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TRIBUNAL: Senior Member R Arthur Senior Member A Wilson DATE: 22 September 2026

ORDER The Tribunal orders that:

1. The decision under review is confirmed.

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

Background 1. IP Property Botany Street Pty Ltd (IP, or the applicant) sought approval for the demolition of an existing building on Block 1 Section 42 Phillip and the construction of a building, described in the development application as: A 4 storey building with an attic. The proposed building includes a ground floor to be used for commercial uses including a restaurant, beer garden and seating. Levels 1, 2, 3 and attic are to be used to house 56 serviced apartments … [Two levels of basement providing] 47 parking spaces … [and a variation of] the Crown lease to add commercial 1 accommodation, Hotel and Serviced Apartments, and ancillary uses …

2. The original DA 202240071 was accompanied by detailed plans (the original plans). Prior to the decision of the Australian Capital Territory Planning and Land Authority, now known as the Territory Planning Authority (the TPA or the respondent), on the application, IP sought to amend the application by the submission of a new set of plans (the 144G amendment plans). Those plans were to modify levels two and three to match the layout of level one and associated windows and doors and planters; modify mezzanine storage areas to levels one and two; modify level three to add stairs to attic; modify attic to include dormer windows; modify plant level and roof screening to plant; and remove lower basement.

3. The TPA refused the development application on 11 June 2024.

4. IP sought reconsideration of the refusal decision making some changes to the terms of variation of the Crown lease.

5. The TPA on reconsideration confirmed on 1 November 2024 its previous decision on reconsideration.

6. IP then applied to ACAT for review of the reconsideration decision. A hearing was set to commence on 17 March 2025. On 24 January 2025 IP delivered to ACAT a new set of plans (the January plans). On 11 March 2025 IP delivered to ACAT a further new set of plans (the March plans).

1 T-docs, page 1093-4 Hearing

7. The hearing commenced before Senior Member Arthur and Senior Member Wilson on 17 March 2025 with Mr B Buckland of counsel appearing for the applicant, IP, and Ms K Musgrove appearing for the respondent, the TPA. The Tribunal advised the parties that it had concerns about the state of the development application such that it did not think that it was in a position to approve it. After hearing from the parties, the Tribunal dismissed the application on 18 March 2025, confirming the reconsideration decision.

Supreme Court appeal

8. IP then sought, and obtained, leave to appeal the decision of the Tribunal in the 2 Supreme Court. The Supreme Court delivered its decision per Muller AJ on 5 August 2025.

9. The orders of the Supreme Court were: (4) The orders of the ACT Civil and Administrative Tribunal made on 18 March 2025 are set aside. (5) The matter is remitted to be heard and decided again by that Tribunal according to law with the hearing of such further evidence as the parties may wish to lead.

10. Following remittal, the matter was again allocated to Senior Member Arthur and Senior Member Wilson for hearing and determination.

Disqualification application

11. At the initial directions hearing an application for the Senior Members to disqualify themselves was foreshadowed. A formal application was subsequently made and heard by us on 15 September 2025. We declined to disqualify ourselves, with reasons to be provided later. Those reasons appear at the conclusion of these reasons.

Directions

12. After consultation with the parties as to the form and mode of further evidence, directions were given and a timetable set for each party to exchange (and give to

2 IP Property Botany Street Pty Ltd v Territory Planning Authority [2025] ACTSC 346 the Tribunal) witness statements of any witnesses on whose evidence they intend to rely and documents referred to, and written submissions referring to the factual matters on which the Tribunal should base its decision in favour of the party, and why it should do so. Evidence lodged with the Tribunal for the previous hearing of the matter is evidence for the purposes of the further hearing.

Further hearing

13. The further hearing commenced on 24 November 2025. The parties and the Tribunal had conducted a site view before the first hearing which the Tribunal, with the consent of the parties, considered did not need to be repeated.

14. At the further hearing IP was represented by Mr B Buckland of counsel, and the TPA by Ms K Musgrove of counsel.

15. The hearing occurred over two days, incorporating the evidence and submissions filed for the initial hearing.

16. Evidence in the form of witness statements was given for IP by: (a) Hugh Gordon dated 24 January 2025 and 11 March 2025. (b) Niclesse Mariette dated 24 January 2025 and 5 November 2025. (c) Nathan Ross dated 29 January 2025 and 11 March 2025. (d) Graeme Shoobridge dated 24 January 2025 and 18 November 2025. (e) Paige Hall dated 5 November 2025.

17. Mr Gordon, Mr Mariette and Mr Ross gave oral evidence and were cross-examined.

18. Written submissions of IP were received dated 29 January 2025, 11 March 2025, 5 November 2025, 21 November 2025 and 3 December 2025.

19. For the respondent, a witness statement of Richard Davies was filed. Mr Davies gave oral evidence and was cross-examined.

20. Written submissions of the respondent were received, dated 25 February 2025, 19 November 2025, and 1 December 2025.

21. Both parties made a further oral submissions.

The decision under review

22. The task of the Tribunal is to review the decision of the delegate of the Territory TPA, on reconsideration (Reconsideration Decision), to confirm the original decision of the TPA to refuse the development application (Original Decision).

23. The development was commenced under the now repealed Planning and Development Act 2007 (PD Act) in 2022. By the end of 2023, the application had yet to be decided.

24. On 27 November 2023 the PD Act was repealed and the Planning Act 2023 (P Act) came into effect. Under the transitional provisions of the P Act, the application, not having been decided, was deemed to continue to finalisation under the PD Act: 613 Development applications made before commencement day (1) (This section applies if, before the commencement day— (a) a person made a development application under the repealed Act, chapter 7 (Development approvals); and (b) the application has not been finally decided. (2) The repealed Act continues to apply in relation to the development application despite its repeal. (3) However, the development application may be amended under the repealed Act, section 144 only if the applicant asks for the amendment not later than 6 months after the commencement day. …

25. Section 613(3) precludes the ability, formerly enjoyed by the applicant under the PD Act, to ask for an amendment to the application under section 144, if the request was not made by 27 May 2024 (6 months after the commencement day of the P Act).

26. The Original Decision was made on 1 June 2024. The reconsideration decision was made on 1 November 2024. The applicant lodged its application with the Tribunal on 29 November 2024. Jurisdiction of the Tribunal

27. The direct authority of the Tribunal to review the decision is given by section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act): (1) This section applies if the tribunal reviews a decision of an entity. (2) The tribunal may exercise any function given by an Act to the entity for making the decision (3) The tribunal must, by order – (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and – (i) make a substitute decision; or (ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

28. Section 68 applies to all applications made to the tribunal for a review of a decision. By section 9, an application for review must the authorised by a law. In the case of decisions made under the PD Act, authorisation is given by: 408A Applications for review An eligible entity for a reviewable decision may apply to the ACAT for review of the decision.

29. Eligible entities and reviewable decisions are listed in Schedule 1 to the PD Act – in this case the applicant was an eligible entity in respect of a reconsideration decision under section 193, Schedule 1 Item 11. 193 Reconsideration (1) If the planning and land authority receives a reconsideration application, the authority must— (a) reconsider the original decision; and (b) not later than 20 working days after the day the authority receives the application— (i) make any decision in substitution for the original decision that the authority could have made on the original application; or (ii) confirm the original decision.… (3) Also, the planning and land authority may only reconsider the original decision to the extent that the development proposal approved or refused in the original decision or part of the original decision— (a) is subject to a rule and does not comply with the rule; or (b) is not subject to a rule. … (6) Also, in reconsidering the original decision, the planning and land authority— (a) must consider any information available to the authority when it made the original decision and information given in the reconsideration application; and (b) may consider any other relevant information.

30. The decision which the applicant seeks to have reviewed is recorded in the Notice of Decision on Reconsideration dated 1 November 2024 to confirm the decision dated 11 June 2024 made in relation to the Development Application No 202240071. This application proposed the demolition of the existing building and construction of a new four storey building plus attic with one level of basement car parking, ancillary commercial use on the ground floor, 61 serviced apartments, roof terrace, landscaping and associated works along with a lease variation at Block 1 Section 42 Philip. The Original Decision refused the development application.

31. The TPA initially refused the development application as required under section 119 of the PD Act. The application was refused because it did not comply with the legislated requirements for merit track applications. It was assessed as being inconsistent with the advice given by entities and with the provisions of the current Crown lease. In relation to section 120 of the PD Act, it was considered to be inconsistent with certain objectives, not suitable for the land, not supported by referral entities to which it had been referred, and involved a probable noise impact.

32. In its reasons for the Reconsideration Decision the TPA noted the reasons for refusal of the original DA and observed that, in the reconsideration development application, no design and siting changes were proposed to the proposal in the original development application, and the supporting information was largely the same being limited to proposed changes to the lease variation component. It then considered these issues and confirmed the Original Decision. Application to the tribunal

33. In its application, the applicant sought an order that, “pursuant to section 68(3)(c)(i) of the ACT Civil and Administrative Tribunal Act 2008, the decision be set aside, and substituted with a decision to approve the Development 3 Application”.

34. The reasons given for applying for review were: The applicant contends that the correct and preferable decision is that the Development Application be approved pursuant to sections 119 and 120 of the Planning and Development Act 2007 (ACT) for reasons including but not limited to: 1. The Development Application complies with the Territory Plan; 2. The Development Application is consistent with the relevant zone objectives; and 4 3. The Land is suitable for the proposed development.

35. However, in its submissions dated 29 January 2025 the applicant set out the transitional provisions of the P Act including section 613, and then said (citations omitted): 5 It is clear from ss 613(3) that the Applicant cannot request, and the Tribunal cannot allow, an amendment to the DA under section 144 of the PDA. This does not, however, prevent the DA from being amended by the Tribunal by a condition under section 162 of the PDA. 6 The power of the Tribunal to amend developments by the imposition of conditions is well established. It is, of course, subject to the requirement that any condition imposed be sufficiently certain, that it is capable of being understood and complied with and that it not substantially alter the development which is the subject of the proposal. This is, however, more a question of drafting than one of legal power – condition requiring changes to a development which is clear, normally by reference to particular amended plans, will be more than sufficiently certain to be valid. 7 The Applicant thus submits that the Tribunal has the power to amend the DA which is the subject of this application, so long as 5 those conditions are within the bounds described above.

3 T-docs, page 8 4 T-docs, page 7 5 Applicant’s submissions dated 29 January 2025. Walkington v ACT Planning and Land Authority [2010] ACAT 81 was cited.

36. In these paragraphs, the applicant acknowledged that an amendment after 27 May 2024 is precluded, but says that there is a well-established power in the tribunal to amend developments by the imposition of conditions, and which is available in this case. Such conditions are subject to certain requirements including that they not substantially alter the development.

37. The applicant then set out a series of answers to the reasons for refusal of the 6 Development Application in the Notice of Decision. It then submitted again that the DA is capable of approval subject to conditions. It said that it would provide wording for proposed conditions as part of its submissions in reply, after it had seen the respondent's submissions and evidence.

