• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

nd Text /Papers cited: Herzfeld and Prince, Interpretation (2 ed, Thomson Reuters) Department of Foreign Affairs and Trade, ‘Iran’, Foreign embassies and consulates in Australia (Web page, 25 May 2026) < protocol.dfat.gov.au/Public/Missions/93>

Tribunal: Senior Member R Arthur Senior Member A Wilson Date of Orders: 25 November 2025 Date of Reasons for Decision: 26 June 2026 Date of Publication: 3 July 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 95/2025

BETWEEN: MANDY HARRIS Applicant AND: TERRITORY PLANNING AUTHORITY Respondent

TRIBUNAL: Senior Member R Arthur DATE: 25 November 2025

ORDER The Tribunal orders that:

1. After considering written submissions and evidence included in the interlocutory application filed on 18 November 2025 by the applicant seeking disqualification of the Tribunal presently constituted by Senior Members R Arthur and A Wilson from the further hearing of proceeding AT 95/2025 on the ground of apprehended bias, and after reading the affidavit of Mandy Harris affirmed 20 November 2025, the Tribunal as presently constituted declines to disqualify itself from further hearing of the proceeding. The Tribunal will give reasons for its decision at a later date.

2. After considering the written and oral submissions of Counsel on behalf of the respondent in support of the interlocutory application filed by the respondent on 12 September 2025 challenging the jurisdiction of the Tribunal to hear and determine the application of the applicant for review of the decision of the respondent to approve with conditions Development Application 202543899, and considering the written and oral submissions of the applicant and the evidence adduced by the parties in the proceedings, the Tribunal is satisfied that it has jurisdiction to hear and determine these proceedings. The Tribunal will give reasons for its decision at a later date.

3. Being satisfied that it has jurisdiction to hear and determine the application to review the decision of the respondent to approve with conditions Development Application 202543899, it is ordered pursuant to S 68 ACT Civil and Administrative Tribunal Act 2008: (a) The decision is set aside; and (b) The matter is remitted to the territory planning authority for reconsideration in accordance with any directions or recommendations of the Tribunal; and (c) The Tribunal recommends that the territory planning authority: i. requests further information under S167 Planning and Development Act 2007 in the form of plans or drawings showing: 1. the location and finished floor levels of the proposed detached extension; 2. privacy screening along the north-east and south-east edge of the detached extension so as to protect the residential amenity and privacy of adjoining residential development; and ii. approves the development application only if satisfied that the proposed privacy screening along the north-east and south-east edge of the detached extension will be adequate to protect the residential amenity and privacy of adjoining residential development.

4. The Tribunal will give reasons for its decision at a later date.

……………Signed………… Senior Member R Arthur For and on behalf of the Tribunal REASONS FOR DECISION Background to the application to the tribunal 1. The applicant, Mandy Harris, resides at a property neighbouring Block 34 Section 16 in O’Malley (Block 34).

2. The registered proprietor of its Crown lease is the Ministry of Foreign Affairs of the Islamic Republic of Iran (Iranian Government). The Crown lease was granted in 1989, and transferred by the original proprietor to the Iranian Government in July 1992.

3. Block 34 is within the RZ1 category under the Residential Zones Policy. Its Land Use Table identifies ‘single dwelling housing’ as a permitted land use. Being in O’Malley, it is within the Woden District Policy Precinct AD1 – which permits additional land uses – ‘office limited to chancery’ and ‘diplomatic residence’. Constructed earlier, but present in 2025 were a residential style building with gross floor area of 657 m², and an unapproved carport of 95 m².

4. In May 2025, Shirin Ghazi of Dream Design Building lodged a development application (DA 202543899) for the construction of a single storey detached extension in addition to the existing single dwelling (Diplomatic Residence), landscaping and associated works. The application sought approval for a “sleep out” consisting of a bedroom, en suite, coffee station, and living room 48.25 m² in area, detached from the existing building by some 30-40 m and approximately 10 m from the rear boundary. The application said that the detached extension would be used to house overseas guests of the Embassy.

5. As a neighbour of the block on which the development was to occur, Ms Harris was notified and made a representation to the Territory Planning Authority (TPA or the respondent) in opposition. She asserted that the proposal was not permitted by the Crown lease, being a second dwelling when only a single dwelling was permitted, and further that the use of Block 34 as an Embassy was not permitted under the Crown lease or the Territory Plan. She also drew attention to the fact that the new building will overlook her battleaxe block and front two bedrooms.

6. The Planning Authority approved the application in June 2025, with conditions, under section 185 of the Planning Act 2023 (Planning Act or the Act). It found that the proposed use was not inconsistent with the uses allowable under the purpose clause of the varied Crown lease – residential and/or diplomatic residential and chancellery purposes, or the Woden District Policy Precinct ‘AD 1’ – ‘office limited to chancellery diplomatic residence’. It did not consider the new building to be a secondary residence.

7. Amongst other conditions imposed by the Planning Authority was the 1 requirement to: Provide privacy screening along the Northeast and Southeast edge of the detached extension so as to protect the residential amenity and privacy of adjoining residential development. Application

8. Ms Harris applied to the tribunal for review of the decision in June 2025. In her reasons for applying for review, the applicant elaborated on the breaches of the Crown lease and the Territory Plan, and referred to the fact that the “sleep out area” for the Embassy will overlook properties. She sought orders to: (a) stop the building of a second dwelling on the block; and (b) uphold the Crown lease and uphold the Crown lease and AD1 provisions to have the property as a residence or chancellery and remove/stop all the Embassy and consular commercial activities.

Directions hearing

9. The first directions hearing following commencement of the application occurred on 25 August 2025. The applicant represented herself. She requested, and was given approval, to be assisted by Mr Inglis. The respondent planning authority was represented by Ms S Lane and Ms S Gasser of the ACT Government Solicitor’s Office (ACTGS).

10. Shirin Ghazi, as development approval applicant, and the Iranian Government, as the Crown lessee were entitled to be joined as parties to the proceeding, but

1 T docs 39 neither had applied to be joined nor attended the directions hearing. Given the nature of the issues raised, the views of the Iranian Government in particular would assist the Tribunal. The ACTGS representatives were asked to notify them of the entitlement to be joined, in addition to them having been notified of the approval decision previously.

11. Although required to provide the Tribunal documents within 14 days of notification of the application, the respondent had not done so. It transpired that the ACT Government Solicitor’s office had written to the applicant to tell her that her application was invalid because she did not have standing. It had explained the reasons for that, and told the applicant that the respondent did not intend to take any action in respect of the application, as the applicant should withdraw it.

12. The respondent told the Tribunal that it intended to challenge the jurisdiction of the tribunal in this matter. In the absence of Tribunal documents and a formal application challenging jurisdiction, the directions hearing was adjourned to 12 September 2025 for the appropriate steps to be taken.

13. On resumption, the Tribunal had available to it the Tribunal documents, the applicant’s application, a further Grounds for Review document filed by the applicant, and submissions filed by the respondent in support of the challenge to jurisdiction. It was apparent that the jurisdictional challenge – which was dependent on the land being used as a ‘single dwelling’ – would be undermined by the applicant’s case. The case (reduced to its simplest) was that the approval should be set aside because the extension would be used as part of the present and unlawful use of the land as an embassy.

14. The Tribunal concluded that, as there was substantial overlap in the issues raised by the applicant’s and respondent’s respective cases, the jurisdiction issue could be most efficiently dealt with after hearing all the evidence. Accordingly, the Tribunal gave directions for the interlocutory application and the substantive application to be heard together, and set out a timetable for submissions directed to both applications.

15. Although it seemed to the Tribunal that the most efficient way in which the proceedings could be progressed was by hearing the jurisdictional challenge and the substantive application concurrently, this approach unfortunately led to some confusion about matters that were appropriately put forward at one point but not at another.

16. Subsequently, at the hearing, the Tribunal sought to explore further the issues raised by the parties’ submissions, and directed the parties to file submissions to address two questions: (a) On the jurisdiction question, does the Crown lease provision which permits the use of the land as diplomatic residence or chancellery change the nature of the use of the land as a single dwelling, which is the basis of the exemption from review? (b) If the Tribunal has jurisdiction to review the Decision, should the Decision be set aside and referred back to the Authority to make a further condition for the provision of screening, as referred to in clause 3(b) of the Decision? For example, for the condition to include “to the satisfaction of the Authority”.

17. At the commencement of the final hearing the Tribunal had before it the challenge to jurisdiction and, if the challenge was not successful, the substantive application.

18. During the final hearing the applicant foreshadowed an application for disqualification of the members of the tribunal for apprehended bias. That application was subsequently made formally, and then heard.

19. In the reasons which follow, the Tribunal will deal with: (a) The jurisdictional challenge; (b) The substantive application; and (c) The reasons for the Tribunal members declining to disqualify themselves from hearing the substantive application.

20. Logically, the Tribunal must be satisfied that it has jurisdiction to hear and decide the substantive application before proceeding to do so. However, the degree of overlap in the factual material relevant to both matters is such that treating them separately in what follows is more a matter of form rather than reflecting any actual distinction beyond the final determination.

Substantive application – submissions Applicant

21. The applicant was predominantly concerned with the use of Block 34 by the Iranian Government, which she maintained was unlawful and a principal reason why the development application should not have been approved. Her reasons for this position were expressed in various ways across her application, the subsequent Grounds for Review, her submissions dated 29 October 2025 and in her submissions dated 7 November 2025. In those last submissions she drew the various points together. Although made in response to the Tribunal’s question on jurisdiction it best represents, as the Tribunal understands it, her final position.

