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

1. The applicant seeks leave to appeal a decision of the ACT Civil and Administrative Tribunal (the Tribunal) delivered on 18 March 2025. The decision under review by the Tribunal was concerned with an application for development approval to enable the construction of a commercial accommodation building on a site owned by the applicant at Phillip in the ACT.

2. The development approval under consideration was initially refused by the Planning and Land Authority (the planning authority) on 11 June 2024. An application for reconsideration was lodged on 20 September 2024 and, in a decision dated 1 November 2024, the original decision to refuse the development approval was confirmed. The confirmation of the earlier refusal resulted in the commencement of proceedings in the Tribunal.

3. The tribunal proceedings were set down for a three-day hearing scheduled to commence on 17 March 2025. The proceedings commenced with a view of the site. Then, after identifying documents relied upon by both parties, allocating each of them a provisional exhibit number, and hearing submissions, the Tribunal delivered its decision on 18 March 2025, confirming the decision of the delegate on reconsideration in refusing the development application.

4. The orders made by the Tribunal were: 1. Pursuant to s 68(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) the Tribunal confirms the decision of the delegate of the Respondent made on 1 November 2024 on reconsideration of the decision of the delegate of the Respondent made on 11 June 2024 refusing Development Application 202240071. 2. The further hearing of the proceeding on 20 March 2025 is vacated.

5. The applicant now seeks judicial review of the Tribunal’s decision-making process, setting aside of the Tribunal’s orders and remittal of the matter back to the Tribunal for rehearing.

Procedural matters

6. The development application was lodged under the Planning and Development Act 2007 (ACT), now repealed (the repealed Act), which was the precursor to the current development application framework under the Planning Act 2023 (ACT) (the Planning Act). Section 613 of the Planning Act provides that, in respect of a development application lodged prior to its commencement and not finally decided, as in this matter, the repealed Act continues to apply. Section 613(3) of the Planning Act limits the right to amend the development application, under s 144 of the repealed Act, to the period ending six months after the date of commencement of the Planning Act. As the relevant transitional provisions of the Planning Act commenced on 27 November 2023, the time for lodgement of an amendment to the existing development application pursuant to s 144 of the repealed Act expired on 28 May 2024 (27 May 2024 being a public holiday).

7. Section 144 of the repealed Act was in the following terms: 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; and (b) for land under a land sublease— (i) if the applicant is not the sublessee—the sublessee consents, in writing, to the amendment; and (ii) if the applicant is not the Crown lessee—the Crown lessee consents, in writing, to the amendment. (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.

8. Significantly for the purposes of this development application, having missed the opportunity to make amendments to the previous application within the parameters of s 144, the applicant needed to secure approval on the basis of the existing development application.

9. Sections 162 and 165 of the repealed Act are in the following terms: 162 Deciding development applications (1) The planning and land authority or, for a development application that the Minister decides to consider under division 7.3.5 (Ministerial call-in power for development applications), the Minister, must— (a) approve a development application; or (b) approve a development application subject to a condition; or (c) refuse a development application. Note 1 For provisions about conditions, see s 165. Also, a development application to vary a lease granted as a concessional lease by surrender and regrant of the lease as a market value lease is subject to a condition (see s 262). Note 2 Notice of a decision under s (1) must be given under div 7.3.8. Note 3 If a development application has been referred to an entity under s 147A or s 148, the notice of the decision under this section must include information about any comment by the entity and whether the authority followed the entity’s advice (see s 170 (3) (c) and s 172). Note 4 The criteria for a decision on an application to vary a lease granted as a concessional lease are in div 9.4.2. Note 5 An applicant and, in some cases, other people may have a right to apply for review of a decision under s (1) (see ch 13 and sch 1). However, the right to apply for legal review of a decision by the Minister is time-limited (see s 410). (2) However, the planning and land authority or Minister may only decide the application if— (a) for a concurrent development application—the concurrent process is completed; or Note Under s 147AA, a concurrent development application means an application for development approval that is made under s 137AA, or that is accompanied by 1 or more of the following: (a) if the application is made under s 137AA—the draft plan variation that gives effect to the anticipated territory plan variation; (b) if the application is made under s 137AD—the proposed technical amendment; (c) if a draft EIS is lodged with the application—the draft EIS; (d) if an application for an EIS exemption is lodged with the development application—the EIS exemption application. (b) for a development application made under section 137AB (Applications in anticipation of territory plan variation—made after draft plan variation prepared)—the draft plan variation has commenced under section 83 or section 84. (3) Also, the planning and land authority or Minister must refuse the following development applications: (a) a development application to which division 9.4.2 (Varying concessional leases to remove concessional status) applies if the Minister decides under section 261 that considering the application is not in the public interest; (b) a development application for a development involving affected residential premises other than a remediation development. (4) The planning and land authority or Minister must take action under subsection (1) in relation to a development application not later than the end of the prescribed time period for the application. (5) To remove any doubt, the time for deciding a development application is not affected by— (a) the referral of the application to the Minister by the planning and land authority under section 158; or (b) the referral of the application back to the authority by the Minister under section 159. (6) If the planning and land authority approves a development application that relates to a regulated tree, the authority may, under this section— (a) if a tree management plan is already in force for the tree—approve an amendment of, or replacement for, the tree management plan; or (b) in any other case—approve a tree management plan for the tree. (7) In this section: affected building—see the Dangerous Substances Act 2004, section 47I. affected residential premises—see the Dangerous Substances Act 2004, section 47I. completed concurrent process—a concurrent process is completed if a concurrent development application is lodged and— (a) if the application is made under section 137AA (Applications in anticipation of territory plan variation—made before draft plan variation prepared)—the draft plan variation has commenced under section 83 or section 84; or Note For a development application made under s 137AA, the planning and land authority or Minister is taken to have refused the application if a consultation notice for a draft plan variation that gives effect to the anticipated variation is not notified under s 63 within 6 months after the development application is made (see s 137AA (3)). (b) if the application is made under section 137AD (Applications for development encroaching on adjoining territory land if development prohibited)—the plan variation has commenced under section 89; or (c) if the application is lodged with— (i) a draft EIS—the EIS has been completed; or (ii) an EIS exemption application for the development proposal for the application—the EIS exemption has been granted under section 211H. … 165 Conditional approvals (1) This section applies in relation to the conditions subject to which the planning and land authority, or the Minister, may approve a development application under section 162 (1) (b). (2) The approval under section 162 (1) (b)— (a) must include any condition that is required to be included by the territory plan; and (b) if the application is for the subdivision of a units plan under the Unit Titles Act 2001, section 165B (Subdivision of units plan—application)—must include a condition that the units plan is cancelled; and (c) must not include a condition inconsistent with a condition required to be included by the territory plan; and (d) if a conditional environmental significance opinion has been given in relation to the development—must include a condition that the development comply with the condition in the environmental significance opinion; and Note 1 Conditional environmental significance opinion—see s 138AB (4) (b). Note 2 An application to amend a development approval must be refused if the changed development proposal would be in breach of the condition relating to the conditional environmental significance opinion (see s 198 (3) (c)). (e) if the application is for approval of a development on subleased land— (i) may include a condition that the sublessee develops unleased territory land in a stated way; and (ii) must not include a condition inconsistent with the related Crown lease. (3) Following are examples of the conditions subject to which a development approval in relation to land may be given, other than an approval for a code track proposal: (a) that a development, or a stated stage of a development, is to be carried out to the satisfaction of a stated entity; (b) requiring a development to be carried out in stages within the periods stated in or under the approval; (c) stating a period in which a development or any stage of a development is to be carried out; (d) that the approval does not take effect unless a stated approval is revoked, amended or given; (e) that a lease relating to the land be varied and the variation registered under the Land Titles Act 1925; (f) requiring an existing licence to be varied; (g) that another approval relating to the land be surrendered; (h) that stated things be done to prevent or minimise adverse environmental impacts; (i) an offset condition; Note Offset condition, for a development approval—see s 165B. (j) if the approval relates to a use of land, or a building or structure on the land—that the land, or buildings or structures on the land, may only be used for the use in stated circumstances; (k) in relation to an approval to carry out a development for a stated period— (i) that building works or other works carried out in or on a place the subject of the approval are to be removed at the end of the period; or (ii) that the place where the development is to take place is to be restored to a particular state at the end of the period; (l) that a bond be entered into securing performance against the conditions of the approval; (m) if the approval is in relation to a place registered, or nominated for provisional registration, under the Heritage Act 2004—that the applicant enter into a heritage agreement under that Act for the conservation of the heritage significance of the place; (n) that a development be carried out to a stated standard; (o) that stated works, services or facilities that the relevant authority considers reasonable in the circumstances— (i) be provided by the applicant on or to a place the subject of the approval, or on or to another place; or (ii) be paid for completely or partly by the applicant; or (iii) be provided on or to a place the subject of the approval by agreement between the applicant and the Minister responsible for the provision of the works, services or facilities; (p) that plans, drawings, 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; (q) requiring changes to be made to any plan, drawing, specification or other document forming part of the application for approval. (4) A code track proposal must not be approved subject to a condition unless the condition is prescribed by regulation for this subsection. Examples of conditions that may be prescribed 1 requirement to keep documents or other administrative requirement 2 manage the impact of carrying out development, whether on or off development site (5) The planning and land authority may approve an amendment to a plan, drawing or other document approved under subsection (3) (p) if the amendment— (a) if made, would not make the approval inconsistent with section 179 (When development approval takes effect—activity not allowed by lease); and (b) is not inconsistent with an approval under subsection (3) (p).

