan, including the Parks and Recreation Zones Development Codes and other relevant Codes, and the Crown Lease and the continued operation of the golf course. The notices of decision also raise a range of other issues, including those arising from representations and entity advice.

55 th D Pearce Statutory Interpretation in Australia (9 edition) at [6.4]; P Herzfield and T Prince, nd Interpretation (2 edition, 2025) at [3.50] 56 T documents pages 257-258 in AT 49/2025 57 Statement of John Konstantinou dated 23 July 2025 at paragraph [25]

90. The parties agreed that the decisions should be remitted to the respondent to be made again in accordance with this decision. The Tribunal agrees that this is a suitable course and has made orders accordingly.

……………………………….. Senior Member R Orr For and on behalf of the Tribunal

Date(s) of hearing: 24 July 2025 Applicant: P Walker SC and B Buckland, instructed by Clayton Utz Respondent: J Bird, instructed by ACT Government Solicitor