22. She pointed to the description in the development application of the proposal as a “detached extension for the existing Embassy building” and “temporary 2 accommodation for overseas guests of the Embassy” , confirming that the property is being used as an Embassy. She made the point that “Embassy” is not a permitted or defined land use under the Territory Plan and that the relevant zoning provisions limit the use to “residential”, “diplomatic 3 residential/chancellery” (a) Residential–for domestic occupation, single dwelling and housing meaning the use of land for residential purposes for a single dwelling only (b) Diplomatic residence–Means dwelling specifically for the residential use of diplomatic staff of an Embassy, high commission, allegation or consulate (c) Chancellery–remains office function (non-retail commercial use) specifically for diplomatic use.

23. She said that the Crown lease purpose clause, varied in 1992 authorises only 4 “residential and/or diplomatic residential and chancellery purposes”. If “Embassy” was to be permitted by the Crown lessee it would have to be the

2 Just two of a number of references to “the Embassy” 3 Applicant’s supplementary submission dated 7 November 2025 at [4] 4 Applicant’s supplementary submission dated 7 November 2025 at [2] subject of a separate development approval, which would be inconsistent with the zoning provisions of the Plan.

24. Further, the proposed detached structure contains a bedroom, bathroom, kitchen, and living area which constitutes a self-contained second dwelling under reg 6 of the Planning (General) Regulation 2023 (General Regulation). She had pointed out in an earlier submission that the area of the living room described as a "coffee station" was fitted with an exhaust fan, rendering the area properly described as a kitchen and is contrary to clause 1(h) of the Crown lease. 5

25. She then set out what she termed the ‘Key Points’: (a) Specific Permitted Uses: Crown leases explicitly state the permitted uses for the property. A lease that includes “diplomatic residence or chancellery” has an additional purpose from a standard residential lease limited to a “single unit dwelling housing” (b) National vs. Territory Land: Land for diplomatic purposes in Canberra is often on “national land” managed by the National Capital Authority, distinct from “Territory Land” managed by the ACT Government. The planning roles and designations for diplomatic land use are part of a broader function related to foreign affairs, which overrides typical local residential planning rules. (c) Function vs Dwelling: A chancellery is essentially an office, which is a commercial/government function, not purely a residential one. While a diplomatic residence is residential in nature, it holds a special status and purpose under international law and local planning frameworks, with different requirements and immunities than a private single dwelling. (d) Planning and Approvals: Establishing a chancellery or a diplomatic residence generally requires specific Development Approval that accords with the relevant requirements of the Territory Plan or National Capital Plan, even if it might physically resemble a single house. Therefore, the specific permission for diplomatic use indicates the land is designated for a purpose that goes beyond the standard definition and regulation of a “single dwelling”.

26. Although the applicant confirmed that overlooking remains an issue, she made no submissions about the adequacy of the condition of approval requiring privacy screening.

5 Applicant’s supplementary submission dated 7 November 2025 at [4] Respondent

27. The respondent did not directly address the substantive application in written submissions (although parts of its submissions on the jurisdiction question were relevant to the substantive application), but did so briefly in oral submissions during the hearing.

28. It pointed to its written submissions to the effect that the detached extension lacked some of the attributes of the definition of ‘dwelling’ – in particular a kitchen as there were no cooking appliances or facilities shown on the plans – and accordingly should not be characterised as a second dwelling.

29. It also said that the fact that ‘embassy’ was not shown in the Residential Policy Land Use Table as a permitted use was not determinative of the issue; the extension of the permitted uses under the Woden District Policy meant that use for the purpose of an embassy in the ordinary sense of that word was allowed, that being the effect of combined use as a diplomatic residence and as a chancellery.

Jurisdiction question – submissions Respondent

30. The respondent made submissions in support of its interlocutory application, and further in its submissions of 20 October 2025. They focused on the statutory provisions in the Act and the General Regulation which excluded third-party applications to the tribunal if the development application was not required to be publicly notified, and on the character of the proposed development as a ‘single dwelling’.

31. Responding after the hearing to the Tribunal’s specific questions, the respondent made the following submission which effectively drew together the points made 6 in its earlier submissions: …. 2 For the following reasons, the respondent submits that the use of the land as diplomatic residence or chancellery does not change the nature of the use of the land as a single dwelling for the purpose of 6 Respondent’s submission dated 4 November 2025 at [2] – [14] considering whether the DA is exempt from review. The respondent maintains that the DA is exempt from review. 3 The DA identified that the proposed development or land use was for “single dwelling housing” and “diplomatic residence”: TD.160. The Decision imposed an express condition that “the additions and alterations to the dwelling are approved for use as a single dwelling only and the dwelling is not to be used or further adapted for use as a separate dwelling”: TD.42. 4 Pursuant to Schedule 5 Item 2 of the Planning Act 2023 (PA), a decision is not a reviewable decision if the development application is exempted from public notification by regulation pursuant to PA s 175(3)(b). 5 Regulation 38(b) of the Planning (General) Regulation 2023 (PR) prescribes, for the purpose of PA s 175(3)(b) that (underlining added): “A development application for any of the following development proposals is prescribed: […] the building, alteration or demolition of a single dwelling, if the development would not result in more than 1 dwelling being on a block; […] 6 The effect of this provision is that, if the development would not result in more than one dwelling on a block, it is exempt from the notification requirements in PA ss 175(1)(a)(b), and (d) and 176, and is not a reviewable decision for the purpose of PA s 506. 7 PR reg 38(b) is concerned with the number of dwellings on a block as opposed to the use of such a single dwelling as may be permitted pursuant to a Crown lease. This is clear from the first qualification of a single dwelling and then providing that the exemption applies if the development would not result in more than 1 dwelling being on a block. 8 The distinction between a dwelling as a building and the use of such a building is evident from PR reg 38(b) referring to a proposal for the building, alteration or demolition of a single dwelling. That does not concern the use of a single dwelling. 9 This is reinforced by the difference between the definition of a dwelling as defined in PR reg 6, which specifically refers to physical features of a building, and the use of such a building for residential use, as defined in the Dictionary to the Territory Plan 2023, which relevantly provides: residential use includes caretaker’s residence, co-housing, community housing, diplomatic residence, multi-unit housing, residential care accommodation, retirement village, secondary residence, single dwelling housing and supportive housing. 10 Furthermore, the language of PR reg 38(b) refers to a numerical figure (i.e., not more than “1 dwelling being on a block”). The language of PR reg 38(b) could have referred to “…not more than single dwelling housing” or some other reference to a use. However, it does not. 11 The above interpretation of PR reg 38(b) is consistent with the terms of the Crown lease of the subject property (TD.225-228), as varied (TD.204), which read together relevantly provides as follows (underlining emphasis added): 1. THE Lessee covenants with the Commonwealth as follows […] (g) To use the said land only for residential purposes and/or diplomatic residential and chancellery purposes. (h) That the building erected on the said land will be used only as a single unit private dwelling house and any outbuildings erected on the said land shall not be used as a habitation. 12 As a matter of construction, there is a distinction in these clauses between the building being used only as a single unit private dwelling house (in clause 1(h)) and the purposes for which that house may be used, being only for residential purposes and/or diplomatic residential and chancellery purposes (in clause 1(g)). 13. If clause 1(h) were to be read as prohibiting the use of the building as anything other than a single unit private dwelling house, then clause 1(g) would be rendered otiose. 7 14 . In conclusion, clause 1(g) of the Crown lease, which permits the use of the land as diplomatic residence or chancellery, concerns the permitted uses of the property. By contrast, PR reg 38(b) concerns the physical features of a dwelling. Provided that the proposed development in the DA does not constitute more than one dwelling, it is not a reviewable decision. Applicant

32. In her submissions of 29 October 2025 the applicant, Ms Harris replied (amongst 8 a number of other arguments): The proposal is described by the Authority as a "detached extension" designed for Embassy staff accommodation and international visitors. This use is not ancillary to a single household; it is a diplomatic or institutional use. The exemption cannot apply to a non-residential diplomatic facility. 9

33. She repeated this point, in other words, in her final submission.

7 Paragraph numbers in original 8 Applicant’s submission dated 29 October, page 2 9 Set out above at [25] of this statement of reasons

34. She also maintained that the detached extension was a self-contained dwelling. It would follow that, there being more than one dwelling on the land following approval, the exemption would not apply.

Consideration - Jurisdiction

35. The jurisdiction of the Tribunal – the power to hear and decide matters brought before it – depends entirely on legislation. Unless there is a statutory law (an authorising law) that allows an application to be made to the Tribunal, it does not have jurisdiction.

36. Usually, a determination that the tribunal has jurisdiction is relatively easily reached. In this case, however, it is not so easy partly because the applicant to the tribunal is not the applicant for the development application nor the Crown lessee of the land. She is a neighbour who wishes to appeal against the approval, having made a representation to the planning authority opposing the approval when the application was notified and who will suffer a material detrimental effect on her use and enjoyment of her land which adjoins the land on which the development is to take place.

37. The Crown lessee for the land for which development approval has been sought has, although notified of these proceedings, taken no part in them. It is the Planning Authority – the respondent decision-maker – which has questioned the jurisdiction of the tribunal.