10. Pursuant to s 165(1) of the repealed Act, the planning authority is empowered to approve a development application under s 162(1)(b); that is, to approve a development application subject to a condition or conditions. The applicant readily accepted, before the Tribunal and in this Court, that if the existing development application was to be approved, it would inevitably require the imposition of conditions.

11. Section 165 contains a list of examples of conditions that may be imposed, expressed in non-exhaustive terms.

12. The central battleground between the parties is whether, and if so at what point, a position is reached whereby the imposition of conditions is such that, in effect, an amendment to the development application is sought. In this case such an amendment would be prevented by the combined operation of s 144 of the repealed Act and s 613(3) of the Planning Act.

Historical matters

13. A brief chronology of relevant events is set out below: 29 September 2022 Applicant lodges development application seeking approval of development at Block 1 Section 42 Phillip, known as 9 Botany Street (development approval dated 11 June 2024). Application is lodged in the “merit” track. 19 September 2023 In response to requests made by the planning authority for further information pursuant to s 141 of the repealed Act, an application is lodged seeking to amend the original application pursuant to s 144. 11 June 2024 The planning authority issues notice of decision refusing development application. Reasons for decision are multifactorial. 20 September 2024 Application for reconsideration is submitted pursuant to s 191 of the repealed Act. 1 November 2024 Notice of decision on reconsideration is made by the planning authority confirming the original decision to refuse the development approval dated 11 June 2024. 29 November 2024 Application for review of the planning authority’s decision is lodged in the ACT Civil and Administrative Tribunal (ACAT). 20 December 2024 ACAT makes various orders for the progression of the Tribunal proceeding including: • Exchange of witness statements; • Exchange of expert evidence; • An indexed and paginated bundle of documents to be relied upon (not including tribunal documents); and • Provision of written submissions. 17 March 2025 Hearing is commenced (3-day estimate) with a view held at the land, followed by oral submissions in the Tribunal. 18 March 2025 The Tribunal delivers decision dismissing the application for review.

Applicant’s written submissions before the Tribunal

14. In its written submissions before the Tribunal, the applicant: (a) Conceded that it could not request, and the Tribunal could not allow, an amendment to the development application under s 144 of the repealed Act. (b) Contended that the Tribunal was empowered by s 162 of the repealed Act to amend the development application by imposition of a condition. In this regard, the applicant relied upon the decision of the Tribunal in Walkington v ACT Planning and Land Authority [2010] ACAT 81 (Walkington). (c) Acknowledged that any conditions imposed could not be such as to “substantially” alter the development, and must be sufficiently certain so as to be capable of being understood and complied with. Within those confines, the applicant submitted that the Tribunal was empowered to amend the development application by imposition of conditions. (d) Recorded the absence of contention that the uses proposed in the development application were permitted uses within the CZ3 zoning that applied to the land. (e) Addressed a series of specific concerns raised by the planning authority in respect of: (i) Zone objectives; (ii) Unsuitability of land; (iii) Parking; (iv) Entity advice; and (v) Crown lease amendments.

15. In response to the written submissions of the respondent, the applicant sought to further develop the argument in respect of the interplay between ss 144 and 165 of the repealed Act. In reliance upon Walkington, the applicant propounded, at [11] of its submissions in reply, that: (a) The power to impose conditions is wide ranging, and includes the site, size, shape, design and other characteristics of the building; (b) The conditions cannot be so great as to destroy the substance of the original application; (c) It would be an error of law for the Tribunal to adopt an overly technical approach such that it determines it lacks jurisdiction to impose conditions; (d) It is plainly open to the Tribunal to approve a [development application] subject to conditions which require amendment to plans for the proposed structure; and (e) The scope of the exercise of the power is a question of degree. (Citations omitted.) Respondent’s written submissions before the Tribunal

16. The respondent’s written submissions before the Tribunal acknowledged that the repealed Act continued to apply to the development application. It noted, however, that the effect of the transitional provisions was to make impermissible any amendment to the development application in reliance on s 144.