38. In its submissions dated 20 February 2025 the respondent identified various changes that were proposed to the development application which it said were amendments and therefore not allowed, which we have summarised as: (a) New electrical substation on the ground floor within the building, with consequent changes to the dimensions and area of the restaurant and alterations to the basement car park ceiling to accommodate the substation; (b) New lower level basement car park; (c) Overhead electrical wires to be placed underground; and (d) Variation of the Crown lease.

Issues for determination

39. The matters in dispute have been outlined in the preceding paragraphs. Each deserves consideration, although the section 613(3) of the PD Act issue identified by the applicant has a potential to determine the application as a whole. It is therefore convenient to consider that issue first.

40. Nonetheless, we should also consider the other issues raised by the reasons for refusal and, lastly, consider the nature and scope of permissible conditions that emerged in the initial hearing.

6 Applicant’s submissions dated 29 January 2025 at [41]

41. In addition, it would be appropriate to consider more general matters that may inform a discretionary component of the Tribunal's decision.

“Amendments v Conditions”

42. In its submissions in reply of 11 March 2025, under the heading “Amendments v Conditions”, the applicant challenged the TPA’s “characteris[ation of] the applicant’s proposed conditions as amendments” and then submitted: [5] First as regards the legal superstructure, it is important to be quite clear about whether amendments to development proposals are permitted, and if so what kind of amendment is allowed. The restriction on amendments emerges from subsection 613 (3) of the Planning Act 2023 … [6] In terms, that subsection only places a restriction on the capacity of the development applicant to request an amendment under section 144 of the [PD] Act. It does not remove the [TPA's] power, or this Tribunal's power, to approve development proposal subject to condition under section 162 of the [PD] act. There is no support for such a reading of this subsection … … [9] The power to impose these conditions is not dependent upon an application under section 144 having been lodged. Rather this is a power which exists within the discretion of the respondent to approve a development subject to condition. It is a power which now vests in the Tribunal. [10] In Walkington v ACTPLA [2010] ACAT 81, [that Tribunal] considered the scope of the Tribunal's power to impose conditions on a development approval. The Tribunal's consideration at [23]- [28] of the breadth of its powers in this case deserves consideration, and the applicant commends the whole of that passage to the Tribunal.

43. There are several issues raised in these paragraphs: (a) What kinds of amendment may be allowed? [at 5] (b) What is the nature of the power of the authority and the tribunal to approve a development proposal involving an amendment without reference to section 144? [at 6 and 9]

44. The context for these issues is section 162 of the PD Act: 162 Deciding development applications (1) The planning and land authority or, [the Minister exercising the call-in power], must— (a) approve a development application; or (b) approve a development application subject to a condition; or (c) refuse a development application. Walkington

45. Before considering those issues, it is necessary to set out further the reasons in Walkington v ACT Planning and Land Authority [2010] ACAT 81 (Walkington), particularly the passage at [23]–[28] said to be deserving of particular consideration. Those paragraphs are set out (footnotes omitted): 23. The Tribunal is empowered by section 68 of the ACAT act to exercise any function given by the Planning Act to the Respondent for making the decision in relation to the DA. Moreover, as stated above, when exercising its powers under section 68, the Tribunal “stands in the shoes” of the decision maker. Therefore it is unremarkable that the Tribunal may exercise the power under section 165 of the Planning Act to approve the DA subject to conditions. The power to impose conditions is wide ranging and, as argued by the Developer Party Joined and the Respondent, includes the power to require changes to be made to any plan, drawing, specification or other document forming part of the application for approval under section 165(3)(p) of the Planning Act. Hope J in Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (“Cambridge”) indicated that, generally speaking, these conditions may deal with many matters but undoubtedly they include the site, size, shape, design and other characteristics of buildings erection of which approval is sought. 24. However, there is a line to be drawn between conditions which amend an existing development proposal and conditions which are so great as to destroy the substance of the original application. The test that has been applied by the courts is whether the condition which is imposed by the decision-maker amounts to a complete rejection of the DA. 25. [Consideration of the need to adopt an expensive interpretation of jurisdiction to avoid error of law]. 26. [Crispin J in McKenzie v ACTPLA [2004] ACTSC 80] considered that it is clearly open to a tribunal to approve a development application subject to conditions which require amendment to the plans for the proposed structure and he could see “no reason to doubt that the tribunal could take into account any proposal put forward to meet concerns expressed by objectors or, indeed, by the Tribunal itself.” 27. However, his Honour stated further that a tribunal would “clearly not be entitled to consider a completely different development application and the distinction between these two situations may depend upon questions of degree.” 28. In McKenzie, Crispin J accepted a submission that amendments that could have been adopted as a valid condition of approval of the initial development application fell within the Tribunal's jurisdiction, particularly where those amendments were motivated by concerns expressed during the hearing. This approach was urged upon the Tribunal by [counsel for the developer party joined]. [He] emphasised that the proposed development was of a smaller scale and the original development and constituted four rather than six units. This development may have been the subject of conditions imposed by the respondent following the original application. Similarly, the AAT decided in Pashalidis that while the new plans showed that there were “not insignificant differences in architectural design of the proposals … the essential ingredients [were] sufficiently similar as not to justify a conclusion that the new plans involve the making of a fresh application”.

46. Earlier, the Tribunal in Walkington said (citations omitted): 13. Section 144 of the [PD Act] is concerned with amending DAs and provides that the planning and land authority may, if asked by the applicant, amend a development application, but its powers to do so are limited by subsection 144(2) which provides that: (2) However, the planning and land authority must not amend the development application unless satisfied that – (a) the development applied for after the amendment will be substantially the same as the development applied for originally; and (b) the assessment track for the application will not change if the application is amended. 14. In the event that a decision has been made by the authority to amend an application that has previously been publicly notified … section 146(2) provides for further public notification of the amended application … However, section 146(3) empowers the authority to waive the requirement for public notification of the amended application under certain circumstances. These circumstances will be discussed below. 15. [Counsel], on behalf of the Developer Party Joined, submitted that the Tribunal has jurisdiction to deal with the revised plans by approving the application with conditions under sections 162(1)(b) and 165(3)(o)-(p) of the Planning Act and that the conditions could include the submission of new plans in accordance with the revised proposal tabled at the hearing. He did not consider that it was necessary to invoke the provisions of section 144, but if that provision was regarded as applicable, then in his submission the revised plans were substantially the same as those originally submitted. 16. [Counsel] referred to McKenzie v ACT Planning and Land Authority where it was held by Crispin J that: a) it was clearly open to the Tribunal [the former ACT Administrative Appeals Tribunal - ("the AAT")] to approve a development application subject to conditions which required some amendment to the plans for the proposed structure and the Tribunal should take into account any proposal put forward to meet concerns expressed by objectors, or indeed by the Tribunal itself; and b) the amendments could have been adopted as valid conditions of approval of the initial development application pursuant to section 245 of the Land (Planning and Environment) Act 1991 (ACT). 17. [Counsel] also referred to the decisions of the AAT in Cvetanoski & Ors and Commissioner for Land and Planning and Pashalidis and ACT Planning and Land Authority (“Pashalidis”) and of this Tribunal in Davidson v ACT Planning and Land Authority & Ors, each of which addressed the question of whether or not a variation to a proposed development was sufficiently different from the original as to warrant being regarded as a fresh application. In each case, the Tribunal concluded that the two sets of plans were sufficiently similar as to not justify the making of a fresh application involving public notification. 18. [Counsel] observed that the former Tribunal had frequently approved variations to development proposals based on new plans submitted prior to or during hearings to overcome the objections of applicants … by making the submission of revised plans a condition of approval. The former Tribunal had also often imposed conditions on a development arising from its own consideration of a proposal, including significant changes such as requiring a reduction in the number of units allowed to be built. 20. [Counsel], on behalf of the Respondent, took a similar view. He submitted that it was not necessary for the Tribunal to concern itself with section 144, as it was hearing the matter de novo and could utilise the powers available to it under sections 162 and 165 to attach conditions to an approval requiring that revised plans be submitted.

47. The Tribunal in Walkington also said (underlining added): 29. Relying upon the authority of Cambridge, McKenzie and Pashalidis the present Tribunal similarly concludes that the new plans in the present case do not involve the making of a fresh application … 30. In coming to this conclusion, the Tribunal considers that the scaling down of the development so as to reduce impact is a relevant consideration. Moreover, the changes proposed had been made to meet the objections of the Applicants and the Applicants have indicated that … they would probably have no objections … 31. The Tribunal takes the view that, in deciding whether it has jurisdiction in relation to the revised plans, it must take into account section 144 of the Planning Act. The Tribunal considers that the statutory formula set forth in sections 144 to 146 of the Planning Act provides a framework within which the respondent (ergo the Tribunal) must consider whether an amendment to DA is of such significance that public notification must be contemplated … 32. The Tribunal considers that the Developer Party Joined, by seeking to make changes to the DA which are not insignificant, is in essence asking the Tribunal to amend the development application. Such a request invokes the responsibility under section 144(2) of the Planning Act to be satisfied that the development applied for after the amendment will be substantially the same as the development applied for originally and that the assessment track applying to the application will not change if the application as amended. 34. … In relation to section 145, while the original application was referred to various entities the Tribunal was satisfied that the proposed amendment of the application does not affect any part of the application in relation to which any entity had made a comment and hence the Tribunal concluded in accordance with section 145(4) that it need not refer the amended application to any of the entities to which the original proposal was referred. 35. Section 146 of the planning Act must also be considered. This section applies if the planning and land authority amends a development application and the making of the application has been publicly notified [the Tribunal then ordered a modified form of public notification which it considered appropriate to meet its obligations under section 146].

48. In the underlined passage above, the Tribunal in Walkington has identified, and then applied as the basis of its decision, the fact that a request for amendment has been made thus invoking the application of sections 144–146.

49. In earlier submissions dated 21 November 2025 the applicant said that it was noted in Walkington that “the distinction between an amendment and a condition is difficult to discern and more a matter of degree than one of fact”. We do not think that the Tribunal in Walkington makes that point. Rather it was being said that the power of the Tribunal to impose conditions arises, through section 68 of the ACAT Act, by virtue of the power of the TPA to allow amendments to a development application.

50. There is a difference, however, between the role of the TPA and that of the Tribunal in that an amendment accepted by the Authority becomes part of the development application, but is subject to further consideration as part of the overall consideration leading to a decision under section 162. The way in which the Tribunal’s powers to deal with the decision under review are framed precludes approval in that way but enables an amendment to be ‘inserted into’ the development application and then approved by the mechanism of a condition.

51. It follows that Walkington is not authority for the proposition put to us by IP that the power of this Tribunal to impose conditions is not dependent upon an application under section 144 having been lodged, but rather this is a power which exists within the discretion of the respondent to approve a development subject to condition, which is a power that now vests in the Tribunal.