38. The decision of the planning authority was to approve the application with conditions under section 185 of the Planning Act. The applicant is entitled to have her application heard and determined, unless her application is one of a class of applications which the tribunal is not allowed to entertain. According to the respondent, it is exempt from third-party challenge.

39. If the tribunal does not have jurisdiction to review the respondent’s decision it will remain operative.

Reviewable decisions and eligible entities

40. Applications for review of decisions made under the Planning Act may only be brought if they are reviewable decisions: section 507 of the Planning Act. Only an ‘eligible entity’ may apply to ACT Civil and Administrative Tribunal (the ACAT) for review of a decision.

41. The provisions of the Act relevant to this decision are: (a) A ‘reviewable decision’ is a decision mentioned in schedule 5 part 5.2, column 2 made by a decision-maker: section 504 of the Planning Act. (b) Item 2 of Schedule 5 Column 2 to the Planning Act listed a decision under section 185 to approve (with or without conditions) a development application as a reviewable decision. (c) Item 2 of Column 3 identified an entity which had made a representation to the planning authority about the application and which may suffer material detriment as a result of the approval of the application as an eligible entity.

42. The applicant and her application met both requirements in Item 2 of Column 3.

43. However, the status of the decision as a reviewable decision is dependent on the application of an exception set out in Column 2 – where the development application is exempted from a public notification requirement by regulation under section 175 (3) (b) of the Planning Act.

44. Whether the application was exempted from a public notification requirement was the jurisdictional issue which occupied, a large part of the time devoted to the proceeding.

The exemption

45. Regulation 38 of the Planning (General) Regulation 2023 identifies the development applications prescribed under section 175 (3) (b). Paragraph (b) of Regulation 38 identifies: (b) the building, alteration or demolition of a single dwelling, if the development would not result in more than 1 dwelling being on a block

46. Although the applicant strongly disputed the characterisation of the works to be undertaken if approved, the Tribunal is satisfied that the correct description of those works is the ‘alteration’ of the building which is the existing building on the block (excluding the unapproved carport). Consequently, we do not accept the applicant’s submission that the alteration results in more than one dwelling because it has a kitchen. In our view, the design for the extension falls short of providing for a kitchen, although it may not take much by way of adaptation to render it as such. However, the approval must be based on the proposal as presented, not what it might become in the future. The latter is not a consideration 10 in the approval phase. If the applicant’s fears are realised, that would be the subject of a controlled activity order requiring compliance with the approval.

47. The material parts of the respondent’s submissions are: (a) The reference in Reg 38(b) to the number of dwellings as opposed to the use of dwellings (b) This distinction is reflected in each of: (a) Reg 38 (b) which refers to a proposal for the building, alteration or demolition of a single dwelling, not its use; (b) The difference between: (i) The definition of “dwelling” in Regulation 6 which refers to physical features of the building, and (ii) The definition of “residential use” in the Plan Dictionary which encompasses the range of types of residential uses including (relevantly) diplomatic residence and single dwelling housing; and (c) Regulation 38 (b) which refers deliberately to a numerical figure (“not more than 1 dwelling”) rather than referring to a use such as ‘not more than single-dwelling housing’. (c) This interpretation is consistent with the terms of Clause 1 of the Crown lease as varied- (emphasis original): 1. The lessee covenants with the Commonwealth as follows: …

10 Australian Capital Territory Planning and Land Authority v Bonner [2013] ACTSC 158 was cited by the applicant as an authority to the contrary. The Tribunal was not able to find a case report of that name. The medium neutral citation is, however, that of a reported criminal law case. (g) to use the same land only for residential purposes and/or diplomatic residential and chancellery purposes (h) that the building erected on the same land will be used only as a single unit private dwelling house and any outbuildings erected on the said land shall not be used as a habitation (d) As a matter of construction there is a distinction between: (i) the building being used only as a single unit private dwelling house (1(h)), and (ii) purposes for which that house may be used i.e. only for residential purposes and/or diplomatic residential and chancellery purposes (1 (g)) (e) This construction is justified because 1(g) would be otiose if 1(h) were read as prohibiting use of the building as anything other than a single unit private dwelling house.

48. While the relevant statutory provisions have been identified and applied, the respondent’s reasoning does not consider: (a) the full definition of ‘dwelling’ in regulation 6, and (b) the meaning of “and/or” in the construction of the lease purpose clause.

49. In our view, a different result follows when both are considered in full. The more correct analysis is that submitted by the applicant which focuses on the use of the building at the time of the development application.

Definition of “dwelling”

50. This is a complicated definition, containing terms which are themselves defined, 11 “nested” across several legislative instruments. In the following paragraphs the critical elements are underlined.

51. “Dwelling” is defined in the Plan Dictionary as having the same meaning as in regulation 6, and then in regulation 6 as:

11 nd See Herzfeld and Prince, Interpretation Thompson Reuters 2 edition, at 3.10 a class 1 building, or a 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 one path 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

52. ‘Class’ is defined in the General Regulation Dictionary as: for a building or other structure, means the class of building under the building code

53. ‘Building code’ is defined in the Dictionary of commonly used terms in the Legislation Act 2001 as: the building code under the Building Act 2004, section 136

54. Section 136 identifies the Building Code of Australia (BCA). The BCA is found in Volumes 1 and 2 of the National Construction Code 2025. Volume 1 covers building classifications 2-9, while Volume 2 covers classifications 1 and 10.

Building Code – classification

55. Section A of Volume 2 sets out 'Governing Requirements'. Clause A6G1 says: (1) The classification of a building or part of the building is determined by the purpose for which it is designed, constructed or adapted to be used. (2) Each part of a building must be classified according to its purpose and comply with all the appropriate requirements for its 12 classification .

56. Explanatory information is provided: Classification is a process for understanding risks in a building part, according to its use. It must be correctly undertaken to achieve NCC aims as appropriate to each building in each circumstance. It is possible for a single building to have parts with different classifications. Part of a building can also have more than 1 classification. Where there is any conflict between what requirements the part should comply with, the more stringent requirement applies.

12 There is an exemption in respect of part whose floor area is less than 10% of the storey which it is situated on–it will have the same classification as the other part of the storey Classification – class 1

57. Clause A6G2 says (underlining added): (1) A Class 1 building is a dwelling. (2) Class 1 includes the following sub-classifications: (a) Class 1a is 1 or more buildings, which together form a single dwelling including the following: (i) A detached house. (ii) 1 of a group of 2 or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, townhouse or villa unit. (b) Class 1b is 1 or more buildings which together constitute– (i) a boarding house, guest house, hostel or the like that– (A) would ordinarily accommodate not more than 12 people; and (B) have a total area of all floors not more than 300 m² (ii) [….] Meaning of “single dwelling”

58. The expression “single dwelling” is not defined either in the Territory Plan 2023 or the Planning Act. It appears as part of the land use designation “single dwelling housing”, and is then defined as “use of land for residential purposes for a single dwelling only”, and in the BCA clause A6G2(2)(a) as an example of a class 1 building. 13

59. In Luongo v ACT Planning and Land Authority Katzmann J, sitting in the ACT Supreme Court, considered the meaning of “single dwelling” in the BCA (underlining added):

[55] A class 1a building, it will be recalled, is defined in the building code as “a single dwelling ...” in contradistinction to the classes of building contained in classes 2 and 3. In Kazakova v Queensland Fire and Rescue Service [2011] QCA 328 Chesterman JA, with whom Muir JA agreed, said at [24]–[26]: [24] The definition in the Code of a class 1a building is not without difficulty. What is a “single” dwelling? The choice of adjective is meant, presumably, to differentiate such a dwelling from a multiple dwelling. The point of distinction thus appears to be between a detached house used as a habitation for one person, 13 [2013] ACTSC 206 at [55] or one group of persons, which may be regarded as an aggregated unit of persons, and a habitation of unconnected persons, or multiple households. Thus understood it accords with the primary judge’s understanding that a single dwelling is the habitation of one discrete household the members of which are permanent residents. A single dwelling is therefore likely to be occupied by a relatively small group of people the members of which will remain stable over a sustained period of time. Its members will be bound by ties of affection and kinship. [25] The Code makes it clear that a class 1a building, and its use as such, is different to a boarding house, guest house, hostel, lodging house or backpackers accommodation. These uses fall within class 1b or 3. What they have in common, is that the number of residents is likely to exceed that found in a conventional family household, and the composition of the group of residents will tend to change frequently. Residency is likely to be transient and residents will have only their address in common. [26] When one has regard to the Code’s purposes of classification of buildings, one can see the importance of these concepts. A building used for a large number of residents who are strangers to each other, and who might occupy a building for brief periods and therefore not become familiar with its floor plan and means of egress, will have a greater need for a fire safety management plan than those who live in their own home and are familiar with it, and between whom ties of affection are likely to lead to a greater degree of assistance in the event of a fire than would be the case with a transient population of a boarding house. [56] McMurdo P expressed the view (at [2]) that a shared household with co-tenants would satisfy the definition of a “single dwelling”. The plaintiffs relied on this opinion but her Honour’s opinion is a minority one. As I am not convinced that the decision of the majority on this question is plainly wrong, I am required to follow it: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].

60. Katzmann J was concerned with a controlled activity order given to the landlord of residential premises that had been divided into two parts by means of a locked door in the centre, and at the relevant time were rented to some eight or nine separate individuals. An occupation certificate had been issued for a class 1a building.