17. The respondent’s submissions before the Tribunal may otherwise be summarised as follows: (a) The applicant’s attempt to use conditions on approval to overcome the restrictions on amendment arising pursuant to s 144 and the transitional provisions should not be permitted, because: (i) The conditions would result in significant alteration to the development; and (ii) The imposition of conditions lacked certainty or would offend the principle of finality; (b) The onus in respect of satisfying the relevant requirements rested with the applicant; (c) Substantial differences existed between the material comprising the reconsideration application, and the material relied upon by the applicant before the Tribunal; (d) An example of one such difference involved the use of one part of the site as an electricity substation as opposed to a restaurant, and constituted a substantial change which, properly construed, amounted to an amendment to the application; (e) A number of the planned changes had not been subject to entity consideration; (f) The amendment related to variation of the crown lease, including removing drinking establishment and distillery/brewery classification from the restaurant use, was a change that was caught by the transitional provision time limits; (g) The submissions of the applicant proposed further changes over and above those provided for in the evidence filed with the tribunal. For example, a gross floor area amendment was raised for the first time; and (h) The applicant’s proposal would circumvent the time limitations of the transitional provisions regarding s 144 by seeking to have plan amendments approved by way of implementation of conditions.

18. The respondent went on to address each of the specific concerns raised by the planning authority in respect of design objectives, non-suitability of land, commercial zone development code, entity advice and encroachments.

Hearing before the Tribunal

19. On 17 March 2025, after conducting a view of the site, the Tribunal returned to the hearing room and commenced to receive material. Documents that had been filed previously, including witness statements and expert evidence, were identified and given provisional exhibit numbers. In relation to the provisional identification, Senior Member Arthur stated: When I say provisional, if there are any objections when we get to dealing with a document, I'll hear them then.

20. Noting that the Tribunal may inform itself in any way it considers appropriate in the circumstances, in accordance with s 26 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), the statement above appears to have been intended to inform the parties that the Tribunal would at least entertain objections to the admissibility of the material that had been placed before it.

21. After identifying and confirming the material relied upon by the parties, the following exchange occurred: SENIOR MEMBER ARTHUR: Just a couple of questions and then something that may flow from the answers. Mr Buckland [counsel for the applicant], I think you agree that if any of the amendments to the materials that you’re seeking to have taken into account are, or should have been, or would be section 144 amendments, you concede that you’re not entitled to rely on them; is that the case? MR BUCKLAND: I concede, yes, that section 144 is not available to amend the DA, yes. SENIOR MEMBER ARTHUR: But you say that’s not of concern, because what you seek is for those changes to be, to the extent that they need to be, dealt with by way of conditions of approval? MR BUCKLAND: Yes. And that’s entirely within the tribunal’s power still, notwithstanding the - - - SENIOR MEMBER ARTHUR: I understand your submissions.

22. A discussion then ensued about the nature of the conditions that the applicant sought and the power of the Tribunal to impose other conditions. The discussion continued: SENIOR MEMBER ARTHUR: […] you’ve put some lengthy submissions in relation to the power of the tribunal to impose conditions. MR BUCKLAND: Yes. SENIOR MEMBER ARTHUR: And asserted that these conditions are ones that the tribunal is able to make. Provisionally, that’s not the view of the tribunal. There’s a strong likelihood that they go beyond the power of the tribunal and effectively amount to the tribunal delegating its responsibilities as decision-maker, apart from uncertainty and lack of finality. But, principally, the tribunal is in the position where it’s 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. That’s very difficult for the tribunal to contemplate, and indeed, we would see ourselves as abrogating our responsibilities in those circumstances. What I’ve just been expressing is very well put, with respect, by the tribunal in Griffith Narrabundah – it’s the case that’s been cited by the respondent – particularly at paragraphs 116 and 117, with which this tribunal would utterly agree, and that’s why we have a grave concern that we don’t have the power to do what we’re being asked to do. MR BUCKLAND: Yes. SENIOR MEMBER ARTHUR: I’m raising it with you now, because I don’t think that if the end game isn’t possible, there’s no point in having a match at all. What I’m – I’m happy to take any preliminary questions, just to tease out what the tribunal is thinking to assist you, but I think what I’ve indicated is the guts of it.

23. The Tribunal then adjourned at 11.04 am, until 2.00 PM on the same day, to afford the parties an opportunity to take on board what the Tribunal had said and to prepare some further submissions addressing the issues that it had raised. Before the adjournment the applicant indicated to the Tribunal that regardless of the Tribunal’s view on the preliminary issues, it would be appropriate for the Tribunal to hear the evidence before making a decision on the application.

24. When the hearing resumed at 2.00 PM the Tribunal received further oral submissions from both parties.

25. The applicant submitted that the powers given to the Tribunal under s 165 of the repealed Act, covered the circumstances addressed by the conditions to which the applicant proposed the approval should be made subject. It contended that the imposition of a condition, for example, requiring works in respect of a stage of a development approval to be done to the satisfaction of a stated entity, did not constitute an abdication of the authority of the Tribunal or, in turn, the planning authority. The applicant noted that s 165(3)(a) expressly provided for a condition of that nature to be applied. It submitted that as a consequence, the imposition of a condition requiring completion of a component of works to the satisfaction of a stated entity was not an abdication of power by the Tribunal (or the planning authority) as it was within the contemplation of the relevant section.

26. It also submitted that s 165(3)(d), in providing another example of a condition that may be imposed, envisaged an approval being conditional upon another “stated” approval being given. The applicant contended that the stated approval might necessarily include “an approval which can be given by an entity which is not the Planning Authority”. The applicant relied on the examples in s 165(3)(p) and s 165(3)(q) as further illustration of the scope for an approval to include conditions that might require “changes to be made to any plan, drawing or specification or other documentation forming part of the application for approval.”

27. The applicant sought to rely upon a number of unrelated decisions of the planning authority as evidence of that entity, in other matters, imposing conditions of the kind sought by the applicant to be imposed in this case.

28. An issue was raised by the Tribunal concerning the apparent absence of a survey plan in respect of the amended plans upon which approval was now sought. The following exchange occurred: SENIOR MEMBER ARTHUR: I mean, it’s pretty critical that the building that is being approved is related to a survey, so as to be sure that it is within the boundaries and setbacks, or whatever are observed. MR BUCKLAND: Well, that’s a matter that Mr Gordon [an expert witness for the applicant] can give evidence on, but my understanding is that he prepared those plans based upon the survey and inserted the survey line. SENIOR MEMBER ARTHUR: Well, Mr Gordon might be able to give that evidence, but I don’t think it will be very persuasive. MR BUCKLAND: Well, in my submission, I can’t comment on what would or would not be persuasive, but I can say that it was prepared with the survey in mind. I mean, the - - -

29. Commencing at p 28 [44] of the ACAT hearing transcript, the Tribunal directly addressed the interplay between a condition imposed under s 165 of the repealed Act that may include an amendment to a plan, and an amendment to a plan that should properly be characterised as a s 144 amendment, the latter being unavailable to the applicant in this case.