Decisions subsequent to Walkington

52. In Baptist Community Services – NSW and ACT v ACT Planning and Land Authority [2012] ACAT 58 (Baptist Community Services), the Tribunal reviewed a decision of the Planning and Land Authority on reconsideration. After referring to the authorities that have been mentioned above, the Tribunal continued: 32. The question of the relationship between sections 144 and conditional approvals under sections 162(1)(b) and 165 has not been considered in depth by this Tribunal or its predecessor [i.e. ACAT or the ACT AAT]. Section 144 clearly relates to a request by the developer to amend a DA. By contrast section 162(1)(b) allows the Tribunal to approve a DA with conditions and section 165 sets out in some detail the kinds of conditions that might be imposed under section 162(1)(b). Most are of a kind that do not relate to design and siting considerations, but rather to the timing, staging and standard of development or to steps that must be taken to vary existing leases, licences and approvals. 33. However, those in subsections 165(3)(o) and 165(3)(p) read (o) that plans, drawings and specifications or other documents be prepared by the applicant and lodged with the planning and land authority for approval before the development or a stated part of it starts; (p) requiring changes to be made to any plan, drawing, specification or other document forming part of the application for approval [Then counsel for the respondent] submitted that these provisions were sufficient to enable the Tribunal to approve the proposed development, either by requiring the appeal plans to be submitted for approval before development starts (under section 165(3)(o)) or by requiring changes to be made to the reconsideration plans that reflect the amendments shown in the appeal plans (under section 165(3)(p)). 34. While the provisions of sections 162(1)(b) and 165 are available to be used in circumstances where the applicant has submitted a revised set of plans containing changes to aspects of the proposed development as is the case here, or where the Tribunal has decided that changes should be made in the light of evidence and submissions that hearing, we do not think that that absolves us from considering whether or not this is an amended proposal that falls under section 144. 35. In this case, we consider that the changes proposed in the appeal plans are extensive and that it would not be appropriate to ignore the provisions of sections 144, 145 and 146. We prefer to regard the presentation of the appeal plans to the Tribunal as a request for amendment of the DA and, hence, subject to section 144 considerations.

53. As in Walkington, the Tribunal recognised the importance of a request to amend as initiating the process of amendment, and the consequential need to consider in full, sections 144, 145, and 146. In doing so, it expressly declined the invitation of counsel to apply sections 162 and 165 only, saying that it was necessary to consider whether or not there was an amended proposal that fell under section 144. 7

54. In other later decisions, Tribunals have referred to Walkington as authority for its application of sections 144–146, and followed it.

55. The decision in Raphael v ACT Planning and Land Authority [2010] ACAT 89 (Raphael) is an outlier in that sense, in that the Tribunal did not apply section 7 Glass v ACT Planning and Land Authority [2016] ACAT 47 at [22]; Deakin Residents Association Inc v ACT Planning and Land Authority [2015] ACAT 37 at [17]; City Hill Pty Ltd v ACT Planning and Land Authority [2012] ACAT 80; ACT Rural Landholders Association Inc v ACT Planning and Land Authority [2014] ACAT 22 at [35]; Edquist v ACT Planning and Land Authority [2011] ACAT 64 at [8]; Raphael v ACT Planning and Land Authority [2010] ACAT 89 at [11]-[13] 144, and regarded itself as reconsidering the authority’s decision. Having rejected the respondent’s submission that it apply section 144 (in respect of new plans submitted at the hearing), on the basis that the amendments were minor in comparison with those in Walkington, the Tribunal accepted a submission from counsel for the developer that it was therefore more appropriate to deal with the matter as a reconsideration under section 193 of the [PD] Act, relying if necessary on section 165 to impose any conditions that might be required. Citing the statement of Crispin J in McKenzie v ACTPLA [2004] ACTSC 80 (McKenzie) (“it is clearly open to the Tribunal [the AAT] to approve a development application subject to conditions which require some amendment 8 of the plans”) in support, the Tribunal in Raphael varied the decision under review by imposing a new condition (in place of an existing condition) requiring the new plans to be submitted and approved. We will say more about this decision below.

56. The Tribunal in City Hill Pty Ltd v ACT Planning and Land Authority [2012] ACAT 80 considered the mechanics of section 144 in detail, and particularly the meaning of “substantially the same”. After surveying decisions in other jurisdictions the Tribunal concluded that the “fresh application” test provided the most useful guidance.

Present day application of authorities cited in Walkington

57. Although the development application in Walkington was lodged under the PD Act, all of the authorities referred to by the Tribunal in that case concerned development applications lodged under the Land (Planning and Environment) Act 1991 (LPE Act).

58. The LPE Act was repealed by the PD Act in late 2007. All the provisions in the PD Act which are relevant to this case are replicated (with different numbering) in the P Act. The structure and provisions of the LPE Act were, however, different from that of the PD Act (and P Act).

59. That difference is a reason for caution when seeking to apply those cases in the present day. 8 McKenzie at [18]

60. First, for present purposes, there was no equivalent in the LPE Act of sections 144, 145 and 146. There was only a power to “alter” a development on request, which did not have an equivalent of section 144(2) limiting permissible alterations. There was also no indication as to whether, or when, re-notification might be required. To fill the notification vacuum, the ACT Administrative Appeals Tribunal developed the “fresh application” test borrowing from New South Wales authorities such as Cambridge Credit Corp. Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590, considered in McKenzie and referred to in Walkington.

61. Secondly, for present purposes the powers of the Authority to decide development applications are structured differently. Under section 230 of the LPE Act, the Authority had power to approve, or to refuse, a development application. The power to approve on condition was contained in section 245, which also set out a non-exhaustive list of examples of conditions that could be imposed. Under the PD Act, however, the power to impose conditions is contained in section 162 (185 of the P Act) which empowers the authority to approve, approve subject to a condition, or refuse a development application. Separately, section 165 sets out a non-exhaustive list of examples of conditions that may be imposed.

62. While the overall content of the provisions in all three Acts is the same, the location of the power to approve subject to a condition in a separate provision in section 245 of the LPE Act has the potential to cause confusion. In some of the authorities referred to above section 165 is referred to as the source of power to approve on conditions.

63. The Tribunal in Walkington, referring to the opinion of Crispin J in McKenzie, stated: it was clearly open to the tribunal … to approve a development application subject to conditions which require some amendment to the plans for the proposed structure and the Tribunal should take into account any proposal put forward to meet concerns expressed by 9 objectors, or indeed by the Tribunal itself.

9 Walkington at [16(a)]

64. It is difficult to regard a judicial statement of that kind in relation to a legislated scheme as a stand-alone legal principle capable of general application – if it is to have such effect it must be formulated by reference to related legislation, and be limited by its facts.

65. His Honour did not fully articulate the legal basis for that opinion – in particular he did not refer to the Tribunal ‘standing in the shoes of the authority’ nor to section 44 of the Administrative Appeals Tribunal Act 1989 (ACT), the then counterpart of section 68 of the ACAT Act. He did, however, refer to section 245 of the LPE Act which was the then counterpart of section 162 of the PD Act in the paragraphs both before and after his statement – indicating that he was anchoring his opinion on the power of the Tribunal to approve a development application subject to condition, not on some wider and independent basis. He also set out the factual circumstances in which the matter had been raised in the proceeding.

66. Accordingly, with respect and subject to the explanation which follows, we consider his Honour’s opinion to be a correct statement of the law applicable to the current regime, when understood in the context of section 68 of the ACAT Act and section 162 of the PD Act (and section 185 of the P Act). We consider below the operation of section 162 in the context of an amendment to a development application. What we have to say would have applied equally to the power to “alter” a development application under the LPE Act.

67. In addition to, or intertwined with, the issues raised by IP’s submission above, several issues emerge for further consideration from these cases: (a) Uncertainty about the nature and extent of change which amounts to an amendment. (b) The need for a request for an amendment to trigger the application of sections 144–146. (c) The almost complete lack of reference to section 68 – in this respect, however, these decisions replicate the reasoning in decisions of Tribunals over several decades. The power of the Tribunal to approve changes put to it at the hearing by means of approval subject to conditions, has been a given (for Tribunals and legal practitioners alike) without, seemingly, the basis of that power ever being spelled out beyond references to “standing in the shoes …”. (d) The degree of discretion in the use of conditions on approval of amendments put to the tribunal at hearing.

What is an amendment?

68. The PD Act allows for changes to be made to a development application, by correction of a formal error, and by amendment. The relevant provisions are: 143 Correcting development applications (1) The planning and land authority may, on the authority’s own initiative or on application, correct a formal error in a development application. (2) However, the planning and land authority must not make a correction if making the correction would adversely affect someone other than the applicant. … 144 Amending development applications (1) The planning and land authority may, if asked by the applicant, amend a development application. (2) However, the planning and land authority must not amend the development application unless— (a) the authority is satisfied that— (i) the development applied for after the amendment will be substantially the same as the development applied for originally; and (ii) the assessment track for the application will not change if the application is amended … (3) The planning and land authority must, not later than 5 working days after the day the applicant asks for the amendment— (a) amend the development application; or (b) refuse to amend the development application. (4) If the planning and land authority does not tell the applicant that the authority refuses to amend the application within the time given under subsection (3), the authority is taken to have amended the application.

69. The legislative framework (presumably the “legal superstructure” referred to by the applicant) makes for only two ways in which changes to a development application can be made – by formal correction or amendment: (a) The Authority may make a formal correction of its own motion, or at the request of the development applicant. (b) The Authority has no power to amend an application, without there being a request from the applicant to do so. (c) There is no power to amend a development application conferred on any other person or entity. (d) The refusal of either a formal error or an amendment is not a reviewable decision.

70. ‘Amendment’ is not a defined term. The ordinary meaning of ‘amend’ is “to 10 alter by due formal procedure”. The ordinary meaning of ‘alter’ is “to make 11 different in some particular, modify”. The ordinary meaning of ‘different’ is “1. differing in character; having unlike qualities; dissimilar” or “not identical; 12 separate or distinct”.

71. As a matter of statutory interpretation, the term is to be applied according to its ordinary meaning, there being no textual qualification, nor anything in the surrounding provisions, which might suggest that its meaning may change according to circumstances.

72. In some of the earlier decisions considered above there were suggestions that 13 14 any changes needed to be “extensive” or ”not insignificant” before they should be regarded as an amendment for section 144 purposes. Those instances involved a number of changes being considered for their overall effect. The statutory term, however, must be capable of applying to a single change of an isolated element, as well as to a group of changes. That is necessary if the section 144 gateway is to be effective in identifying the development application as it evolves to the point of an approval decision.

10 Macquarie Dictionary (online at 19 August 2026) ‘amend’ (def 1) 11 Macquarie Dictionary (online at 19 August 2026) ‘alter’ (def 1) 12 Macquarie Dictionary (online at 19 August 2026) ‘different’ (def 1 and 2) 13 Baptist Community Services at [35] 14 Walkington at [32] – on a par with “not trivial”

73. Apart from the correction of error, there is no other means of changing the development application. Something is altered or it is not – it is not a question of degree. However, the de minimis principle whereby trivial changes are legally disregarded also applies in the administrative law arena.