61. The case appears to be the only occasion on which the term ‘single dwelling’, and its relationship to other types of use, as appearing in the BCA has been considered judicially in the ACT. Katzman J considered the interpretation given to it by the Queensland Court of Appeal (albeit by majority) was binding on her Honour. As an ACT tribunal, it is binding on us.

62. The Queensland Court of Appeal was focused only on Class 1a which it characterised as a detached house used as a habitation for one person, or one group of persons, which may be regarded as an aggregated unit of persons – one discrete household. This was to be distinguished from a habitation of unconnected persons, or multiple households such as a boarding house or guest house etc, which uses fall within class 1b or 3.

63. A diplomatic residence specifically for diplomatic staff is likely to have a fluctuating number of personnel coming and going as postings commence and end, and consist of separate households as indicated by the staff list for the Iranian 14 Embassy . For that, and other reasons, it may not be in consideration at the end of the day, but it is prima facie a class 1b building.

Classification – classes 3-5

64. Volume 2 of the NCC covers classes 2 to 9. It also has a Section A–Governing Requirements whose clause A6G1–Classification is in the same terms as the corresponding clause in Volume 2.

65. Class 2 is not presently relevant as it is concerned with apartment style multiple dwellings.

66. Clause A6G4 deals with 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. (b)-(g) [a residential part of a hotel or motel, school, health-care building which accommodates members of staff, or a detention centre and types of accommodation for persons needing care]

14 See below

67. Explanatory information is provided: Class 3 buildings provide accommodation for unrelated people. Length of stay is unimportant. … Also any sized building can be classified as Class 1 if it is used to house any number of unrelated people who jointly rent it, or share it on a non-regular basis with an owner or tenant.

68. Clause A6G5 deals with a class 4 building: Class 4 is a dwelling in a Class 5, 6, 7, 8 or 9 building if it is the only dwelling in the building.

69. Explanatory information is provided: Class 4 classification applies to some types of accommodation located within a class 5-9 building. Most common include a caretaker's flat within the building; and accommodation over or otherwise connected to a shop. A Class 4 part cannot be located within a Class 1, Class 2, or Class 3 building. There can be only one Class 4 dwelling in a building. If there are 2 or more dwellings, they are Class 1, Class 2, or possibly Class 3. These Class 1, Class 2 or Class 3 parts need not be attached to one another, nor be more than a single storey. Where a Class 4 part of a building is rented out for accommodation purposes, it retains its Class 4 classification. However, if any other part of the principal building is used for accommodation, for example, the attached shop is converted into an additional flat, both flats become classifiable as Class 2 or, depending on their use, possibly Class 3.

70. Clause A6G6 deals with a class 5 building: A Class 5 building is an office building used for professional or commercial purposes.

71. Explanatory information is provided: Class 5 buildings include professional chambers or suites, lawyers' offices, government offices, advertising agencies and accountants' offices.

Application of these provisions in the present case

72. Because exemption is available under regulation 38(b) only in respect of the “building, alteration or demolition of a single dwelling” which is a class 1 building under the BCA, the exemption will only be available if the building which is to be (in this case) altered has, at the time of the making of the development application, as the purpose for which it has been “designed, constructed, or adapted” to be used, that of a single dwelling.

73. The matter has gone beyond consideration of design, however, since a building at least has been constructed, and may then also have been adapted. In any event, the evidence shows nothing of its design and little of its construction apart from its size and general appearance externally and to a small extent internally.

Adaptation – evidence of history of use

74. Ascertaining the purpose for which it has been constructed and then adapted (if at all) cannot be done by direct examination of plans or records of work carried out, but only inferentially by reference to what is known of the history of the building and what use has been made of it: (a) The Crown lease was granted in 1989 “for residential purposes only” but with the proviso that the building could be used “as a single unit private dwelling house only”. (b) The Crown lease was transferred to the Iranian government in June 1992, and the lease purpose clause was varied in December 1992. (c) The building was constructed before June 1992, as the Crown lease shows that a development compliance certificate under section 179 of the Land (Planning and Environment) Act 1991 had been issued enabling transfer by the original lessee. That compliance was with clauses 1 (b) and (c) requiring the erection of “one private single dwelling house building”. (d) Unless the original lessee had an arrangement with the Iranian Government to design and construct a building to be used as an embassy, the building could have been approved and certified fit for occupancy only if it was for a single dwelling use, consistently with the Crown lease. (e) There is no evidence either way as to subsequent works on Block 34 other than the unapproved 95 m² carport in addition to the original three car garage under the roofline.

75. There is also contemporaneous evidence indirectly from the Iranian Government through its development applicant representative. In the Development Application Outcomes Report which accompanies the Application, the 15 development applicant has said: This Development Outcomes Report outlines the proposal for a detached extension to the existing embassy building. The extension will consist of a new bedroom, living room, and bathroom, designed as a sleep-out structure, to provide temporary accommodation for overseas guests of the embassy. The goal of this extension is to offer additional space to comfortably house visitors while maintaining the needs and function of the embassy.

76. The balance of the Report refers throughout to “the embassy”.

77. Ms Harris drew attention to these ‘embassy’ references and also to newspaper reports and other published documentation referring to the building on Block 34 16 as “the Iranian Embassy”. They included a screenshot of the website of the Department of Foreign Affairs and Trade (DFAT) showing that the Embassy of the Islamic Republic of Iran is an accredited foreign Embassy in Australia with its Chancellery located at 25 Culgoa Circuit, O'Malley, ACT. It also lists the staff consisting of the Ambassador, five Counsellors and a Second Secretary (each with a spouse), together with their respective spouses. She also reported many instances over time of her observations of events consistent with Block 34 being used as an embassy. We accept the veracity of those observations, not only because they are corroborated by the weight of the other evidence.

78. As part of its site inspection prior to the hearing, the Tribunal members went past the entrance to 25 Culgoa Circuit and noted a sign at the entrance which identified the site as that of the “Embassy of the Islamic Republic of Iran”. The present 17 DFAT website is in the same terms as the earlier screenshot, but lists a Charge 18 d’Affaires a.i. and two Counsellors as staff.

79. The Tribunal is satisfied that Block 34 is used, and probably has been for several decades, as an ‘embassy’. Exactly what that use signifies remains a question which will be considered later in these reasons. For present purposes, we are

15 T Docs 183 16 Dated 5 August 2025 17 URL – protocol.dfat.gov.au/Public/Missions/93 18 The Ambassador and several staff were expelled from Australia shortly after these proceedings were commenced satisfied that the ordinary meaning of the word ‘embassy’ is coextensive with the use implied by the combination of ‘diplomatic residence’ and ‘chancellery’ as they are defined.

Adaptation for use for purpose of an embassy 19

80. The ordinary meaning of “adapt” is: Adapt – to make suitable to requirements: adjust or modify fittingly

81. Given the decades of use as an embassy, it is likely that the fabric of the building has been modified in some way – but not necessarily since, given rooms of appropriate size, beds can be replaced by desks, wardrobes by shelving and other office facilities, for example. Both means are adaptation in the sense intended by the BCA, as each can facilitate a change of use which has implications for the management of risk.

82. Whether by physical alterations which have in the past been made internally to adapt the building for use as an embassy, or whether by adaptation by way of repurposed rooms as described above, there is no doubt that use for the purpose of an embassy (as the combination of diplomatic residence and chancellery uses) has been enabled.

Single dwelling – application of the exemption to the building as adapted 20

83. At paragraph 6 of its submissions the respondent said: The effect of [regulation 38 (b)] is that, if the development would not result in more than one dwelling on a block, it is exempt from the notification requirements….

84. In our view, this misstates the effect of 38(b) because it focuses on the outcome of the approval process and overlooks the subject matter of the process itself – the alteration of a single dwelling – that is, there can be no exemption if there is not a single dwelling in the first place.

19 Macquarie online dictionary 20 Respondent’s submissions dated 4 November 2025 at [6] Single dwelling/Diplomatic Residence

85. The Development Application is a document which must be completed online by way of response to prompts. In this case, in response to the prompt – “The proposed development or land use is for the following, as per the Territory Plan 21 definitions” – the development applicant’s response appears as: Single dwelling - Single dwelling housing 22 - Diplomatic residence

86. Under the heading “Development Application Details” in its Notice of Decision, the authority identified the “Type of Development” as: Residential–Single Dwelling/Diplomatic Residence

87. Under the heading “Proposal Description” the authority said: Construction of a single storey detached extension addition to the existing single dwelling (Diplomatic Residence), landscaping and associated works 23

88. In Part 2 of its Reasons in the Notice of Decision, the authority noted: As the development proposal was for the following type of development

Building, altering or demolishing a single dwelling that does not result in more than 1 dwelling being on the block.

[s]ome public notification requirements… were exempt under Section 175 of the Act, in addition pursuant to schedule 5 and section 175(3)(b) of the Planning Act 2023 this decision is likely to be exempt from third party review (appeals).

89. There is no explanation as to what is meant by “Single Dwelling/Diplomatic Residence” and “single dwelling (Diplomatic Residence)”. It is not clear whether some composite concept of use is intended that reflects that ‘diplomatic

21 T Docs 460 22 At T Docs 160, in the printed application the mark preceding the selected land uses is a box, suggesting that the identified uses have been chosen from a menu of defined uses. 23 T Docs 33 residence’ asis a subset of ‘single dwelling’ or perhaps that they are coextensive and thus interchangeable uses.