30. It is instructive to again record the exchange that followed: MR BUCKLAND: In my submission, there is nothing which requires something to be characterised as a 144 amendment. I note that there is a number of pieces of opinion evidence from [Mr] Davies [an expert witness for the respondent], saying that certain things are – ‘This is an amendment, this would be an amendment, I consider this to be an amendment.’ In my submission, that’s irrelevant opinion evidence and I’m going to object to it at the appropriate moment, but the fundamental - - - SENIOR MEMBER ARTHUR: So, I mean, does it follow then that no matter what the size of the amendment that’s sought by way of condition, the tribunal should grant it even though it amounts to a circumvention of what the transitional provisions are trying to achieve? MR BUCKLAND: In my submission, the answer is the tribunal can approve a development subject to condition. There is nothing in the transitional provision which interferes with that power. The fact that the proposal comes from the applicant, as opposed to from the respondent, doesn’t mean that it is an amendment, and the application of the section must be done in accordance with its terms. If the section sought to exclude the power - - - SENIOR MEMBER ARTHUR: That’s very much the letter, not the spirit of the legislation, it would seem. MR BUCKLAND: The purpose of the transitional provisions in the legislation was to continue the operation of the previous scheme, subject to one express proviso. It did not say that the powers of the respondent were limited in a way which precluded them from approving a development subject to condition, or that the powers of the respondent were modified such that the power to approve subject to condition did not include X, Y and Z conditions. It did not put down 165; it did not exclude 165. SENIOR MEMBER ARTHUR: But if the situation is that somebody who’s in the position of being post-27 November 23, but got the benefit of the previous legislation, and subject to the six-month rule, realises after the six months that, we really needed a 144 amendment, but no problem, we’ll just save it for the hearing and we’ll make sure that we appeal and get to the tribunal and there we’ll ask for it as a condition. MR BUCKLAND: Well, that’s only necessary if it’s a refusal, point 1, in the scenario which you’re identifying. Any approval which might have required that, that doesn’t come into play. But, more fundamentally, the realisation that there is an issue with a development happens routinely in this tribunal, including in matters where the applicant for development and the respondent are ad idem in relation to the outcome, and you can have a third party appeal which identifies a particular issue that neither party had tweaked to, which is easily addressed by a condition, and the mere fact that it comes to the attention of the parties as part of this process, and that a party says that it can be fixed in a particular way, does not mean that it is an amendment which contravenes either the terms or the intent of section 613(3). The mere fact that it is an applicant for development that proposes a particular condition to address an issue - - - SENIOR MEMBER ARTHUR: No, I understand what you’re saying.

31. In oral submissions to the Tribunal, the applicant also placed reliance upon the decisions of Griffith Narrabundah Community Association Inc v ACT Planning and Land Authority (Administrative Review) [2023] ACAT 13 (Griffith), particularly at [33]-[38]; Scott v Wollongong City Council [1992] NSWCA 227; 75 LGRA 112 (Scott) at 5-6; and Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch [2000] NSWCA 65; 48 NSWLR 548 at [116].

32. In addition to the submissions summarised above, the applicant raised with the Tribunal the option available to it, of remitting the decision back to the respondent for further consideration in accordance with directions from the Tribunal.

33. The respondent submitted that the examples of conditions imposed by the planning authority in other matters, that were asserted to be of a similar nature to the conditions sought in this case, were of limited utility in circumstances where the context in which those orders were made was unknown. It accepted that conditions may be imposed in appropriate circumstances, but contended that the imposing of conditions required a context where there was certainty in the material before the Tribunal, or before the original decision-maker. Such certainty, the respondent asserted, did not present in this case.

34. On the contrary, the respondent submitted that the history of the matter was replete with attempts by the applicant from the outset to seek to deal with matters by the imposition of conditions, and a refusal by the applicant to address the requirements for approval raised by the various entities responding to the original application.

35. The respondent highlighted the fact that the applicant had been afforded an opportunity to address outstanding matters by way of s 144 amendments and had elected not to do so. It pointed to the risk that conditions may be imposed in this case that were not subsequently met, resulting in a further application in proceeding under the new planning law, and with the object of finality being frustrated.

36. The respondent relied upon the decision of the Tribunal in Walkington from [32], in support of its contention that the substance of the applicant’s approach was to seek to amend in a significant way, by imposition of conditions, a plan that ought properly to have been amended by application under s 144.

37. In relation to the option of remittal to the planning authority, the respondent submitted that the planning authority would have no power to consider the new material that had been filed in the Tribunal as it would in effect be material that could only be considered in the context of a s 144 application, where such an application was no longer open to the applicant.

38. On the topic of the absence of a survey plan, which had been raised by the Tribunal as one issue of concern, the respondent pointed to the uncertainty regarding encroachments that was evident on the most recent version of the submitted plans.

39. Whilst accepting the power of the Tribunal to impose conditions on a development approval, the respondent submitted that in this case, the lack of entity clarity, and the lack of entity approvals for that which was proposed, were such as to make it inappropriate to proceed by way of conditional approval.

Decision of the Tribunal

40. The Tribunal provided oral reasons which were then converted, with some amendment, to written reasons for its decision.

41. The decision of the Tribunal addressed a number of issues:

• Issue 1: The Tribunal’s capacity to determine that the changes (conditions) proposed to make the development compliant with the mandatory rule, did so without significantly altering the development or causing it to become non-compliant in other respects. • Issue 2: The Tribunal's capacity to make a determination on the basis of further revised plans that were not first considered by the planning authority. • Issue 3: The use to be made of the material sought to be relied upon by the parties. • Issue 4: The delegation issue and the decision in Scott. • Issue 5: The timing issue and the requirement for a decision within 120 days.

Issue 1

42. The Tribunal adopted the following observations from the ACAT judgment in Griffith at [116]-[117]: Conditional approval may be given in those circumstances only if the condition operates to make the development comply with the mandatory rule. This may require something to be done in the future – e.g., it may require a specific change to be made to a plan, drawing, specification, or other document to make the proposal comply with the mandatory rule and for the plan, drawing, specification or other document to be submitted for approval before the development, or a stated part of it, starts. The principles of certainty and finality discussed earlier do not require every last detail of the change to be worked out and documented before approval can be given. Nor do they preclude ACTPLA from applying a degree of practical flexibility to the extent of detail it may require at the development approval stage, particularly in complex developments. However, ACTPLA as the original decision-maker, and the Tribunal on review, must be satisfied that the required change operates to make the development comply with the mandatory rule without significantly altering the development, or causing it to become non-compliant in other respects. The Tribunal considers that the statutory prohibition in section 119(a) against giving development approval to a development proposal that does not fully meet a mandatory rule, cannot be circumvented by a condition that requires, in effect, that the development is to comply with the mandatory rule. This simply restates what the code already requires. (Footnotes omitted.)