74. It follows then, that an ‘amendment’ is an alteration to the development application with an order of magnitude somewhere between trivial on one hand, and causing the development not to be substantially the same as the original on the other hand. Whether it is to be notified is to be determined by the application of section 146.

75. There is also a distinction to be made between further information and an amendment. If the former merely clarifies an aspect of the development – for example, specifying dimensions on a drawing, type of materials etc – it may not be an amendment unless it introduces an element which was not implied in the original.

Discretion of the TPA to approve subject to condition

76. At [6] – [9] of its written submissions of 11 March 2025 above, IP submitted that “in terms” section 613(3) of the P Act only places a restriction on the capacity of a development applicant to request an amendment under section 144 of the PD Act. It does not remove the TPA's power, or the Tribunal's power, to approve a development proposal subject to conditions under section 162 of the PD Act. Rather, this is a power which exists within the discretion of the TPA to approve a development subject to conditions. It is a power which now vests in the Tribunal.

77. IP submitted that it was proposing conditions that the Tribunal could impose to address issues arising in the course of the matter. It said that that conclusion arises from express terms of the PD Act, and referred to sections 165(3)(o) and (p).

78. There are three aspects of this submission that require closer consideration: (a) That the TPA's power to amend the development application (“the amendment power”) and its power to approve it subject to condition (“the condition power”) are discrete powers – each unaffected by the existence of the other. (b) Consequently, that the TPA has power both to amend a development application under section 144, and independently to approve subject to a condition the effect of which is to amend the development application under section 162. (c) That the Tribunal has the same powers.

79. The Tribunal in Baptist Community Services noted that only two of the conditions listed as examples in section 165 (3) are related to design and siting ((o) and (p), later renumbered as (p) and (q)), and so involved amendments of 15 the development application – the rest did not. There is no question that the latter can be imposed under the condition power alone. The question is whether the former can also be imposed under that power alone.

80. As the Tribunal has noted, the TPA does not have power to amend a development application (as opposed to correct a formal error) of its own motion. It can do so only at the request of the development applicant – “[It] may, if asked by an applicant amend a development application”.

81. When a requested amendment is made by the TPA it is subsumed into the development application, becoming part of what may then be approved subject to conditions. Consequently, any condition imposed which has the effect of altering the development application, could not have been requested under section 144. If it had been, the request would have to have been made before the making of the decision and would therefore have been dealt with under section 144. Thus, any decision to approve subject to a condition having the effect of altering the development application would have been made by the TPA of its own motion, which it has no power to do.

82. There is incongruity in the TPA having a power to amend under section 144 only by request, and another power with the potential to reverse that amendment by condition under section 162, without request. Yet, that is the consequence of

15 Baptist Community Services at [33] IP’s contention that the amendment power and the condition power are discrete powers.

83. That contention can be accepted only if section 144 and section 162 are, as a matter of interpretation, truly unrelated. As a general principle, a statutory provision should be construed so that it is consistent with the language and purpose of all the provisions of the statute: its meaning must be determined by 16 reference to the language of the statute are viewed as a whole. Provisions should be given a construction that will render them harmonious. Thus, other provisions of a statute may reveal that a particular expression in one provision is to have a meaning which is broader or narrower than might at first be thought.

Section 68(3) of the ACAT Act and sections 162 and 193 of the PD Act – spheres of operation

84. The Tribunal is reviewing a decision by an entity – the TPA. Section 68(1) applies subsections (2) and (3) to that review.

85. Section 68(3) is set out in full above. In summary, it requires the Tribunal to make an order either confirming the decision, varying the decision, setting aside the decision and substituting another decision, or remitting the matter to the respondent.

86. Section 68(2) says that for the purpose of reviewing a decision the Tribunal has the functions of the decision-maker for making the decision. Those functions include, at the core, the decision-making power under section 162 which, in summary, requires the respondent to approve the development application, approve it subject to a condition, or to refuse it.

87. In essence, section 68(3) determines what the Tribunal must do, while section 68(2) determines how the designated task is to be carried out.

88. In this matter, the Tribunal is reviewing the Reconsideration Decision which was made pursuant to section 193 of the PD Act. Under section 193, the Reconsideration decision-maker must reconsider the Original Decision and

16 Legislation Act 2001, s 140 make any decision in substitution for it that the Original decision-maker could have made, or confirm the decision.

89. The Original decision-maker refused the development application. The Reconsideration decision-maker confirmed that refusal.

90. IP wants the Tribunal to approve the development application which was refused by the Original decision-maker but subject to a condition to the effect that the development application incorporates the March plans.

91. Of the orders under section 68(3) of the ACAT Act which the Tribunal must make, only setting aside and substituting a decision can achieve what IP seeks, as it picks up the function of the TPA under section 193 (making a decision that the Original decision-maker could have made). Variation is not available because section 193 does not allow the Reconsideration decision-maker to vary the decision, but only to confirm or make a decision in substitution for the Original Decision.

92. Although Raphael presents as a precedent for varying the decision under review the Tribunal in that case, while conscious that it was ‘standing in the shoes of a decision maker’, appears not to have considered what section 68(3) required it to do when considering the nature of the Reconsideration Decision-maker’s functions in relation to the range of decisions a decision-maker could make under section 193 – that is, it was limited to making a decision in substitution 17 for the decision that had been made. The decision in substitution would have to be to approved subject to a condition under section 162.

93. In order to approve subject to a condition as requested, the Tribunal must review the Reconsideration decision, and make a decision in substitution for the Original Decision, being a decision that the original decision maker could have made, and take into account any new information.

94. As explained earlier, the TPA has no power to amend the development application unless it is requested to do so.

17 Nonetheless, with respect, the outcome appears as appropriate on the facts

95. The Original Decision-maker could not have approved the development application under section 162(1)(b) on condition that it be amended to incorporate new plans, because the March plans were not any part of the material before the Original-decision maker.

96. The Reconsideration decision-maker could not have substituted a decision that the Original decision-maker was unable to make – only a decision that it would have been able to make. Thus it was also limited by the absence of the March plans. Of the orders under section 68(3) which the Tribunal must make, only setting aside and substituting a decision can achieve what IP seeks, as it involves a function of the TPA under section 193. Variation is not available because the Reconsideration Decision-maker can only confirm or make a decision in substitution for the Original decision.

97. Having only the powers of the Reconsideration decision-maker, this Tribunal is arguably constrained, as was the Reconsideration decision-maker, by the fact that the Original decision-maker could not have made the required decision. But the Tribunal has before it new information in the form of the March plans which, having the functions of the Reconsideration Decision-maker, it must take into account. While section 68(3) and section 162 say it must be taken into account, whether and what the Tribunal can take into account is determined by section 68(2).

Section 68(2) – standing in the shoes of the decision-maker 18

98. ACAT’s section 68(2) powers (having the functions of the primary decision-maker) are not greater, or lesser than, or different from those which may be exercised by the decision-maker for the making of the decision. The High Court considered this question in relation to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) – which is in the same terms as section 44 of the Administrative Appeals Tribunal Act 1989 (ACT) and materially the same as 19 section 68 of the ACAT Act – in Frugtneit v ASIC (Frugtneit).

18 Defined in the Legislation Act 2001, Dictionary of terms generally used, as including ‘authority, duty and power’ 19 [2019] HCA 16

99. In Frugtniet, ASIC had found Mr Frugtniet to be not a fit and proper person to be involved in credit activities, even though it had not considered “spent convictions” pursuant to a provision of the Crimes Act 1914 (Cth) (Crimes Act) which prohibited Commonwealth authorities from taking such convictions into account.

100. On appeal to the Administrative Appeals Tribunal (AAT), the question arose whether another provision of the Crimes Act, which appeared to have the effect that the prohibition did not apply to a tribunal such as the AAT, meant that the AAT could take into account spent convictions in deciding fitness and propriety. It was argued that the AAT could take into account the spent 20 convictions, even though ASIC could not. A plurality of the High Court said: 49 [The contested provision] says nothing more of present relevance than that [the prohibition] has no application to a tribunal established by statute taking information into account for the purpose of making a decision. The operation of [the prohibition] does not go beyond non-application of [the prohibition]. [It] does nothing to alter the statutory jurisdiction of the tribunal. In particular, it does not make a spent conviction relevant to be taken into account in the exercise of that jurisdiction. 50 Understood in this sense, the apparent conflict between [the contested provision] and the AAT's review jurisdiction falls away. The jurisdiction of the AAT, on review under section 327 of the Credit Protection Act of a decision made by ASIC under s 80 of the Credit Protection Act is unaffected by [the contested provision]. 51 That is because, except where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision maker whose decision is under review so as to determine for itself on the material before it the decision which can and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision maker, subject to the same constraints. The primary decision, and the statutory question in answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration

20 Bell, Gageler, Gordon and Edelman JJ which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT. 52 To accept the argument put forward by ASIC would distort exercise of the powers conferred on the AAT by s 43(1) of the AAT Act for the purpose of reviewing a decision of ASIC under s 80 of the Credit Protection Act: where spent convictions were a relevant factor in the AAT's determination, the AAT could not sensibly remit the matter to ASIC for reconsideration in accordance with any directions or recommendations of the AAT because ASIC would then be required to ignore the spent convictions; and any decision by the AAT varying or in substitution of ASIC’s decision would be deemed by 43(6) to the a decision of ASIC, even if that varied or substituted decision took into account spent convictions which ASIC was required to ignore. 53 The AAT and the primary decision-maker exist within an administrative continuum. The AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary-decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration. 54 The decision-making power of ASIC under s 80 of the Credit Protection Act is constrained by [the provision] of the Crimes Act to preclude ASIC taking spent convictions into account. The decision-making power of the AAT is subject to the same constraints in the exercise of the jurisdiction conferred on it by s 327 of the Credit Protection Act and ss 25 and 43 of the AAT Act.

101. The contested provision did not alter the statutory jurisdiction of the AAT. It did, however, remove the ability of ASIC to take account of spent convictions and so precluded the AAT, when exercising the powers of ASIC, from doing so. In the matter before this Tribunal, the TPA has no power to amend the development application if it is not asked to do so. The possibility of a request being made to the TPA has been removed by section 613(3). The TPA consequently remains without power to amend the development application. It follows, applying section 68(2) of the ACAT Act that this Tribunal is likewise without power.

102. Other instances of the curtailment of a tribunal's powers in this way can be found in Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission (2003) 77 ALD 192 847 where it was necessary for the decision-maker to take into account a ministerial determination constraining the manner in which the decision was to be made, and so also the AAT. In Issa and Australian Community Pharmacy Authority [2012] AATA 374 it was held that where a decision-maker could only grant an approval on the recommendation of an expert committee, then likewise the AAT could not decide to approve in the absence of a recommendation.