90. The relevant land use definitions in the 2023 Territory Plan are: (a) ‘diplomatic residence’ means: a dwelling specifically for the residential use of diplomatic staff of an embassy, a high commission, a legation, or a consulate. (b) ‘single dwelling housing’ means: the use of land for residential purposes for a single dwelling only. (c) ‘residential use’ includes: caretaker’s residence, co-housing, community housing, diplomatic residence, multi-unit housing, residential care accommodation, retirement village, secondary residence, single dwelling housing and supportive housing. (d) Uses such as ‘boarding house’ and ‘guest house’ are shown as separate non- 24 residential uses .

91. The definitions show that although both are uses under the umbrella definition “residential use”, they are separate uses as are the other uses for residential purposes listed under the umbrella definition such as “boarding house and “guest house”.

92. The point of compartmentalising the use of land by reference to a specific purpose is to enable its efficient regulation so as to meet designated planning objectives. To that end the coverage or content of a use is generally distinct from that of other uses if not mutually exclusive.

93. Whether or not mutually exclusive, under the present Plan single dwelling housing and diplomatic residence are separate uses and cannot be conflated in the way that the authority appears to have attempted. The concern is not whether the authority made a wrong decision – one way or another there clearly was a building to which an extension could relate. The concern is whether public notification was required. Neither the terms used in the development applicant's description of its development proposal nor the authority’s interpretation of them can

24 Curiously, 'guest house' means the use of land for one or more 'commercial accommodation units' – the latter being defined as 'rooms made available on a commercial basis for short term accommodation' and which 'may comprise a dwelling' (i.e. a class 1 building) determine that. Because it is a pre-condition of the tribunal's jurisdiction, it can only be determined by this Tribunal on the basis of objective fact.

Either single dwelling or diplomatic residence

94. Neither in the categorisation of use by the authority in the Notice of Decision, nor in the reasoning of the submissions of the respondent, is the requirement to adopt BCA classification to determine the eligibility for exemption applied. Also overlooked is the need to commence the analysis with the existing building.

95. To understand the significance of these matters, it is helpful to set out the exemption as expressed in regulation 38(b), substituting for ‘dwelling’ its regulation 6 definition, and including parts of the sentence that are unexpressed but implied: The building, alteration or demolition of a single [class 1 building] [on a block] if the development would not result in more than 1 [class 1 building] on [that] block

96. What is evident is that: (a) only one block is in contemplation; (b) the building on the block at the time development is proposed must be a class 1 building under the BCA; and (c) that after the development there must still be only one class 1 building on the block.

97. It is clear that the exemption will apply if the existing building consists of a single dwelling [A6G2(1)], either a detached house [A6G2(2)(a)(i)] or one of two or more attached dwellings, e.g. one half of a duplex where the common wall is on the boundary of the block [A6G2(2)(a)(ii)].

98. A building such as a boarding or guest house is not a single dwelling (Luongo), but as class 1b, is a class 1 building if it would ordinarily accommodate not more than 12 people and has a gross floor (GFA) less than 300 m² [A6G2(2)(b)(i)(B)]. If it exceeds either of these limits, it must be a class 3 building.

99. A ‘block’ is the smallest unit into which land may be subdivided under the Districts Act, and is given a unique identifier. Block 34 of Section 16 O’Malley is such a block.

100. How do ‘single dwelling’ and ‘diplomatic residence’ fit into this framework in the context of Block 34? (a) Diplomatic residence is defined (Plan) as a dwelling – that is, a class 1 building - specifically for the residential use of diplomatic staff of an embassy. (b) For subclass 1a ‘single dwelling’ is judicially defined as a detached house used as a habitation for one person, or one group of persons, which may be regarded as an aggregated unit of persons – one discrete household. (c) The evidence does not indicate how many members of the diplomatic staff reside in the building or how much of the building is utilised for residential purposes. On the evidence, historically up to seven couples could have resided there, possibly with other family members. (d) If only one couple and their family members – a discrete household -resided there and the building was not used for any other purpose, the building would be a class 1a single dwelling. If all of the diplomatic staff resided there it would be a class 1b dwelling, but if there were more than 12, or the GFA of the part of the building which they occupied exceeds 300 25 m², it would be a class 3 building. 26 (e) Absent other considerations, it follows that the only circumstances in which the exemption clearly could apply is the first of the alternatives in subparagraph (d) above, as the second is uncertain. For completeness, the result would not be different if the building was used as a class 1a dwelling and a class 1b dwelling at the same time because, apart from that not being

25 The GFA limit might not be exceeded if only two or three couples were in residence, but that presupposes that the unused GFA was being used for another purpose 26 Potentially two – the transforming influence of other uses, and the enclosed definition of 'single dwelling' permitted under the BCA, two dwellings on the block would not qualify for exemption.

The chancellery use – another consideration

101. It was common ground that the building was being used as a chancellery as permitted by the lease purpose clause. That fact was not, however, addressed by 27 either of the parties in relation to the jurisdictional question.

102. Use for the purpose of chancellery entails that some part of the building constructed for residential purposes has been adapted to enable that to occur. As noted above, a chancellery is identified in the Plan as the office of an embassy. An office is classified as a class 5 building under the BCA.

103. Parts of a building may have different BCA classifications but, depending on the particular mix of uses some types may not be allowed or, if allowed, will have a 28 different classification. That is the case with a dwelling in a building also used for other purposes if it is the only dwelling in the building.

104. Ascertaining the appropriate classes for the various uses in this building is not easy. The evidence seems clear that the building is not being used as a residence for one discrete household, Class 1a. What is also clear is that some part of the building is used for chancellery purposes – that is, for offices, and is Class 5. Also clear is that some part is also used for diplomatic residential purposes. The classification of this part is more difficult:

(a) It might be Class 1b if the number of persons is not more than 12 and the gross floor area occupied is less than 300 m²; or

(b) It might be Class 3 if one of the person/GFA limits is exceeded or, in any event, on the basis that it is similar to residential accommodation for members of staff of a health care building or hotel workers' accommodation – and perhaps, a boardinghouse or guesthouse –

27 As noted above, Ms Harris did make the point, but in the context of the substantive application 28 In the BCA, the term has its ordinary meaning all of which provide long-term or transient accommodation for a number of unrelated persons.

(c) If it were Class 1b, while it would be 'class 1' within the definition of Reg 6 , it would not be the Class 1a single dwelling apparently stipulated by Reg 38 (b) – an arguable interpretation given that the term appears in both the regulation and the BCA, and also in the Plan definition of 'single dwelling housing' as meaning ‘…. single dwelling only’.

(d) Apart from the apparent absurdity in the notion that a small diplomatic residence would be a class 1b building, but a large one would not, we think that there is a closer correspondence between onsite access for healthcare and hotel workers and the diplomatic staff of an embassy, than with residents of a boarding or guesthouse who all work elsewhere.

105. In our view, the most appropriate class for the diplomatic residence part of the building is class 3. We are conscious that building classification is such that, if other information had been made known to us, we may have been persuaded differently. It was, however, for the Iranian Government who benefit from the exemption and the respondent authority who brought the challenge to have provided that. The chancellery part of the building, the offices, is clearly class 5. These two parts comprise the whole building. It needs to be remembered that these findings are not actually classifications under the BCA. The Tribunal has 29 been engaged in building classification only for the purpose of making findings in the course of its task of reviewing the respondent's planning decision.

Consistency with Crown lease

106. Whilst we agree with the respondent that it is desirable that the interpretation given to the meaning of ‘dwelling’ results in an outcome that is consistent with 30 the lease purpose clause , we do not accept the respondent’s approach leads to

29 At times with a sense of the surreal 30 Though the terms of the Crown lease cannot influence the interpretation of the regulation and the BCA the correct interpretation, and we do not think the interpretation given by the respondent to the lease purpose clause is correct.

107. It is nonetheless important for us to check that our interpretation does not lead to problems in the way in which the lease is administered.

108. As noted previously, when the Crown lease was first granted, the Crown lessee covenanted in clause 1: (f) To use the said land for residential purposes only

109. In December 1992, the Crown lease was varied, substituting for subclause (g): (g) To use the said land only for residential and/or diplomatic residential and chancellery purposes

110. At all times, subclause (h) was, and remains: (h) That the building erected on the said land will be used only as a single unit private dwelling house and any outbuildings erected on the said land shall not be used as a habitation

111. As originally composed, the combined effect of subclauses (g) and (h) is plainly that the building on Block 34, is to be used for residential purposes limited to as a single unit private dwelling house, and nothing else.

112. The evidence shows that in 1992 an application to vary the lease was made and approved so as to substitute the original subclause (g) with subclause (g) as it now 31 is. The intention, presumably, was to add ‘diplomatic residence’ and ‘chancellery’ as additional permitted uses. But it must have been obvious that use for those purposes would be contrary to subclause (h). As the respondent submitted, giving effect to subclause (h) would render subclause (g) otiose. It is a principle of interpretation that the parties are to be presumed to have intended that effect should be given to all words in a contract, if that is possible.

31 T Docs 172-179 32

113. Referred to as the “bastard conjunction”, the use of the expression ‘and/or’ has 33 been criticised by judges for decades as the product of lazy drafting. Its problem is that it is inherently ambiguous.