43. With reference to the last sentence in that passage, the Tribunal in this case observed that the requirement pre-supposed the Tribunal had been placed in a position to make the requisite assessment.

44. The Tribunal then considered the conditions of approval proposed by the applicant. It described the applicant’s first proposed condition, that “[t]he development is approved as set out in the updated drawings annexed to the witness statement of Hugh Gordon dated 11 March 2025”, as “baffling”. The Tribunal considered the proposed condition to represent the very task the Tribunal had been called upon to address, namely whether or not to approve the development application. As a consequence, consideration of whether to approve the development as set out in the updated drawings could not be the subject of a condition.

45. The Tribunal then considered the proposed condition requiring four separate elements to be satisfied before the development application took effect. The elements each related to the satisfaction of requirements raised by four different stated entities: Transport Canberra and City Services; the Environmental Planning Authority; Icon Water; and Evoenergy and Electricity. It is apparent that each of those entities had raised compliance issues in respect of the previously submitted plans but had not, given the timing of the plan’s preparation, considered the revised plans in the form placed before the Tribunal.

46. The applicant proposed that the revised plans be approved with a condition that each of the four stated entities have their previously raised compliance issues satisfied, in the context of the revised plans, before the development application could take effect. The Tribunal noted that there was an inevitable requirement that the revised plans be referred back to each of the stated entities to enable them to give advice to the planning authority. It referred to ss 145, 148 and 149 of the repealed Act, which are reproduced below: 145 Referred development application amended (1) This section applies if— (a) a development application has been amended under section 144; and (b) before it was amended, the application was referred to an entity under— (i) section 127A (Impact track—referral of matter protected by the Commonwealth to Commonwealth); or (ii) section 147A (Development applications involving protected matter to be referred to conservator); or (iii) section 148 (Some development applications to be referred). (2) The planning and land authority must refer the development application to the entity. Note Section 149 sets out what the entity to which the application is referred must do with the application. (3) A referral under subsection (2) must include a brief description of how the application has been amended since the entity last saw it. (4) However, if the planning and land authority is satisfied that the proposed amendment of the application does not affect any part of the application in relation to which the entity to which the application was referred made a comment, the authority need not refer the proposed amendment to the entity. … 148 Some development applications to be referred (1) The planning and land authority must refer a development application prescribed by regulation to an entity prescribed by regulation. (2) However, the planning and land authority must not refer a development application to an entity under subsection (1) if— (a) the authority is satisfied that the applicant has adequately consulted the entity in relation to the application not earlier than 6 months before the day the application is made; and (b) the entity agrees in writing to the proposed development. (3) A written agreement to a proposed development mentioned in subsection (2) (b) is taken to be advice received in accordance with section 149 in relation to an application for development approval for the development. (4) To remove any doubt, if the planning and land authority is not required to refer a development application to an entity under subsection (1)— (a) the authority need not refer the application to the entity before deciding the application; and (b) the decision of the authority is not affected by the authority not referring the application to the entity.

149 Requirement to give advice in relation to development applications (1) This section applies if a development application, including an amended application, is referred to an entity under section 147A or section 148. Note An amended application may be required to be referred to an entity under s 145. (2) The entity must give the planning and land authority the entity’s advice in relation to the development application not later than 15 working days after the day the authority gives the application to the entity or, if a shorter period is prescribed by regulation, not later than the end of the shorter period. Note 1 A written agreement to a development proposal under section 148 (2) (b) is taken to be advice given in accordance with this section in relation to a development application for the proposal (see s 148 (3)). Note 2 For how documents may be given, see the Legislation Act, pt 19.5.

47. Section 145 is concerned with the requirement to refer back to a stated entity, to which a development application was previously referred, an application that has been amended under s 144. However, it was common ground in this matter that amendment pursuant to s 144 was no longer available to the applicant because of the timing issues.

48. Sections 148 and 149 relate to the obligation to refer development applications to stated entities, including amended applications, in the absence of evidence of adequate consultation with the stated entity and written agreement from them to the proposed development. The stated entity, having been referred an application for consideration, is required to give the planning authority advice in respect of it, whether by way of written agreement to the development proposal or otherwise.

49. In this case there was clearly a residual requirement, given the absence of approval from each of the stated entities for the development application in its previous form, for each of those entities to provide comment on, or approval of, the revised plans.

50. Although not stated directly, the Tribunal appears to have considered the absence of the requisite consideration and approval from the stated entities in respect of the revised plans placed before it, to have resulted in a situation where the Tribunal was unable to determine that the revised plans operated “to make the development comply with the mandatory rule without significantly altering the development or causing it to become non-compliant in other respects”.

Issue 2

51. In a related sense the Tribunal expressed concern that it was confronted with a set of plans which it considered to be inadequate on their face. It identified, by way of example, the absence of a survey plan and engineering drawings. The Tribunal anticipated that those deficiencies could not be made good by the Tribunal itself. It considered that an adjournment of the proceedings would likely be required to enable the planning authority to properly assess the revised plans and, in this way, assist the Tribunal to determine what the Tribunal should do in the context of the proceedings.

52. The Tribunal was mindful that a likely outcome would have been the planning authority seeking further information in order to make a proper assessment of the revised plans. The Tribunal highlighted the fact that the problem it had identified was one of the applicant’s own making, given the late provision of the revised documents.

53. The Tribunal concluded: The difficulty outlined is that the tribunal does not have the basic essentials, which is a development application capable of being given a proper shape and being coherently understood. That is the first basis on which the tribunal is not in a position to compose appropriate conditions. Allied to that is the fact that the composition of appropriate conditions is dependent on the tribunal being in the position that is set out in the last sentence of paragraph 116 of the tribunal’s decision in Griffith. The rights of a development applicant are well-established. There is no right for a development applicant to have an approval. There is only a right to a proper process of assessment. In the present case that process has involved an original decision after assessment, a reconsidered decision after further assessment, and it is now in the hands of the tribunal in a different form from the forms that were before the authority on those first two occasions, and is yet to be assessed. Issue 3

54. With reference to the material placed before it, the Tribunal acknowledged that it had been invited to hear oral evidence. Reference was made to the witness statements filed by the applicant, which the Tribunal noted it had “looked at”.

55. It is not apparent from the Tribunal’s reasons whether it had also considered the witness statements filed by the respondent, nor whether and, if so, to what extent it had considered the other documentary evidence placed before it by the parties.