103. There is now a clear line of ACAT decisions starting with Walkington that establishes: (a) New plans put to the Tribunal on review to address concerns raised in the Notice of Decision, or by objectors or the Tribunal itself constitute a request by the development proponent to amend the development application. (b) Such a request is to be considered by the Tribunal in the light of sections 144, 145, and 146 of the PD Act (now 168, 171, and 178 of the P Act).

104. The engagement of section 144 in this way is, obviously, dependent on there being a request for amendment being put to the Tribunal. IP has conceded from the outset that it cannot request, and the Tribunal cannot allow, an amendment to the DA under section 144 of the PDA. It nonetheless asks the Tribunal to amend the development application by a condition under section 162 of the PD Act. As we have explained above, the necessary precondition for the Tribunal to have the power for this to happen is in the making of a request to amend. This is why the course pressed on the Tribunal by IP is fundamentally flawed and must be rejected.

105. In holding that, we also reject the submission that there was an obligation on the TPA to have notified IP of the last TCCS advice given before the Reconsideration Decision. In the provision of a six-month grace period in which an amendment application could be made, there is a legislative recognition of the need to be fair, but equally, legislative intention that the final loss of opportunity was absolute. There is no other way in which the clear words of section 613(3) of the P Act can be applied.

106. The power to approve subject to condition was a function of the TPA as Original Decision-maker and Reconsideration Decision-maker. In neither case had a request been made at the time the decisions were made, let alone before the cut-off date. The power could not be exercised by the Tribunal because the request had not been made in time. In accordance with Frugtneit, “a consideration which the primary decision-maker must not take into account 21 must not be taken into account by the [ACAT]”.

107. Just as ASIC could not take account of spent conditions and neither could the AAT, the TPA’s lack of power to amend in the absence of a request marks the boundary of ACAT’s power to amend in this case.

Integration of the development assessment processes

108. The Reconsideration Notice of Decision identified the failure to provide further information and inconsistency with referral entity advice as factors in the refusal decision. In the consideration of those matters it is important to understand the context, and their significance.

109. In the presentation speech introducing the Planning and Development Bill 2006 the Minister identified the below goals (interspersed with many others) of the 22 new legislation: ▪ maintaining and promoting a single integrated development assessment path ▪ increas[ing] operational efficiency, integrat[ing] development and building assessment processes and reduc[ing] administrative complexity and repetition

110. The legislative scheme evident in sections 140–146 and 148–151 of the PD Act reflects the aspirations referred to by the Minister. It marked a significant difference from what was provided under the LPE Act.

21 Frugtneit at [51] 22 Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 14 December 2006, 4137, (Simon Corbell, Attorney-General, Minister Police and Emergency Services and Minister for Planning) Further information

111. There are parallel systems within the assessment process proper for determining at any given time what a development application consists of: (a) Following the lodgement of development application (and at times thereafter) the Authority may request further information from the applicant to be provided within a specified time (section 141(1)). The Authority may extend that time (section 141(4)). (b) Refusal to extend time is a decision reviewable by ACAT (Schedule 1 Item 1) (c) If the development applicant does not provide some or all of the information requested, the Authority may refuse the application under section 162 (section 142). (d) Such further information, if not previously provided to an entity, may be referred to that entity if there is a need to do so (section 141A). Amendment

112. The Authority may correct a formal error in the application on its own initiative or on application by the applicant (section 143). It may also refuse to do so. That refusal is not a decision reviewable by ACAT. (a) The Authority has no power to amend the application, unless it is asked to do so by the applicant, and it may only do so if satisfied that the development will be substantially the same, and the assessment track will not change. The Authority may refuse to amend the application so long as it does so within five working days after receiving the request (section 144). The refusal is not a decision reviewable by ACAT. (b) Unless the Authority is satisfied that the proposed amendment does not affect any part of the application in respect of which any entity had given advice, it must refer the amended application to the entity for its advice (section 145).

113. The Authority has adopted a system for ensuring that further information provided by applicants, and amendments requested by applicants, are properly received and documented. It requires an applicant to make an administrative application. The administrative applications are lodged in the same manner as the original development application, enabling all to be processed uniformly to ensure version control. Particular applications and their type – further information or amendment – are identified by a unique letter issued sequentially 23 as applications are received, prefixed by S141 or S144.

Entity referrals

114. The PD Act made provision for the referral of development applications to specified entities, receiving their advices, and the purpose and effect of this process. The provisions are largely mandatory. In summary they: (a) Require the Authority to refer the development applications to the entities in full (section 148). (b) Require the entity to give its advice to the Authority within 15 working days, (section 149), in default of which the entity is deemed to have supported the application (section 150). (c) If the Authority has received further information from the development applicant, require the Authority to refer that further information to an entity unless satisfied that the nature of the advice received would not require that to be done. (d) In making its decision whether to approve the application under section 119, the Authority must not approve, if that would be inconsistent with any entity advice, unless it is satisfied that it has considered appropriate guidelines, any realistic alternative, and consistency with the objects of the Plan. (e) Some Codes preclude the Authority’s approval unless the approval required by Code has been given.

115. These actions of referral and the giving of advice are formal parts of the assessment process, as demonstrated by the mandated consideration by the Authority of advice given. 23 Cross-examination of Richard Davies, transcript of hearing on 24 November 2025, page 80 line 36 – page 81 line 37

116. Further, they provide the basis for the development applicant to resist any actions post-approval of the entity which are inconsistent with advice given (section 140(2)) – and conversely allow the entity certainty in its post approval control of works with which it is concerned (section 151).

117. This certainty is facilitated through the provisions in the Legislation Act 2001 (section 245) prescribing the manner in which that advice is to be given between agencies. Thus any communication purporting to be from the entity to the Authority which occurs outside the prescribed methods is not to be regarded as constituting advice.

118. To this end the Authority and the entities appear to have developed an information exchange protocol to ensure that communication occurs through established channels and ensuring that the connection between request and responses is identifiable – as can be seen in the T-docs at pages 83–112.

119. The successful integration of these processes into one system is essential to its operational efficiency. Cooperation on the part of development applicants is critical to this. Refining a development application through request for further information and its prompt provision by applicants is a critical element in that efficiency – a legislative intention demonstrated by the availability of ACAT review if an extension of time for provision of information is refused on the one hand, and by the correlative sanction for non-provision through the refusal of the development application, on the other hand.

120. Systematic recording of communications and version control are key features.

Entity referrals and advice

121. The significance of entity advice has been noted above.

122. It is also a key consideration for the TPA’s decision of the development application.

123. Section 119 of the PD Act states: 119 Merit track—when development approval must not be given (1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with— (a) the relevant code; and …... (2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that— (a) the following have been considered: (i) any applicable guidelines; (ii) any realistic alternative to the proposed development, or relevant aspects of it; and (b) the decision is consistent with the objects of the territory plan.

124. Section 120 of the PD Act states: 120 Merit track—considerations when deciding development approval In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following: … (f) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;

125. Elements 6 and 22 of the Commercial Zones Development Code states: Element 6: Noise Intent: a) To promote a high level of amenity. Rules Criteria 6.1 Potentially noisy uses R23 This rule applies to any of the This is a mandatory requirement. following: There is no applicable criterion a) club b) drink establishment c) emergency services facility d) hotel e) indoor recreation facility f) industry (except light industry) g) indoor entertainment facility h) outdoor recreation facility i) restaurant. Development complies with a noise management plan prepared by a suitably qualified person and endorsed by the Environment Protection Authority (EPA). The noise management plan will detail the proposed design, siting and construction methods that will be employed to ensure compliance with the Noise Zone Standard as detailed in the Environment Protection Regulation 2005, based on the estimated noise levels when the facility is in use.

Element 22: Utilities Rules Criteria 22.1 Utilities … … R67 A statement of compliance from This is a mandatory requirement. each relevant utility provider (for There is no applicable criterion. water, sewerage, electricity, stormwater and gas) is provided, which confirms that the location and nature of earthworks, utility connections, proposed buildings, pavements and landscape features comply with utility standards, access provisions and asset clearance zones.

126. The Notice of Decision on Reconsideration in its Reasons (Part A) records that the original DA was primarily refused due, inter alia, to non-support by several entities, that no significant design and siting changes were proposed in the reconsideration application and because the supporting information was largely the same as in the original DA.

127. With reference to sections 119 and 120 of the PD Act, the Reasons say that the application was assessed as being inconsistent with the advice given by the EPA, TCCS, Evoenergy and ICON. It notes that the issues raised such as traffic and parking, compliance with water, sewerage and electricity networks, noise, contamination and hazardous materials remain, were largely raised by the entities in relation to the original DA and were not addressed in the reconsideration DA.

128. In relation to the Commercial Zones Development Code mandatory rules it noted that: (a) Rule 23 – Potentially noisy uses – required a noise management plan endorsed by the EPA to be provided. A plan had earlier been provided. It was not acceptable to the EPA which required further information to be submitted to the EPA for review and endorsement prior to approval of the DA. (The Tribunal notes that at T-docs 568 this advice was given in October 2023 and was the subject of a request for information in December 2023. The requested information was not provided before the original decision in June 2024, nor prior to the decision on reconsideration in November 2024). The notice records that the EPA had identified problems in the proposed changes to the lease variation, in relation to noisy uses and raised it as an issue in relation to the original DA and identified it as a reason for refusal. The applicant had opted not to provide a revised NMP and proposed that it be deferred to post decision stage which is not supported by the EPA. (The Tribunal notes that this position was reasserted when the applicant lodged its application for reconsideration at T-docs page 320 – “is considered appropriate as a post-approval compliance matter which can be included as part of the NOD”). (b) Rule 67 – Utility statements of compliance – requires a statement of compliance from utilities including ICON (water) and EvoEnergy (electricity) to be provided in relation to the relationship between the development proposal and the utility's network – particularly in achieving clearances to overhead and underground assets. The Notice of Decision on Reconsideration notes that Evo advice was that the proposal is not supported. (The Tribunal notes that ‘FAILED TO COMPLY’ notices were issued by Evo in October 2024, and October 2023 at T-docs pages 83–84, 558–560, and in March 2023 at T-docs pages 807–809. The earliest of these identified the requirement for an electrical substation to be an Indoor Chamber Type Substation if not able to be pad mounted externally, and identified the general requirements. This issue had not been addressed by the applicant by the time of the reconsideration decision. (The Tribunal notes that a plan showing for the first time a substation (Indoor) was lodged with the Tribunal two weeks prior to the hearing. It was not accompanied by any evidence as to his suitability in that location – it was simply shown as a box without visible means of access internally or externally).

129. ICON provided advice stating that the reconsideration DA is not supported since Design Acceptance is required and ICON is unable to assess the current application until an ‘in Principle’ acceptance of the External Services Plan is obtained.

130. It was noted in the decision that these entities had raised similar issues in the Original DA which were identified as reasons for refusal.