114. Grammatically, ‘and’ is conjunctive and indicates that two things are joined together, as in “diplomatic residential and chancellery” in the varied subclause (g). Conversely, the disjunctive ‘or’ indicates that two things are separated. It does not appear in the varied subclause (g). Instead the expression “and/or” was used.

115. It is clear that, in the varied subclause (g), use for “diplomatic residential and chancellery” purposes is permitted. What is not clear from the use of the ‘and/or’ device is whether such use is permitted as additional (‘and’) to the use for “residential” purposes, or as an alternative (‘or’) to that use. The practical difference in the present case is between permission to use the land for all three purposes at the same time on the one hand, and on the other hand residential purposes only, or diplomatic residential and chancellery purposes only, but not both at the same time.

116. As the respondent submitted, the interpretation of Crown leases is subject to special principles. The lease is not to be regarded as a statutory instrument to which the Legislation Act 2001 would apply, but is an ordinary commercial contract which, subject to certain limitations, is to be interpreted according to 34 principles applicable to the interpretation of commercial contracts, including that it is permissible to have regard to the factual matrix in which the parties contracted especially when the contractual term under consideration is 35 ambiguous. The limitations stem from the fact that a Crown lease, as a document of title like a development consent in other jurisdictions, has a public dimension which necessitates a limitation on the range of matters that can be 36 considered for the purpose of resolving the ambiguity. So that a person wanting

32 Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20 at [85] 33 Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20 at [85] 34 Quanton Pty Ltd v ACT Planning and Land Authority [2021] ACTSC 139 at [64] 35 Codelfa Construction Pty Ptd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 36 Quanton Pty Ltd v ACT Planning and Land Authority [2021] ACTSC 139 at [60] to rely on the document at a much later point in time is able to do so with certainty, only matters which are notorious can be taken into account for interpretation 37 purposes.

117. Where, however, one of the parties interested in resolving the ambiguity is the party who issued the development consent or in this case the Crown lease it may 38 be permissible to have regard to matters known to that entity.

118. In our view, it is not necessary to go outside the terms of the lease itself, in the light of the history of dealings which is recorded on the lease document, for the purposes of the interpretation of subclauses (g) and (h).

119. As noted above, the original intention memorialised on the register was use for the purpose of a single unit private dwelling house only, but later the intention of the parties to the lease was to add additional uses which were separate and distinct from the use originally intended. It must have been apparent to the parties, however, that the new uses would be inconsistent with subclause (h) if it applied to them – it would be necessary to draft the new subclause so as to avoid this.

120. That intention would be expressed in a new subclause (g) in the following terms: To use the said land only for residential purposes subject to subclause (h) or for diplomatic residential and chancellery purposes

121. Instead, the drafter chose to use the ‘and/or’ device. The ambiguity which arises has been referred to above. However, the context referred to above makes it clear which limb of the ambiguity was in the mind of the parties – clearly the conjunctive limb (‘and’) would clash with subclause (h), but the disjunctive (‘or’) would not. If the lessee at a later time wished to return the building to its single dwelling use it could do so, but in the meantime the Iranian Government (having no need for a single dwelling if they had a diplomatic residence) would be able to use the building for its diplomatic residence and chancellery purposes.

122. This interpretation is consistent with the correct application of regulation 38 (b).

37 Springrange Pty Ltd v ACTPLA [2010] ACTCA 17 at [15] referring to Codelfa, supra at 352 38 Owners Corporation 14971 v Territory Planning Authority [2025] ACAT 43 at [77] Exemption does not apply

123. In short, given the use of the building on Block 34 and the adaptation it implies, no development proposal in respect of the building could be exempt from public notification, because there is no single dwelling (being a class 1 building) on the block. That was so at the time that the development application for the approval under review was commenced, when the part of the building used for residential purposes was prima facie classified under the BCA as either class 1b or 3 but, because the building was also used for chancellery purposes, as class 4.

Observations on the ‘dwelling’ definition

124. There is a line of demarcation, well understood in the development approval process, between planning controls and building controls – the latter being the province of the building approval process.

125. In planning law, use must be for a purpose. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued. In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary. Use of land involves no more than the physical acts by which the land is made to serve some purpose. Whether land can be developed for a particular use depends on whether 39 the purpose is permitted, does not require permission, or is prohibited.

126. For building regulation under the BCA, the purpose of for which a building is designed, constructed, or adapted to be used determines its classification. That classification then determines the technical building rules and standards required to be met in order to ensure that the resulting structure is safe.

127. An effect of this difference is illustrated by the definition of ‘dwelling’ as ‘a class 1 building’. Under the BCA, reference to ‘class 1’ includes its sub classifications – 1a and 1b. Subclassification 1a is a standard detached or attached single dwelling house. Subclassification 1b, on the other hand, covers a small boardinghouse or guesthouse, neither of which is mentioned in the (non-

39 Sutherland Shire Council v Benedict Industries P/L (No 8) [2017] NSWLEC 4 at [121- [123] per Pepper J quoting Preston J in Chamwell [2007] NSWLEC 114 and in turn High Court authority exclusive) list of uses defined in the Plan as ‘Residential’. A guesthouse is a commercial accommodation unit, which is not a residential use.

128. Those who are used to interpreting and applying planning definitions, all of which are static, face a new challenge when asked to interpret and apply a non-planning dynamic definition for use in a different technical sphere. 40

129. In 1993, the definition of ‘dwelling’ in the Plan was

A room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile and includes outbuildings, if any, that are normal to the enjoyment and exclusive use of the dwelling At that time, the planning regulation expressly adopted the definition of terms as used in the Plan.

130. With the introduction of the new Territory Plan 2008, the Plan definition was changed to: A building or part of a building used as a self contained residence which must include food preparation facilities, a bath or shower, and a closet pan and wash basin At the same time, the regulations made under the Planning and Development Act introduced the definition of 'dwelling' as it now is.

131. In 2010 it was noticed that the definitions in the Plan and the regulation was not 41 consistent. The Plan definition was then amended so as to adopt the definition in regulation.

132. In 2026, in each of the States and the Northern Territory, the definition of 'dwelling' is the same, or a variant of, either the 1993 or 2008 Plan definitions.

Conclusion on jurisdiction

133. We have found that, on the proper interpretation of paragraph 38(b), a development application is exempt from public notification if the development proposal is, firstly, in respect of a building which is a single dwelling being a

40 Territory Plan – Written Statement, Appendix VI Definition of terms (Gazetted 14 September 1993) 41 Revn 35 – NI2010-21 – Technical Amendment – Item M47 habitation for an aggregated unit of persons – a discrete household – or a 42 relatively small group of unrelated persons in a boarding house or the like and, secondly, following development there is no additional dwelling of that character.

134. In this case, the first requirement is not met and the development application is not exempt from public notification. Consequently, Ms Harris is an eligible applicant in respect of a reviewable decision.

135. We are satisfied that the Tribunal has jurisdiction to review the decision.

Consideration – substantive application

136. The principal concern of the applicant was the unlawfulness of the use of Block 34 for the purpose of an embassy. She saw that as, not only a reason why the development approval should not be given, but also that the unlawful use should not be allowed to continue. She made the point in relation to compliance with both the Territory Plan and the Crown lease.

Compliance with the Territory Plan

137. The applicant pointed to the distinction between Territory land and National land, saying that embassy use was not permitted on the former under the Territory Plan, but was permitted on the latter under the National Capital Plan.

138. The term "embassy" is not used for any permitted use listed under either Plan. The relevant term in the National Capital Plan is “Diplomatic Mission” which is defined as: Any building, parts of buildings and the land ancillary thereto leased specifically for use for the purpose of an embassy, a high commission, a 43 legation, or a consulate. This includes chanceries or diplomatic mission, and combined chanceries and residences

139. Relevant terms for permitted uses in the Territory Plan are “diplomatic residence” defined as: a dwelling specifically for the residential use of diplomatic staff of an embassy, high commission, a legation, or a consulate

42 This is a paraphrasing of our earlier finding 43 A variant of ‘chancelleries’ and “chancellery” which is given as an example of an “office” use: Office means the use of land for the purpose of administration, clerical, technical, professional or like business activities, including government office, which does not include dealing with members of the public, direct and regular basis except where this is ancillary to the main purpose of the office – chancellery, departmental offices, private sector offices, professional suite, statutory authority offices 44

140. The ordinary meaning of “embassy” is: 1. a body of people entrusted with a mission to a sovereign or government; an ambassador and staff 2. the official headquarters of an ambassador

141. The ordinary meaning of “chancellery” is: 3. the office attached to an embassy, etc

142. Significant in these definitions and meanings is the reference in the National Capital Plan to “combined chanceries and residences” in connection with use for the purpose of an embassy, and the permitted uses of “diplomatic residence” and “chancellery” under the Territory Plan. Clearly the combining of a place of residence for diplomats with their place of work results in what in ordinary terms is thought of as an embassy. The applicant is right to say that the natural place for foreign embassies to be located is on National Land, which is under the direct control of the Commonwealth. The Commonwealth did, indeed, co-locate embassies in particular precincts throughout the development of Canberra prior to self-government. The legislation implementing self-government designated those precincts as National Land. But at the same time the initial Territory Plan created precincts in O'Malley and Yarralumla in residential areas in which “diplomatic residence” and “chancellery” uses were permitted.