56. In respect of the applicant’s witness statements the Tribunal observed: 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.

57. The Tribunal concluded that the identified witness statements, on their own, were insufficient to overcome the problems it had identified with the state of the application.

Issue 4

58. The reliance placed by the applicant on the NSW Court of Appeal decision in Scott was acknowledged by the Tribunal. Scott concerned an appeal from the decision of a single judge of the Land and Environment Court in respect of the proposed development of an 80-unit motel in the Wollongong region. The appellants in that case were a resident’s group and the respondent was the Wollongong City Council, which had granted the initial development approval. Relevant to this matter was the consideration by the Court of Appeal of whether a proviso to one of the conditions imposed as part of the development approval, rendered the whole of the condition void for want of finality.

59. On the topic of finality, the Court of Appeal considered the principle to be correctly stated by Priestley JA, and by Clarke JA (Meagher JA agreeing) in Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349 (Mison). In Mison, Priestley JA stated, at 737: … if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made. (Emphasis in original.)

60. Clarke JA stated, at 740: Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final. An example of a case in which a purported consent was held not to be final is to be found in Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61. In that case Cripps J (at 85) concluded that a purported consent which left to the city planner the power to determine which of two substantially different floor ratios should be applied to the development was not a valid consent.

61. Returning to the facts of the case before the Court in Scott, and the conditions under consideration, Samuels JA observed (at 6): However, what distinguishes them is that the exercise of the decision making power they each contemplate will certainly not alter the development “in a fundamental respect”, nor will the development be “significantly different” from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (1972) 30 LGRA 333. If I may quote the words of Barwick CJ in a somewhat different context in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437: - “No narrow or pedantic approach is warranted.” Although no question arises about the standing of the appellants which is secured by s123 of the Environmental Planning and Assessment Act, or their right to challenge this development, it is not beyond comment that it is the objectors who seek to assert the lack of finality in condition 27 and not the developer, the second respondent, whose task it is to carry it out.

62. It is noteworthy that it was the objectors in Scott that protested the lack of finality in the conditions, not the developer with the obligation to comply with them.

63. The Tribunal distinguished Scott on the basis that the entity imposing the conditions was the same entity with the obligation of managing compliance with them, and it was thus not a case where the conditions, once imposed, would be the subject of consideration by third-party entities. That observation, as it was applied in this case, appeared to overlook the process envisaged by ss 148 and 149 of the repealed Act, whereby the stated entities are required on referral from the planning authority to consider the development approval, and to respond to the planning authority, either by way of consent to the application as amended, or by way of comment in respect of any non-compliance issues.

Issue 5

64. The timing issue was one which the Tribunal described as weighing heavily on its consideration of whether there was merit in hearing further evidence in the proceeding. The issue arises pursuant to s 22P of the ACAT Act that requires the Tribunal, considering an application for review of a decision under the Planning Act, to decide the application within 120 days after the day the application is made. The Tribunal noted that the 120-day period was due to end in 10 or 12 days from the Tribunal’s decision date. It also noted that the parties were reminded of the time restriction on the decision at the first directions hearing held on 20 December 2024. Although the capacity of the Tribunal, constituted by the President, to extend the 120-day period was acknowledged at the directions hearing in December, it was also indicated to the parties that the prospects of an extension being granted would be limited, “and particularly so where the delay is occasioned by the late provision of material supporting an application.”

65. The Tribunal referred to a number of examples of failures on the part of the applicant to respond to requests for further information on the subject application in a timely manner. It acknowledged the power vested in the President to extend the 120-day period pursuant to s 22P(3) of the ACAT Act, if satisfied that the extension was in the interests of justice.

66. The Tribunal concluded: The interests of justice are of central importance in almost all situations in which parties seek extension of time in both legal and quasi-legal, or administrative, proceedings. They no longer focus on the circumstances of the individual party but extend to consideration of the 1 importance of appropriate use of the Tribunal’s finite resources . It might be said that in the present case consideration ought be extended further, to the finite resources of the planning authority and its legal representatives expended in the initial assessment, reconsideration assessment and review proceedings.

1 “P v Registrar of Firearms (Appeal) ACAT [2018]74 at [63] – [65].” In those circumstances, there would be no prospect of the 120 day period being extended, and accordingly, no prospect of the tribunal being in a position to make the conditions required. It is on that basis that the tribunal confirmed the decision of the delegate on reconsideration refusing the development application.

67. In support of its observations the Tribunal referenced the comments of McCarthy PM in P v Registrar of Firearms [2018] ACAT 74 (P v Registrar of Firearms) at [63]-[65]. That was an appeal from a decision to refuse a firearms licence in circumstances where the Tribunal accepted the person seeking the licence was suffering from mental health issues. The appeal was determined to be lacking in substance. The observations relied upon by the Tribunal were made in P v Registrar of Firearms in the context of observations concerning an “abuse of process”. At [64], McCarthy PM stated: Whilst not submitted in this case, abuse of process can also occur where the resources required to determine a claim and the interests at stake are out of all proportion to a just allocation of the time and finite resources of the court. (Footnote omitted.)

68. The connection sought to be made between the comments of McCarthy PM in the firearms case about an abuse of process, and the conclusion of the Tribunal in this case that there would be no prospect of the 120-day period being extended, is not immediately apparent. This is discussed later at [132]-[134].

The draft Notice of Appeal

69. The draft notice of appeal lodged by the applicant on 15 April 2025 raised three separate grounds of appeal, only two of which were pressed at hearing. The two grounds pressed at hearing were: (a) The Tribunal erred by denying the [applicant] procedural fairness by refusing to hear witness evidence, allow cross-examination or receive final written or oral submissions. (b) The Tribunal erred in constructively failing to exercise its jurisdiction by failing to consider whether the matter could or should be remitted to the respondent for reconsideration in light of the material which had been filed by the applicant. Applicant’s submissions on appeal

70. After citing relevant authority, the applicant’s primary submissions were, in relation to leave: (a) Each of the grounds relied upon involved errors of law; (b) The errors were material to the Tribunal’s decision; and (c) The applicant suffered prejudice as a result.