131. In relation to the Parking and Vehicular Access General Code it noted (extracted from Part A): The proposed development with 61 [Commercial Accommodation Units] (CAUs) … and… [stand-alone restaurant and drink establishment generate a parking requirement… [of a total] of 67 car spaces including 2 accessible spaces. The 61 CAUS require 44 longstay on site or within 100m within the boundaries of the Woden Town Centre. Typically, visitors and customers to restaurant and drnk establishment require short stay parking within 200m of the site and operational parking must be on-site or immediately adjacentOnly 22 car spaces (32%) including 2 accessible spaces proposed on site to operate as valet parking. This resulted in a significant shortfall of 45 spaces and heavy reliance on public on-street parking and car parks. The Parking Report states 'additional' tandem parking can be provided on site but it is not demonstrated how it can be achieved or how many additional spaces can be provided. The Report also states that there is available parking in the vicinity of the site, but no parking survey has been provided to demonstrate availability. Proposed parking is not allocated noting the potential for stand-alone uses of restaurant and drink establishment. It is not clear if the accessible spaces are for the 3 accessible CAUs or visitors to restaurant and drink establishment. Also, details of the proposed valet parking such as pick-up/drop-off location, time of operation, any associated changes to road and on street parking spaces, etc., have not been provided. As such the DA has not demonstrated there is adequate parking for the proposed development and is not supported by TCCS.

132. Further details in the form of a summary of TCCS advice were set out in Part B of the notice (page 7) (emphasis original): No direct responses to the previously requested further information are saying in the reconsideration submission. The response to NOD comments document prepared by Canberra Town Planning outlines below response to our S 141I RFI (Image 1). The response does not adequately address our previous concerns which must be resolved prior to Design Review. This includes the valet service and potential changes to road and public on-street parking spaces which needs consultation with relevant asset owners such as Roads ACT. TCCS have also not received any proposed drawings to understand the proposed function of the valet service and if there are likely changes to the existing Traffic Control Devices.

133. The ‘Image’ referred to was a statement in the Canberra Town Planning (which was the designated development applicant) report in support of the reconsideration application.

134. The latest comments from TCCS relate primarily to concerns around traffic and parking with additional data required to demonstrate the surrounding parking availability in the area. A condition is also listed to require a valet service for the basement parking to manage the tandem car space proposal. These conditions are considered to be resolvable as part of post-approval compliance requirements and requirements for design acceptance by TCCS. These matters are considered appropriate for inclusion in the NOD conditions of approval, but not sufficient as grounds for refusal of the application.

135. Counsel for IP, having submitted that there was an obligation on the TPA to ask for information, and then asked by the Tribunal whether there was any obligation on the development applicant to put relevant information before the 24 decision-maker, responded:

24 Transcript of hearing on 25 November 2025, page 147 line 35 – page 148 line 10 The development applicant is required to put forward the application which it says is complete and contains everything. I accept that. But if the application – I mean, this is not a counsel of perfection. The planning process does not erase all capacity for human error. People can forget to attach documents. People can forget to prepare certain plans and parts of sets of plans. We are talking about development applications that in certain circumstances can run to hundreds if not thousands of pages, with many detailed consultant reports. If there is something which is missing or misdescribed amongst those myriad documents but the development application is otherwise capable of being approved, there are a number of different ways to deal with it. There is a formal request for further information in the old section 141, or there is a condition of section 165 requiring the provision of further plans. There are a variety of different ways to deal with this particular issue. The planning system does not expect perfection. The planning system expects people to put forward their case as to why they should be given an approval to seek the privilege of conducting a particular activity according to law, and then the process works its way through, with a variety of different consultants involved, with a variety of different entities involved, to see whether it is in fact capable of being approved.

136. We agree with this description of the process – it accords with the intent of the system described above – but it is not a description of the approach taken by IP in this case.

IP’s evidence for the hearing on 17 March 2025

137. Outside the timeframe set by the Tribunal for the provision of its evidence, IP filed witness statements from Hugh Gordon dated 24 January 2025, from Niclesse Mariette dated 24 January 2025, from Nathan Ross dated 29 January 2025, from Graeme Shoobridge dated 6 February 2025 (all filed on 6 February 2025), and further statements from Hugh Gordon and Nathan Ross dated 11 March 2025.

138. Mr Gordon's statements annexed architectural drawings done by him on instructions received in January 2025. Significant changes (for present purposes) included an internally located substation, a second lower-level basement for car parking, and removal of access doors to the exterior from the restaurant, replaced by an internal door leading to the lift lobby.

139. Mr Marriette was a town planner who said that he had been instructed on 20 January 2025 to prepare a Report by way of Response to Reconsideration 25 Notice of Decision. In that report he said: Proposed development being applied for is limited to ‘Commercial Accommodation Use’ in the form of a ‘Hotel’ and/or ‘Serviced Apartments’ only, operated on a commercial basis, with associated/ancillary facilities of a Restaurant/Bar (as permitted under the definition), and that no form of ‘Residential" use is proposed’… As well as reverting the Lease Variation component included in the Reconsideration application by only removing ‘Drinking Establishment’ and the Distillery/Brewery classification from the ‘Restaurant’ use

140. In his 29 January 2024 statement, Mr Ross said: I am a qualified Development Professional ... [and] was and am responsible for liaising with the entities and attempting to engage with all entities that did not support the DA. However, as we have just had the Christmas and New Year it means that responses from entities have been slower. … On 13 January 2025, I reached to the EPA liaison officer to request clarification on comments in the Notice of Decision and Notice of Decision on Reconsideration … I noted to EPA that IP would not press to add “drinks establishment” as a primary use and would not press to include “distillery/brewery” on the Crown lease. EPA supports the removal of these two items and the noise management plan will only need to be slightly adjusted to suit the new commercial accommodation with an ancillary restaurant. IP is in the process of obtaining an amended noise management plan which will be provided to the EPA once available.

141. In his 11 March 2025 statement, Mr Ross said: I have liaised with Alan Subkey from Paradigm 42 Pty Ltd in relation to the updated noise management plan. Alan prepared an updated noise management plan and recommended a change to the layout. Alan suggested the entry to the restaurant should be through the lobby to the commercial accommodation, so that acts as an airlock. (A copy of the updated Noise Management Plan was annexed to his statement).

142. Mr Shoobridge is a traffic engineer who had provided several reports utilised previously in the development application. Annexed to his statement was a new report prepared by him responding to matters raised by the Authority and TCCS in the Notice of Decision on Reconsideration

25 Response to Reconsideration Notice of Decision, page 5

143. There was no evidence that any of the significant new documents – the architectural drawings, the updated NMP, or Mr Shoobridge's new report – had been shown to any of the entities.

IP's further evidence – further hearing

144. IP filed a further witness statement from Niclesse Mariette, and a witness statement from Paige Hall on 5 November 2025. Graeme Shoobridge provided a further Report dated 12 November 2025.

145. Ms Paige Hall is a solicitor with responsibility under supervision for the carriage of the matter for IP. Her statement annexed various correspondence which she had been given. Unfortunately, the annexures have been mixed up, but it is possible to be reasonably confident which correspondence concerns which relevant communication.

146. Mr McLennan from Sellick Consultants gave her an e-mail from a TCCS officer to him, the gist of which appears to be that TCCS had not received anything in response to their comments on Traffic and Parking when giving entity advice on the Reconsideration application.

147. She also said that on 5 November 2025 she had been given an e-mail from Mr Micalos to Mr Tim Wyatt in the latter’s reply with what seems to be an earlier e-mail chain. The result appears to be that TCCS had sought legal advice and were clarifying several details before they could respond further.

148. Ms Hall was also given a copy of an “In Principle Design Acceptance” from ICON water sent on 15 September 2025 to Mr McLennan of Sellick Consultants attaching three stamped plans. The covering letter said that “this design can be submitted to the ACT Government’s development application process as part of your project’s submission documentation”.

149. Mr Shoobridge provided a further report headed “Clarification of Proposed Valet Parking Arrangements for Proposed Development”. He attached an e-mail from Tim Wyatt to Alex MacLennan and Peter Micalos saying that TCCS (now known as CED) is satisfied that previous concerns regarding on-site parking have been addressed with the addition of the second basement. It then said “This endorsement is conditional on a valet service being implemented post-construction to manage the use of tandem car parking spaces. It is understood that there are no plans to amend or displace existing parking in the public domain for the valet service as part of the development application”.

150. The evidence that has been provided is deficient in two respects: (a) That it is not enough to satisfy us that we have the necessary knowledge to impose the requested conditions – a matter which we take up further when considering the proposed conditions; and (b) More importantly, there is a question whether we should entertain such evidence at all.

151. In regards to the latter, we have earlier dealt with the importance of, and the legislated and administrative mechanisms implemented to enhance, the integrity of the development assessment process. Accepting the evidence provided to the Tribunal as to what various entities have done and said undermines the rationale for the established communication protocols between agencies and the ability to achieve the required level of efficiency which is their purpose. Though independent, the Tribunal is part of the administrative decision-making process of government. In order to promote the objects set out in section 6(e) and (f) of the ACAT Act – to enhance the quality of decision-making under legislation, and to encourage, and bring about, compliance in decision-making under legislation – it may be necessary for the Tribunal to discourage communication outside those protocols.

152. We consider this to be a case in which it would be appropriate to do so. Nonetheless we have considered the evidence, if only to assure ourselves that it would not advance IP’s case in any event.

Conditions

153. From the outset it has been IP’s position that the development application is capable of being approved subject to conditions.

154. The respondent’s witness Mr Davies was cross-examined at length by counsel for IP in relation to his imposition of conditions when acting as a decision-maker delegate of the TPA. He was taken to five Notices of Decision authored by him over a period of several years. The purpose of the cross-examination, later explained in submissions, was to show that the alternative conditions proposed at the end of the hearing were suitable because they had been employed by Mr Davies in his various Decisions.

155. To the extent that Mr Davies was able to recall the detail behind the various conditions he was taken to, the exercise was helpful to the Tribunal. In some instances Mr Davies was able to say, for example, that the “level of information that we would have had before the authority to make that decision would have 26 influenced the crafting of those conditions”. He agreed that there may be times when the amount of available information may be insufficient and satisfaction of the condition would involve several attempts on the part of the development 27 applicant including “way too often” the need for amendment of the approval to accommodate a significant change.

156. The impression left on the Tribunal from Mr Davies’ evidence is that he, and it would seem his colleagues, take a measured approach to the imposition of conditions but are willing to give the benefit of the doubt to applicants in the interests of trying to get applications approved, which is understandable 28 knowing that the TPA retains control of the process. That is not, however, a luxury available to the Tribunal, which must be concerned with ensuring certainty, finality and that it not delegate its responsibility.