143. In our view, there is no difference between the position in the National Capital Plan where land leased for use for the purpose of an embassy specifically includes combined chancellery and residence, and the position under the Territory Plan where land may be used for both a diplomatic residence and chancellery. In each case the combination of uses is optional, but clearly is also permitted. A

44 Macquarie Dictionary Online 45 submission to that effect was put by the respondent in its written submissions and during the final hearing.

Compliance with the Crown lease

144. The applicant referred to two instances of cases before ACAT where embassies located within the AD 1 precinct were held to be not complying with the Crown 46 lease. Those cases do not, however, provide any precedent for this case as in each the lease purpose clause permitted use only “for residential purposes” as did the lease purpose clause for Block 34 before it was varied in 1992. For one of those leases, a temporary permission had been given which allowed an embassy to be operated, but that permission had expired well before the time the matter came before ACAT.

145. The present question is whether the lease as varied permits use as an ‘embassy’. While there is no use by that designation permitted under either the National Capital Plan or the Territory Plan – the point that the applicant has sought to make – the term is used with its ordinary meaning in the definitions of both Plans. It is thus easy to see that the terminology used, though different, is intended to convey that use as an embassy in the ordinary sense of that word is permitted. The same is true for the Crown lease.

146. Accordingly, use as an embassy is not unlawful.

Second dwelling

147. For the reasons given in our consideration of the jurisdiction question, there is no second dwelling. Further, given the view we take as to the proper interpretation of subclauses 1(g) and (h) of the Crown lease, the latter subclause is not operative whilst the building is being used for diplomatic residence and chancellery purposes, the detached extension being associated with the class 4 diplomatic residence component of the building. The reasoning to this effect in the Notice of Decision was correct.

45 20 October 2025 at [78] 46 Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47 ( Errington) and Estate of the late Chris Malaganeas v ACT Planning and Land Authority [2019] ACAT 105 ( Malaganeas) Privacy 47

148. In the Notice of Decision the authority said: the development is likely to have some but limited privacy impacts on the neighbouring properties… Privacy as a whole was carefully considered and conditions have been imposed in relation to this matter.

149. While confirming her concern about overlooking, the applicant made no comment about the nature of screening to be provided. We are satisfied from the evidence and our own view of the relative positioning evident at the site inspection that some provision to prevent overlooking will need to be made. We will return to this question below.

Conclusion

150. The application, for the most part, has not been made out. It has been successful on the question of privacy, however, and for that reason should not be dismissed.

Correct and preferable decision

151. The respondent submitted that its decision should not be set aside and remitted to the authority for further consideration, but varied by the imposition of a condition requiring a plan or drawing of the privacy screening to be submitted to the authority for endorsement prior to the release of stamped plans. It said that this approach would facilitate the simple resolution of the issues between the parties without further delay.

152. We prefer to remit the matter to the authority for several reasons: (a) Neither the Iranian government nor its chosen development applicant participated in the hearing of this matter. Had they done so the tribunal would have required them to produce plans or drawings of their proposed screening enabling the applicant an opportunity to make submissions as to the adequacy of the proposed screening. (b) While ordinarily a development applicant who did not participate in the hearing might not be given that latitude, the circumstances of the non-

47 T Docs 34 48 attendance in this case are unusual, and do not necessarily imply chosen non-participation. (c) Remittal as proposed will not delay the resolution of the issues any more than the imposition of the condition, as both courses require action to be taken by the Iranian Government/development applicant before approval is finalised and development can proceed. (d) The advantage of remittal is that, if action is not taken by the Iranian Government/development applicant within the period provided by section 167 the development application will be taken to have been refused – providing closure for Ms Harris. Conversely, if action is taken within time, she will have the opportunity of considering the proposal before it is accepted, and further application to the tribunal if necessary.

153. Further, although the approval decision reached an outcome which we consider to be appropriate, the reasons proceeded on the wrong premise for the characterisation of the proposal. Accordingly, it is not appropriate to affirm the decision.

Application for disqualification of tribunal members for apprehended bias

154. The applicant Ms Harris applied to the tribunal on 28 July 2025 for review of a decision of the respondent planning authority to approve with conditions a development application for a ‘detached extension’ on adjoining land. The matter was allocated to Senior Members R Arthur and A Wilson, who commenced their conduct of the matter at the first directions hearing on 25 August 2025. The directions hearing was adjourned to enable a formal application to be made by the respondent challenging the jurisdiction of the tribunal to hear and decide the application.

155. The tribunal determined that the substantive application and the jurisdictional challenge would be most efficiently dealt with by hearing the matters together.

48 The Australian Government expelled the Iranian ambassador and several diplomatic staff shortly after these proceedings commenced.

156. Following a timetable set by the Tribunal, the parties made submissions on both the substantive application and the jurisdictional question.

157. At the final hearing the applicant indicated that she wanted the Tribunal members to disqualify themselves on the basis of apprehended bias. She was directed to lodge a formal application to that effect.

158. The applicant lodged an interlocutory application on 18 November 2025 for an order that ‘the Tribunal senior members disqualify themselves for apprehended bias’. The Tribunal heard the application on the morning of 24 November 2025, and delivered its decision on the following day. The Tribunal members declined to disqualify themselves, with reasons to be provided later. What follows are those reasons.

Apprehended bias principles 49

159. The High Court in Ebner formulated the test for apprehended bias as being that a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The High Court went on to say that there are some other aspects of the apprehension of bias principle which should be recognised, and that the question is one of possibility (real and not remote), not probability, and involves two steps: (a) First, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and (b) Second, the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 50

160. In Johnson , the High Court observed of the hypothetical lay observer (citations omitted): Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic 49 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6] 50 Johnson v Johnson [2000] HCA 48 at [13]-[14] considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

161. In other cases, the High Court has said that the observer is presumed to have: 51 (a) knowledge of the actual circumstances of the case, and (b) an appreciation of the role of judge or tribunal in managing cases efficiently. As part of that process, the expression of a particular line of thinking to enable the parties to respond to it can be helpful in the 52 identification of real issues and real problems.

162. The High Court has also said: (a) That if there is a suggestion of pre-judgement, it must lead to a reasonable apprehension that the case might not be decided impartially or without prejudice, rather than that the officer might decide the case adversely to one 53 party. (b) that it is important that a judge or tribunal recognises that they have a statutory duty to perform and should not accede too readily to suggestions 54 of the appearance of bias.

Interlocutory application seeking disqualification

163. In her submissions dated 7 November 2025, the applicant pointed to conduct of the Tribunal which she said gave rise to a reasonable apprehension of bias. She was directed to lodge a formal application for the disqualification of the tribunal.

164. The applicant lodged an interlocutory application on 18 November 2025 seeking to have the Tribunal senior members disqualify themselves for apprehended bias.

165. After setting out a procedural background, the applicant identified conduct which she said raised “a serious concern as to the appearance of bias and a breach of procedural fairness, as the Applicant was denied the opportunity to participate in a hearing that was impartial, independent, and uninfluenced by the Respondent's

51 Laws v Australian Broadcasting Tribunal [1990] HCA 31 at 87 per Mason CJ and Brennan J (with whom Gaudron and McHugh JJ agreed) 52 Johnson v Johnson [2000] HCA 48 at [13]-[14] 53 Re JRL; Ex parte CJL [1986] HCA 39 per Mason J 54 Re JRL; Ex parte CJL [1986] HCA 39 framing of the issues, which did not address the substance of the Applicant's 55 case”.

166. The applicant identified 3 grounds for the application including those elaborated on in her submissions of 7 November 2025 and in the preceding procedural 56 history as follows: 1. Apparent Bias A fair-minded lay observer might reasonably apprehend that the current Tribunal members may not bring an impartial mind to the determination of: • Jurisdiction, • The characterisation of the development • the lawfulness of Embassy use, and • The merits of the Development Application This apprehension arises from: • The tribunal introducing matters not raised at the hearing, including a proposed conditioning pathway favourable to the respondent, • Comments by Senior Member Arthur indicating reluctance to exercise full merits jurisdiction • Acceptance of the Respondent's ongoing failure to produce the registered Crown lease (contrary to S 120 ACAT Act) • The sequencing and framing of the proceeding, which has elevated the respondent's jurisdictional arguments to the detriment of any merits review. These circumstances satisfy the test in Ebner. 2. Procedural Unfairness Procedural fairness has been compromised by: • The tribunal's introduction of Question 2 which prejudges outcome by proposing a referral back for further conditioning if jurisdiction exists • Prolonged delays caused by the Respondent's late or incomplete documentation • Lack of equal opportunity for a self-represented Applicant to respond to new issues raised post hearing, • The Respondent's repeated failure to provide the registered lease instrument preventing proper assessment of lawful land-use

55 Application for Disqualification of Tribunal Members (Recusal Application) dated 15 November 2025 at 2 - 3 56 Application for Disqualification of Tribunal Members (Recusal Application) dated 15 November 2025 at 3- 4 This conduct is inconsistent with S 6 ACAT Act which requires Tribunal processes to be fair, just, economical and prompt. 3. Loss of Confidence in Impartial Conduct of the Proceeding Across multiple stages – including document production, post-hearing questions, and the Tribunal's treatment of submissions – the cumulative effect is a reasonable perception that: • A predetermined pathway has been adopted • The substantive merits review is being constrained • Material favourable to the Respondent is being allowed despite non-compliance • The Applicant cannot present their case on equal footing Accordingly, reassignment is necessary to maintain public confidence in the Tribunal’s integrity and independence.