71. In relation to the substantive appeal, the applicant submitted that: (a) The applicant was, by virtue of s 613 of the Planning Act, unable to seek amendment to the development application pursuant to s 144 by the time the matter was heard by the Tribunal; (b) In addition to amendment pursuant to s 144, a development application may be amended via the imposition of conditions imposed by the decision-maker under s 165. That section expressly provided for the imposition of conditions of the kind proposed by the applicant; (c) The Tribunal received documents provisionally at the commencement of the hearing which were subject to any objections to be raised by the parties; (d) The Tribunal then raised a preliminary view that the conditions proposed by the applicant went beyond the power of the Tribunal, effectively amounting to a delegation of its responsibilities; (e) The applicant had submitted to the Tribunal during the hearing: (i) That the Tribunal was not bound by the conditions the applicant had proposed and could impose its own conditions; (ii) The Tribunal should in any event, first proceed to receive all evidence in the matter; and (iii) As opposed to imposing conditions, it was open to the Tribunal to remit the matter for further consideration by the respondent; (f) That in determining the matter as it did the Tribunal had: (i) Failed to consider whether the application could or should be remitted to the respondent for reconsideration; (ii) Approached the matter as if the written evidence before it was the whole of the evidence; (iii) Raised the preliminary issue of its power to deal with the matter, and then determined the matter to finality on its facts; (iv) Denied the applicant the opportunity to put forward evidence addressing the preliminary concerns that were raised by it; (v) Denied the applicant the opportunity to make an oral application for leave to adduce further oral evidence-in-chief; (vi) Denied the applicant the opportunity to cross-examine the respondent’s witnesses with a view to obtaining evidence or concessions from them; and (vii) Denied the applicant the opportunity to make submissions on the substantive issues.

72. In oral submissions before this Court, the applicant contended that in the determination of the appeal it was not necessary for the Court to determine the ambit of s 144, noting the agreed position of the parties that amendment pursuant to that section was no longer available to the applicant.

73. Rather, the applicant submitted that the issue for this Court was whether the approach of the Tribunal to the request for determination of the subject development application on conditions occurred in a way that involved a denial of procedural fairness to the applicant.

74. Further, the applicant submitted that in reaching the conclusion that it was not in a position to determine the application due to the shortcomings in the documents before it, the Tribunal failed to consider all of the options available to it, including remittal to the respondent or imposition of its own conditions.

75. In answer to the respondent’s submission that there was no obligation to give reasons for electing not to remit, it was the applicant’s contention that there was an absence of evidence to demonstrate that the Tribunal had even turned its mind to the option of remittal.

76. In terms of the respondent’s reliance upon the pre-hearing direction for filing of evidence to be relied upon, the applicant pointed to the absence of any indication from the Tribunal as to what it considered to be of significance, arising from the material that had been filed. The applicant submitted that the function of the hearing and the receipt of further submissions at the hearing, and evidence as required, was to enable matters of significance to be considered and developed.

Respondent’s submissions on appeal

77. The respondent agreed that the position of the applicant at the time of the Tribunal hearing was such that there was no opportunity for amendment of the development application via the s 144 pathway.

78. It accepted that if a denial of procedural fairness was established, it would amount to an error of law, thus creating a right of appeal. The contention of the respondent was that there was no denial of procedural fairness in the circumstances. In response to the particular elements said to give rise to a denial of procedural fairness, the respondent contended that: (a) Orders were made for the filing of evidence to be relied upon, only some of which were complied with by the applicant; (b) There was no right to lead further evidence orally, noting the entitlement of the Tribunal to conduct the proceedings in any way it considered appropriate, pursuant to s 26 of the ACAT Act; (c) The Tribunal appropriately determined that further hearing could not result in the making of the orders that were sought; (d) The Tribunal had taken into evidence and read all of the witness statements relied upon by the applicant, and extensive written submissions had been filed; (e) There was no basis supporting the assertion that if oral evidence had been received the decision would have been more favourable to the applicant; (f) The evidentiary deficiencies were expansive and would not have been resolved by further oral evidence; (g) There was no constructive failure to exercise jurisdiction; (h) There was no requirement for the Tribunal to state its reasoning process regarding possible remittal, having correctly raised its concerns with that approach at the commencement of the hearing; and (i) As the changes sought in the plans were properly characterised as amendments of a kind that were no longer available to the applicant given the transitional provisions in respect of s 144, remittal was in any event redundant.

79. In oral submissions, the respondent raised the lack of precision in the framing of the grounds of appeal, such that there was a risk the grounds extended to matters of fact or mixed questions of fact and law. The respondent placed reliance upon the statement of Refshauge J in City Hill Pty Ltd v ACT Planning and Land Authority [2015] ACTSC 40; 207 LGERA 48 (City Hill) at [62]-[63].

80. In respect of the principles governing a grant of leave, the respondent referred to the decision of Penfold J in O'Donnell v Environment Protection Authority [2012] ACTSC 140 (O’Donnell), cited with approval in Macedonian Orthodox Church Inc v ACT Planning and Land Authority [2015] ACTCA 32; 208 LGERA 434. Reliance was placed in particular on the passage in O’Donnell in which her Honour referred with approval to the observations of the Court of Appeal in Eastman v Commissioner for Social Housing [2011] ACTCA 12 (Eastman v CSH) at [57]-[58]. The respondent sought to highlight that the criteria were intended to provide a filter for appeals from the tribunal, noting that the identification of a question of law is not enough. The applicant must also present an arguable case that, without the error, a more favourable result would have been achieved. The respondent pointed to the word “would” in the phrase, “would have been more favourable to him or her,” as significant in the application of the test.

81. As to the question of whether there had been a denial of procedural fairness the respondent directed attention to the plain terms of the ACAT Act. Accepting that natural justice and procedural fairness are key principles contained in the objects of the Act, the respondent noted that in the form of s 23 of the ACAT Act, the Tribunal is also afforded significant freedom as to the procedures it adopts in seeking to achieve the legislation's objects. There is no prescribed right to, for example, cross-examine a witness who has provided a statement for the purposes of a tribunal hearing.

82. The respondent relied on the Tribunal decision in Chief Psychiatrist and A (Mental Health) [2011] ACAT 21 in support of its contention in respect of the right to lead oral evidence. At [8] in that case, the President observed: Information can be provided in documents or by witnesses giving oral or written evidence. There is no general right for a person to cross-examine witnesses. The Tribunal may draw on its own expertise and experience when evaluating information. Participants should be told when tribunals are relying on the expertise and knowledge of its members. (Footnote omitted.)

83. In the circumstances of this case, the observations at [5]-[6] are perhaps more apposite: Procedural fairness requires that reasonable notice be given of a hearing and of the matters that are in issue. Participants need to have time to adequately prepare for a hearing. Participants also need to have an adequate opportunity to address the matters in issue. The procedures adopted in a hearing are largely determined by the nature of the application before the Tribunal. What is reasonable and adequate may vary according to both the authorising law relevant to the application and the issues raised by the particular application. Some cases require a procedural framework that is similar to frameworks used in adversarial 2 proceedings in courts. Other cases will require much less formality and greater flexibility.