157. Throughout its submissions, IP raised and returned to the opinion expressed by Crispin J in McKenzie, which we have discussed earlier. A further observation to be made about his Honour’s statement is that he regarded the Tribunal’s power as discretionary, appropriate to meet concerns raised post-approval where otherwise the development applicant may suffer procedural unfairness (at [21]).

26 Transcript of hearing on 24 November 2025, page 72, lines 1 – 35 27 Transcript of hearing on 24 November 2025, page 72, line 37 – page 73, line 24 28 Transcript of hearing on 24 November 2025, page 71, lines 1 – 45 Condition 1

158. The imposition of a condition is predicated on an approval of the development application having been given subject to condition. None of the three versions of the proposed Condition 1 recognised this, or imposed a sensible condition.

159. The first (Annexure A) was worded such that the approval was given by the condition.

160. The second (proposed 24 November 2025, Ex A15) and the third (proposed 25 November, Ex 21) followed a preamble in which “the decision under review is set aside and substituted with a decision to remit the decision to the respondent with a direction that the development application the subject of the decision be approved subject to the following conditions:” No explanation was provided as to the rationale for this, which bears no resemblance to section 68(3)(c) which puts setting aside the decision and remitting the matter (not the decision) as alternatives, nor for remitting the decision/matter to the respondent with a direction to do that which the Tribunal, having the functions of the respondent under section 68(2), could have done itself.

161. The second made mention of an approval but required the development to be built substantially in accordance with the March plans, while the third required plans substantially in accordance with the March plans to remove the encroachments on the ground floor plan to be provided to the satisfaction of the TPA.

162. The difficulty in both cases is that the reference is specifically to the updated drawings attached to the witness statement of Hugh Gordon dated 11 March 2025. There were 19 such drawings. There is no reference in the witness statements of the applicant filed at that time to any other drawings. In fact, Mr Mariette had identified, in his attached report a further 13 drawings which had been provided as part of the 144G amendment to the original application. In his witness statement filed for the final hearing he drew attention to these documents and civil engineering and other documents filed as part of 144G amendment application. However, some revision numbers appearing with the March plans suggested they referred to original application drawings done by the original architect. Overall, the Tribunal was left unsure what comprised the application that was being put forward for approval.

Condition 2 a

163. The first and the second versions required provision to the satisfaction of the DPA of a noise management plan for the development, or the construction of the development. The alternative required the applicant to obtain written approval from the EPA and comply with any additional conditions imposed.

164. An updated management report was annexed to Mr Ross’ witness statement, but it does not reflect the latest changes that we have been told about. We have only Mr Ross’ account of what he had been told by the existing expert, without any of the necessary context in order to understand its import. In the circumstances we would not want to rely on it, particularly given the EPA’s repeated insistence that its approval be obtained prior to development approval being given.

Condition 2 b

165. EvoEnergy gave advice regarding provision of a substation, clearance from overhead wires and excavation that was too close to EvoEnergy assets. Successive “Failed to Comply” notices have been issued since. There has been evidence that IP intends to put the overhead wires underground, and substation has appeared in the latest plans, but nothing has been said about excavation.

166. EvoEnergy’s substation advice was given in March 2023 (T 807-809). There is no evidence of any communication in response – the Tribunal is left without any indication of EvoEnergy’s knowledge of, let alone support for, the substation as depicted in the March (2026) plans. The same goes for undergrounding of overhead wires and excavation. Without an understanding of the likely parameters of changes to the development that might be required the Tribunal cannot be confident that it can impose a valid condition ensuring compliance 29 with mandatory Rule 67 Commercial Zones Development Code.

29 See Griffith Narrabundah Community Association Incorporated v ACT Planning and Land Authority [2023] ACAT 13 at [116]-[117] Condition 3

167. The Crown lease purpose clause is difficult to interpret and, as the several variations of proposed changes demonstrate, susceptible to misunderstanding and confusion. The leasing branch proposed a revised formulation of the lease purpose clause to deal with this, which we think is necessary. If we were minded to approve this condition, we would require it to be altered accordingly.

Condition 4

168. The three versions put forward each, to a greater or lesser degree of specificity, required written approval from TCCS (now known as CED).

169. Information was sought regarding the parking spaces for the valet parking because liaison would be required with Roads ACT if off-site parking spaces were to be utilised. Information clarifying the operation of the valet parking service was required. The Shoobridge report in response is not useful in that respect, being couched in hypothetical terms – “could be” or “might” et cetera. There is no specific identification of space requirements internally, or the number of personnel involved. The report is specific about needing to use public parking spaces at the front of the building, and elsewhere in the street, despite the letter of support from the EPA which was attached to the report stating that the EPA understood that no public parking spaces would be required for the valet service.

Discretionary considerations

170. The power to approve subject to condition is discretionary. It is available to ensure that a development applicant is not unfairly prejudiced by the raising of concerns by others at a late stage. That could not be further from the position of the development applicant in this case – IP is raising the “concerns” before the Tribunal, but could have done so in the Reconsideration Application and, of course, in response to requests for information at many stages earlier. In the absence of an explanation justifying that course of action, we do not think that this case is appropriate for the exercise of that discretion in favour of the applicant. Conclusions and decision

171. The principal argument of IP was that section 613(3) of the P Act’s transitional provisions did not preclude approval of the development application subject to condition on the basis that the March plans did not constitute an amendment to the development application, but that even if they did, the Tribunal had power to impose a condition which would have the effect of approving the development application as amended by the March plans notwithstanding the suspended operation of section 144 of the PD Act.

172. That argument relied on the previous Tribunal decision in Walkington and the Supreme Court decision in McKenzie it cited as authority for that course. We have found that Walkington and McKenzie do not support that contention, and do not allow section 144 to be circumvented. We have accordingly found further that the imposition of the condition is predicated on there being a request for the amendment it entails. Such a request being precluded by section 613(3), the Tribunal lacks the necessary power to amend by condition.

173. As IP has conceded from the outset, its application to the Tribunal cannot succeed in these circumstances.

174. We have nonetheless considered the grounds for refusing the development application set out in the Reconsideration Notice of Decision – inconsistency with the Commercial Zones Development Code, Rules 23 (Noise) and 67 (Utility compliance) which by section 119 of the PD Act renders the development application incapable of being approved, and inconsistency with the advice of TCCS as a referral entity which must be considered under section 120 of the PD Act.

175. We agree that neither of these Rules have been met. As compliance with them is mandatory, the development application is inconsistent with the Code and cannot be approved. We have also considered IP’s failure to provide information required by TCCS as required by section 120 in regard to its concerns as adding weight to our conclusion that the making of the condition should be declined on discretionary grounds in addition to our view that we do not have sufficient knowledge to be confident that we could impose valid conditions.

176. Accordingly, we have reached the decision that the development application ought to be refused. We will therefore order that the decision under review is confirmed.

Application for Disqualification of Tribunal Members for Apprehended Bias

177. At the first directions hearing the Tribunal set a timetable for the provision of evidence and submissions from each party leading up to the hearing leaving adequate time for the respondent to consider and respond to the applicant's material. The applicant, however, provided some material six weeks before the hearing, but did not provide the final architectural drawings and the conditions it sought to have imposed until a week before the hearing. Consequently, the respondent and the Tribunal did not have sufficient time to properly prepare for the hearing.

178. The hearing commenced before Senior Member Arthur and Senior Member Wilson on 17 March 2025. The Tribunal advised the parties that it had concerns about the state of the development application such that it did not think that it was in a position to approve it - the dearth of evidence being such that the Tribunal could not be satisfied that the conditions which the applicant wanted to have imposed would be valid.

179. After hearing from the parties, the Tribunal dismissed the application on 18 March 2025, confirming the reconsideration decision refusing the application.

Submissions

180. In its written submissions dated 3 September 2025, annexed to its interlocutory application, the applicant said (emphasis original): [7] The basis for the Application is that the Tribunal as presently constituted made comments and observations in the course of the first hearing of the matter that would lead a fair-minded lay observer to apprehend that the Tribunal had already determined the matter in a manner contrary to the Applicant's interest. [8] The reasons of the Supreme Court on appeal from the first decision of this Tribunal are replete with references which give the appearance that the Tribunal has already determined the matter against the Applicant, including: (a) The views [of the Tribunal] expressed regarding the Applicant's evidence (at [56]) [[56] The tribunal has looked at all of those witness statements. Given the circumstances, the tribunal is not minded to permit evidence going beyond the scope of what is in those witness statements, which leaves the witness statements in – or the further evidence, in the view of the tribunal, as not being able to assist it to overcome the situation it is confronted with.] (b) Further to [56], the fact that the Tribunal was not minded to permit further evidence to respond to concerns which it had raised for the first time in the hearing (c) The rejection of the Applicant's invitation to hear evidence in the matter followed by comments on the inadequacy of the 30 applicant's evidence (at [113] ). (d) That the Tribunal formed a fixed view about whether it had the documentation necessary to conduct a review, again without hearing evidence or final submissions (at [117]. [9] Further to these observations is comments made by the Tribunal in the original decision about the "attitude" of the Applicant in relation to this development: [This is a situation in which the applicant – it is apparent from looking at the notices of decision and from the various documents relating to assessment in the tribunal documents – has received requests for further information and has not supplied that information. Perhaps the most – not the most egregious, but the most illustrative of the underlying cause of the difficulty – is set out in the notice of decision on reconsideration by the authority pointing to the fact that the Environment Protection Authority had sought a revised noise management plan to be provided for the purposes of assessment of the original decision – but was met with the response that that would be provided post-approval. That is not the only example of that attitude of the applicant. Another is that the need for valet parking (now sought to be approved by way of condition) was identified in a report from the traffic expert in December 2023. A full

30 At [113](c), Muller AJ said: Having disclosed to the parties its preliminary view that it “had not been given the evidence on which it would be able to judge whether those conditions are appropriate ones to impose, such that it’s been left to other entities to have a free rein as to what's decided”, the Tribunal denied the applicant's request to hear all of the evidence before forming a concluded view about its capacity to impose suitable conditions. The Tribunal instead afforded the parties a 3-hour adjournment to prepare submissions in response to the question it had raised. proposal for valet parking could, and should, have been put to the authority on reconsideration, let alone to the tribunal now on review. (Emphasis in original)] [10] These comments were made without the benefit of full evidence or cross-examination, and instead arise from an impression which the Tribunal appears to have formed from the material about the Applicant's conduct. It is clear that a fair minded lay observer might reasonably apprehend that the Tribunal had formed a view about the applicant, its attitude and its evidence that would mean that this matter has been pre-determined to file, prior to ever being heard [11] Further, the applicant notes that the tribunal was originally presented with consent orders from the parties which sought that the matter be heard and determined by a Tribunal differently constituted. Those orders were rejected. From this two conclusions arise: (a) Both the Applicant and the Respondent considered, at the time the consent orders were sought, that it was appropriate for the matter to be heard and determined by a different tribunal, leading to the conclusion that the Respondent considered that there was a possibility of apprehended bias on the part of the Tribunal; and (b) That the Tribunal has already decided the present application against the Applicant, which would again lead to an apprehension of bias.