167. The applicant introduced her submissions of 7 November 2025 in the following 57 terms: This supplementary submission is filed in compliance with the tribunal's Order dated 3 November 2025. the applicant respectfully submits that the framing of the Tribunal's questions, The manner in which the Order was issued, give rise to an appearance of bias and procedural unfairness. The Applicant is self-represented and seeks and accessible, impartial review process as required under S 6 of the ACAT Act. However, the proceedings have been disproportionately weighted towards, and sequenced from the outset by giving initial and then continuing primacy to, jurisdictional arguments favouring the respondent, rather than addressing the substantive planning law issues central to this dispute. The Tribunal's Question 2 further exemplifies this bias, proposing a pre-empted outcome not raised during the hearing – specifically, that if jurisdiction is established, the Decision should merely be set aside and referred back for further conditioning. This presupposition limits the Tribunal's discretion, undermining procedural fairness. 58

168. The applicant then identified certain conduct of the Tribunal: (a) Directing parties to address Question 2 which she characterised as focusing “on whether, if jurisdiction is established, should the Decision simply be ‘set-aside and referred back to the Authority to make a further condition for the provision of screening, as referred to in clause 3 (B) of the Decision?’”,

57 Supplementary submission in compliance with Tribunal’s order dated 3 November 2025, dated 7 November 2025 at [1] 58 Supplementary submission in compliance with Tribunal’s order dated 3 November 2025, dated 7 November 2025 which prejudged the outcome and limited the applicant’s right to a full merits review. (b) The Tribunal’s “focus on narrow jurisdictional issues, from the outset, which has shielded the Respondent's unlawful decision from proper scrutiny”. (c) Senior Member Arthur’s reply to the applicant’s question whether the Tribunal could make a decision to refuse the development application – that “we don't like to do that at the Tribunal” as “[conveying], in context, a predisposition against examining the Tribunal's full merits review jurisdiction”.

169. The applicant said that this conduct gave rise to a reasonable apprehension of bias.

170. In an affidavit affirmed 20 November 2025 Ms Harris repeated these matters in greater detail.

Application hearing

171. The interlocutory application was heard on the morning of 24 November 2025. The applicant spoke to her written material, and made further extensive oral submissions principally related to the detrimental effect on her of the use of the adjoining land as an embassy. The respondent authority did not address the Tribunal.

Consideration

172. The concerns of the applicant are understandable when looked at in the light of what she says occurred over the course of the proceeding. However, her understanding of those events is coloured by some inaccuracy of recollection and, perhaps, her unfamiliarity with the workings of the Tribunal.

Framing of the questions

173. At the hearing on 3 November 2025 the Tribunal explained to the parties that it felt that there were further issues which had not been fully explored by the parties in their submissions about the Tribunal’s jurisdiction. The Tribunal also explained that, if it did not regard the decision as unlawful, it would need to consider the other aspects of the proposed development including whether if the detached extension was approvable the Tribunal could ensure that the applicant’s privacy was protected from overlooking.

174. The Tribunal then set out two questions which it proposed to ask the parties to address in further submissions and invited the parties to consider what might be the appropriate form of those questions. It also adjourned the hearing for a short time to enable the respondent (which would have to deal with the matter if it was remitted to it) to consider the implications for it of remittal.

175. On resumption, the respondent’s counsel asked if he could set out the respondent’s understanding of the questions to be posed, and he did so. The Tribunal then said that the questions so framed covered what the Tribunal had in mind. This cannot be characterised as the Tribunal acceding to questions framed by the respondent for the respondent’s benefit.

Senior Member Arthur’s reply

176. When Senior Member Arthur said that the Tribunal “did not like to do that” it was, and was explained to be, in recognition of the fact that the Iranian Government had taken no part in the proceedings, but was the entity affected by a refusal of its development application – although they had been notified of the proceedings there was potential procedural unfairness in making such a decision in their absence. That absence was also a factor in the adequacy of privacy being determined by the Tribunal with appropriate certainty. Self-represented litigants

177. The difficulties faced by an unrepresented litigant in the tribunal are well understood. The Tribunal always tries to what it can to make that task less difficult. In this case the Tribunal permitted the applicant to be assisted at her request by Mr Inglis who sat beside her at both the directions hearing of 12 September and the final hearing on 3 November 2025. The jurisdiction issue

178. The applicant is right to point out that the jurisdictional issue occupied a large proportion of the time and attention of the Tribunal – at least that part of it which was visible to the parties. However, that it was treated as a priority was a function of the fact that if the tribunal did not have jurisdiction, it could not address the substantive application. The respondent’s decision approving the development application would then stand. That was not an outcome in the applicant’s favour.

179. Prioritising the jurisdiction question was not at the expense of full merits review. The Tribunal had pointed out that there was a significant overlap in the evidence contained in the jurisdiction issue and also to the merits review. The applicant provided extensive and comprehensive evidence and submissions which obviously were the product of a lot of research. At the hearing, the Tribunal told the applicant that the members had read that material and so it was not necessary for her to repeat it by way of oral submission, unless she wished to expand on or emphasise particular points.

180. The applicant did raise some points, including the unlawfulness of the continued use of the land as an Embassy after the expiry in 1995 of the temporary permission for embassy use given in 1992. The applicant referred to the Errington 59 and Malageneas cases as precedent for the unlawfulness of embassy use . The Tribunal pointed out that in this case the Iranian government had bought premises with a Crown lease permitting residential purposes only, but six months later had varied the lease to include diplomatic residence and chancellery, the latter arguably being a lawful basis for use as an embassy.

Reasonable apprehension of lay observer

181. Because the hypothetical lay observer would be aware of the matters just referred to it is not likely that the observer might reasonably think that the Tribunal might not approach the determination of the issues in the case impartially. The procedure adopted by the Tribunal was calculated to inform the Tribunal and clarify the issues in the way that seemed most efficient to the Tribunal. To the extent that the procedure adopted might be thought to be leading to a particular outcome which would be adverse to one party, there is no suggestion that the Tribunal might not be acting impartially if that were the case.

59 The circumstances of those cases are referred to above Conclusion

182. The applicant has identified many events that occurred in the course of the proceedings with which she is dissatisfied. She has not, however, spelt out the logical connection between those events and the impartiality or prejudice on the part of the Tribunal members that would prevent it from deciding the case on its merits. The cumulation of factors seen to be against one party does not amount to a basis for apprehension of bias unless at least one of those factors objectively points to bias. None of the applicant’s complaints about specific events sought to make that connection.

183. In those circumstances, the members presently constituting the Tribunal decline to disqualify themselves from the hearing and determination of these proceedings. Senior Member Arthur’s association with Counsel

184. Shortly after the Tribunal had delivered its decision in this matter, I became aware that the applicant had notified the tribunal registry that both Senior Member Arthur and counsel for the respondent Authority were members of Blackburn Chambers, a set of barristers’ chambers in the ACT. Although I was not advised as such, I have assumed that the applicant intended to treat this matter as a further reason for my disqualification for apprehended bias.

185. I acknowledge that I did not disclose this association to the applicant, although I am aware that members of the public do not always understand the nature of the relationship between barristers such that disclosure is appropriate. I did make a disclosure on the only other occasion on which I have been a Tribunal member hearing a matter in which one of the parties was represented by a member of Blackburn Chambers and other parties were self-represented. 60

186. In Bakarich Campbell JA was asked to disqualify himself from hearing an appeal from the decision of a judge with whom, as barristers, he had shared chambers. He described the nature of the relationship between barristers: The “actual circumstances of the case” concerning the circumstances in which barristers share chambers is that, while it provides the opportunity for the sort of friendly relations to develop that are usual between professional colleagues, those colleagues can also be one’s competitors. Sharing chambers also provides a means whereby the overhead expenses of a barrister’s practice can be shared, but

60 Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 per Campbell JA at [26] that in itself produces no more closeness of relations than arises from people who share a home unit building sharing some of the overheads of that building. I had no financial or social association with Mr Sackar or Nicholas J, beyond that which is inherent in barristers sharing chambers. [The ‘actual circumstances of the case’ is a reference to the passage in Laws noted above at fn 3]

187. My circumstances are the same. I have no financial or social association with other barristers in Blackburn Chambers beyond the professional relationship described in the extract above. Campbell JA declined to disqualify himself, and I also do so.

188. Although I have a professional association with counsel for the respondent, I do not have a professional interest in the outcome of these proceedings beyond adhering to my affirmed promise on appointment as a member of ACAT “to do right by all manner of persons”. Moreover, counsel for the respondent and his client have no professional interest in the outcome of these proceedings – the task of the Authority is to implement the Territory Plan in accordance with the Planning Act, and that of counsel to assist the Tribunal to understand the Authority's position to the best of his ability and then to explain it to the Tribunal. There is thus no logical connection between the fact of the association and the 61 suggested concern that I might not decide this case on its merits.

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

Date of hearing: 3 November 2025 Applicant: In Person Counsel for the Respondent: Mr J Larkings Solicitors for the Respondent: ACT Government Solicitor

61 Cf Attorney-General (NT) v Director of Public Prosecutions & Ors [2013] NTCA 2, per Kelly J at [39]