181. In oral submissions, in answer to a question from the Tribunal – “What more is there in the things said by the Tribunal that would suggest that it was influenced by non-impartiality or bias as opposed to a simple statement of where the facts lead?” – counsel for the applicant said:

(b) The observation by the Tribunal that the disqualification application appears to be a deliberate strategy by my client was made without having that proposition put to any witness on the part of my client either by the respondent or by the Tribunal itself. (c) The fact that the Tribunal made all the observations it did without affording my client the opportunity to respond to any of the concerns which the Tribunal had raised about the adequacy or otherwise of the documentation and formed that view in circumstances where I had invited the Tribunal to hear the evidence and repeatedly the Tribunal had declined to do so. (d) And the observations by the Tribunal about what the likely destiny of a section 22P application might have been in the circumstances of the case, again without affording my client the opportunity to make such an application. 31

182. Counsel then referred to two further extracts from the transcript: SENIOR MEMBER: To be fair to you you need some time to put together those arguments and be in a position to put them to the tribunal. My proposal is to adjourn until 2 o'clock to give both parties the opportunity to take on board what the tribunal has said and prepare some submissions. I just – I have noted the dearth of evidence on which we would be able to judge the utility of these conditions, and I note also that that dearth of evidence – I am not making a finding in relation to this, but just expressing an impression – that it has been a strategy of the applicant for a long time, going back even before the original decision was made, to put the proposition that all these things can be sorted out post approval, and there is there a hint that this is a deliberate strategy in circumstances where the evidence could have been provided and there has been time for it. …. COUNSEL: Well, that's a matter that Mr Gordon can give evidence on, but my understanding is that he prepared those plans based upon the survey and inserted the survey line. SENIOR MEMBER: Well, Mr Gordon might be able to give that evidence, but I don't think it will be very persuasive.

183. Counsel then observed in relation to the last extract: So that, in my mind, could lead to a perception of pre-judgement against the applicant's witness in relation to a relevant aspect of the evidence raised by the tribunal which is why we say again that's another example which would leave a fair-minded lay observer to conclude that the tribunal might not bring …

184. In response to an observation by the Tribunal that a fair-minded lay observer would understand that this would be hearsay evidence and that the tribunal would not have before it the actual document to judge for itself what the position was, Counsel said: With respect, no. First because the fair minded lay observer as you pointed out to me a few minutes ago would not be legally trained. But more potentially in relation to this particular example, the evidence of Mr Gordon could have been bringing along the documents upon which he

31 Transcript of hearing on 7 March 2026, page 8, lines 34 – 45 and page 22, lines 31 – 36 relied including the survey itself…… And saying this is the survey that are relied upon in producing that survey.

185. Counsel for the applicant also submitted: The only other broader issue is the one that was the subject of the successful application for leave to appeal and appeal which was the denial of procedural fairness itself and in circumstances where a lay observer was informed that a superior Supreme Court had held that the tribunal had not afforded my client procedural fairness, they might 32 perceive that it being remitted back to the same tribunal [may] by result in a similar result. Apprehended bias principles 33

186. The High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 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: 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 Second, the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 34

187. In Johnson v Johnson [2000] HCA 48 (Johnson), the High Court observed of the hypothetical lay observer: 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 considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

188. In other cases, the High Court has said that the observer is presumed to have:

32 Transcript shows “by” 33 Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [6] 34 Johnson at [13]-[14] 35 (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 36 identification of real issues and real problems.

189. The High Court has also said: (a) 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 37 one 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 38 of the appearance of bias.

Grounds for apprehension of bias

190. From the applicant’s submissions set out above we take the following to be the matters that need to be addressed: (a) The Tribunal's determination that insufficient evidence on which to impose valid conditions as sought without hearing all the evidence, or at least further evidence, given that the Tribunal's concerns were raised for the first time in the hearing. (b) The “attitude” of the applicant, and its apparently “deliberate strategy” to not respond to concerns raised by referral entities, asserting that such matters can be dealt with post-approval – that is by approval subject to conditions. (c) That the parties were in agreement that the Tribunal as currently constituted should be disqualified.

35 Laws v Australian Broadcasting Tribunal [1990] HCA 31 at [37] per Mason CJ and Brennan J (with whom Gaudron and McHugh JJ agreed) 36 Johnson at [13-[14] 37 Re; JRL ex parte CJL [1986] HCA 39 per Mason J 38 Re; JRL ex parte CJL [1986] HCA 39 per Mason J (d) That the evidence of Mr Gordon was unlikely to be persuasive. (e) That a section 22P application would not be successful. (f) That the Supreme Court on appeal had held that the Tribunal had failed to provide procedural fairness to the applicant.

Inability to impose valid conditions

191. In the extract from the reasons for decision of Muller AJ at [56] set out above, the Tribunal told the parties that it had looked at the witness statements of the applicant, but that given the circumstances the Tribunal was not minded to permit evidence going beyond the scope of what is in those witness statements.

192. The circumstances referred to are as set out above. The applicant would have known from reading the Original Decision reasons that its failure to provide information to the TPA was the principal reason why the application was refused. It had an opportunity with its Reconsideration application to redress that situation, but it did not take it. It also had an opportunity to provide the necessary information to the Tribunal when making its review application, and did so to an extent but well short of what was necessary.

193. It has been the practice of ACAT Tribunals in planning matters to limit oral evidence to the scope of witness statements that have been filed. There is an obvious reason to allow evidence to be given on matters not referred to in a statement where procedural fairness would require it, but that involves considerations of fairness to other parties and the expeditious hearing of the matter. The subject matter of the further evidence needs to be specifically identified for the Tribunal to be able to consider these matters.

194. The issue arose on the first day of a two-day hearing. At that point, it is to be expected that the applicant would have put into its witness statements all the information that was available at the time they were filed. If more information had become available since, it could have been put into a further witness statement or statements, or its existence otherwise made known to the Tribunal. Given that, the applicant’s complaint that the Tribunal formed a fixed view about whether it had the documentation necessary to conduct a review, without hearing evidence or final submissions is somewhat hollow – even if the Tribunal had permitted evidence beyond the scope of the witness statements, it is obvious that there would be none to give and no submission could fill that gap.

195. The hypothetical lay observer is assumed to have been present at the hearing and to have read the reasons given by the Tribunal. He or she would therefore have been aware of the history of the matter in respect of the assessment of the development application including the requests for information made by referral entities and the nature of the applicant's response to them. It can also be assumed that he or she would also have read the reasons of the TPA’s delegates for the Original and Reconsideration decisions so as to understand the significance of the requests and the effect of the applicant’s lack of response. In particular, it would have been apparent to the observer that the lack of information needed by the Tribunal was not something that the applicant became aware of for the first time at the hearing.

The applicant’s “attitude”

196. The ordinary meaning of the word ‘attitude’ is ‘position’, or ‘stance’. It does not have a pejorative connotation, unless qualified by an adjective such as ‘bad’. Similarly, a ‘deliberate strategy’ is simply descriptive of a course of action which has been undertaken intentionally. Again, it has no judgemental connotation unless, perhaps, something in the context implies it.

197. The hypothetical lay observer would have seen from the discussions between Counsel and the Tribunal on the first day of hearing and in the reasons given by the Tribunal that particular examples of the conduct had been identified by the Tribunal as indicating that requested information did not need to be provided but could be dealt with by conditions post-approval of the application. The observer would have seen that themselves on looking at the delegates’ Reasons for their decisions. Parties in agreement as to disqualification

198. Counsel for the respondent informed the Tribunal that the respondent had not consented in the terms asserted, but only to the making of the application by the applicant. It is not necessary to consider this ground any further.

The evidence of Mr Gordon

199. A problem with the architectural drawings by Mr Gordon provided a week prior to the hearing was that they appeared to be unconnected with any survey, a document vital to the understanding and validation of a development application. That Mr Gordon’s oral evidence that he had based his drawings on a survey was dismissed by the Tribunal as unpersuasive, being hearsay, would be understood by the hypothetical lay observer as a term not confined to trained lawyers, and no substitute for the document itself. Counsel for the applicant’s suggestion that the evidence of Mr Gordon “could have been bringing along the document” (if it was not mere speculation) invites a question as to why if it existed it was not already apparent in the evidence, and a consequent inference that it may not exist. The reasons for the Tribunal's concern would not be lost on the observer.

The section 22P of the ACAT Act application

200. The Tribunal explained the reasons why it thought there would be no point in an application for an extension of time in which to hear and determine the application for review.

201. Muller AJ found that the Tribunal had misconceived the operation of section 22P and that its consequent failure to allow time for an application for an extension of time was a constructive failure to exercise jurisdiction.

202. However, the lay observer, taking a reasonable and balanced approach, would recognise that an error on the part of the Tribunal does not in itself suggest bias, particularly where the Tribunal had considered the issue carefully, albeit wrongly. Appeal finding that the Tribunal had failed to provide procedural fairness to the applicant

203. Clearly there were aspects of the Tribunal’s dealing with the matter before it that involved a legal error on its part. But on the question that the Tribunal raised with the parties at the outset of the hearing – the lack of evidence sufficient to enable the Tribunal to be confident of being able to impose valid conditions which would not involve delegation of its function – Muller AJ held: [128] The Tribunal's concern that it was being asked to delegate its responsibilities as a decision-maker as a consequence of the nature of the conditions it was requested to impose was something that was raised at the outset with the parties. It is a matter in respect of which by virtue of that notice, the parties were afforded, and exercised, the opportunity to make submissions. [129] In the circumstances, the process adopted by the tribunal in addressing the issue of delegation did not display a lack of procedural fairness. Nor did the approach on the tribunal display substantive failure to undertake the decision-making task.

204. There is nothing in that, and much to the contrary, that might cause the lay observer to think that the Tribunal might not be able to bring an impartial mind to the consideration of the matter.

The role of the Tribunal

205. In any event, a Tribunal member cannot be regarded as biased or appearing to be so by performing the role of hearing the case before them in order to determine the correct and preferable decision. In this instance as members of a tribunal our review of a decision required us to make findings of fact involving the reliability of evidence and conduct of the parties. Whether we did so correctly is a matter for appeal, not disqualification. A hypothetical lay observer could not have regarded us as having a pre-determined – that is, for reasons prior to entering into the hearing of this matter – mind set against the applicant or its witnesses, but rather as expressing to the parties our thoughts on the effect of the evidence in the case. There is no logical connection between doing that 39 and appearing to be biased, and none was suggested by the applicant.

39 Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 7) [2024] ACTSC 15 per Mossop J at [11]- [21]

206. For these reasons, we declined to disqualify ourselves from hearing this matter.

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

Dates of hearing: 24 and 25 November 2025 Counsel for the Applicant: Mr B Buckland Solicitors for the Applicant: MV Law Counsel for the Respondent: Ms K Musgrove Solicitors for the Respondent: ACT Government Solicitor