84. The respondent placed reliance upon similar observations by Refshauge J in Omari v Omari [2009] ACTSC 28 (Omari) at [88], in respect of the right to cross-examine witnesses in Tribunal proceedings. His Honour was, in that part of the decision, dealing with whether in the case before him the Tribunal had erred in refusing to allow the cross-examination of a particular witness. Having made the general observations referred to

2 Some professional disciplinary actions, for example. above in respect of the lack of a substantive right to cross-examine, his Honour went on to reach the view that whilst permitting cross-examination as a matter of course is not consistent with authority, there are cases where cross-examination may have a justified forensic purpose, in which event a denial of the right may amount to error. On the facts of the case in Omari, the Tribunal was clearly influenced by the witness statement of the subject witness, enabling the court on appeal to reach the view that the evidence of the witness was sufficiently central to the Tribunal’s determination that error was demonstrated. At [93], his Honour stated: At the end of the day, I am not persuaded that the Tribunal is required to permit cross-examination as a matter of course but in this case, the evidence was so central, and seen by the Tribunal as such, and there was a reasonable basis that showed some, if not apparent inconsistency, at least doubt about the effect of the evidence, that I consider the Tribunal should have permitted cross-examination of [the witness for the respondent in Omari] on this issue, but not necessarily generally. The Tribunal had power to restrict cross-examination and to deny it on other matters where it could not be shown to have a particular, justified forensic purpose.

85. The respondent also directed the Court to the particular orders made by the Tribunal in this case in preparation for the hearing. It submitted that, critically, one of the orders concerned a direction for the filing of a paginated bundle containing all of the documents and other material, other than the T documents, upon which the applicant intended to rely. In short, the respondent submitted that the level of detail prescribed in those directions regarding evidence were such as to reasonably indicate to the applicant that it needed to have everything in its bundle. The respondent submitted the direction was particularly relevant because of the time limitation issue pursuant to s 22P of the ACAT Act that had been expressly brought to the party's attention at the directions hearing in December.

86. The respondent accepted that the material that was before the Tribunal had been received provisionally. However, it was only provisional in the sense that it had been received subject to objections. Given the inability of either party to make objections in respect of the evidence filed, the respondent submitted that the Tribunal had the benefit of the applicant’s case put at its highest.

87. As to the events on the first morning of the hearing that the applicant had described as “unusual”, the respondent submitted that those events had been misinterpreted by the applicant. It submitted that the preliminary issue was not the question of jurisdiction or power, but whether the Tribunal had been provided with material relevant and necessary to enable it to make the decision that it was being asked to make.

88. It was that issue, the respondent submitted, that the parties were asked to address in further submissions that afternoon.

89. In terms of the constructive failure to exercise jurisdiction, the respondent pointed to the various options available to the Tribunal when considering the matter, referring to s 68(3) of the ACAT Act. It was not incumbent upon the Tribunal, having received submissions as to the options available to it, to address in its reasons why it elected not to adopt any one of the various options. The Tribunal was well aware of its option to remit the matter and elected not to do so. It was not obliged to state in its reasons why it had chosen not to do so.

90. The respondent agreed that there were no directions made in this matter by the Tribunal, one way or the other, concerning oral evidence.

Relevant principles

As to leave

91. The decision whether to grant leave is a discretionary one to be made with due regard to the apparent merits of the grounds of appeal. In this case, the substance of the ACAT proceedings must be considered with proper recognition of the internal review process that is built into the legislative scheme: Manny v Nissen [2022] ACTSC 41 at [5].

92. A limited right of appeal arises in respect of a Tribunal decision involving a review of a decision under the Planning Act. Pursuant to s 86(2) of the ACAT Act, the right of appeal is limited to questions of law. Further, the appeal may only be brought with the Supreme Court’s leave: s 86(4) of the ACAT Act. The requirement for leave was explained in Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283 (Pires) at [48], as a mechanism to reduce the number of appeals, and to ensure that only matters of substance, or matters where there has been a miscarriage of justice, are heard. In Pires, Refshauge J cited with approval the statement in Perry v Smith (1901) 27 VLR 66; 7 ALR 171 at 68, that the test for leave should be applied “in a liberal manner, and not begrudgingly”.

93. The legal error relied upon must be material to the decision in the sense that, but for the error, the decision would or might have been different. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), Mason CJ stated, at 353: A decision does not “involve” an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.

94. A wrong finding of fact, even one that is against the weight of the evidence, does not amount to an error of law: Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; Balven v Thurston [2013] NSWSC 210 at [28]-[29]

95. In relation to leave in the context of a statutorily-limited right of appeal, the Court of Appeal in Eastman v CSH at [57], expressed agreement with the observations of Lander J in the court below, in Eastman v Commissioner for Social Housing [2010] ACTSC 71: Here, taking up the Master’s inaccurate paraphrase of the principles in Niemann, the primary judge [Lander J] said that whether a decision of the tribunal were attended by doubt or the applicant would suffer an injustice if the decision were allowed to stand were not relevant considerations on an application for leave to appeal under s 125 of the Residential Tenancies Act. His Honour stated (at [67]): The statutory criterion for an application under s 125 which must be made out is whether the applicant can identify a question of law. To obtain leave the applicant also needs to show at least an arguable case that the Tribunal erred in its consideration of that question of law. Finally, an applicant needs to show that if the question of law were determined in the manner contended for by the applicant the decision of the Tribunal might have been different in the sense that it might have been more favourable to the applicant: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 353 and Toohey and Gaudron JJ at 384 in dealing with an error of law.

96. In Glass v ACTPLA [2019] ACTSC 201, after noting with approval the passage above, Penfold J observed at [8]-[11]: First, the statutory requirement to identify a question of law must be satisfied. As well, the applicant should: (a) demonstrate an arguable case that the tribunal erred in resolving that question; and (b) explain how the correct resolution of that question would be more favourable to him or her. Also relevant to the exercise of the discretion are: (a) whether the applicant would suffer prejudice if leave is refused; and (b) whether the decision challenged (or perhaps the question of law to be decided) is a matter of public importance. Finally, a court may be more reluctant to grant leave if the decision to be challenged is a discretionary one. Formulation of grounds of appeal

97. Having acknowledged the importance, in appropriate applications for appellate review, of identifying the questions of law to be determined, Refshauge J observed in City Hill at [61]-[63]: … it does not seem to me that the administration of justice is enhanced by requiring an appellant for leave to appeal to be denied his, her or its otherwise right to have the application for leave heard and determined merely because what is or can plainly be seen to be a question (of fact or law) is not in interrogative form. This may more readily be accepted where the appellant is a litigant in person. On the other hand, lawyers should not shield behind such an approach to justify sloppy legal drafting where a question can appropriately be formulated and where this has not been done. Indeed, as I have referred to above (at [27]), it may sometimes not be patent precisely what the question is, or the formulation may be ambiguous as to the question to be considered and this may have a direct bearing on whether leave should be given, because the question may not disclose a question of fact or law (as the case may be) either at all or under one or more of the possible interpretations. The Court can then refuse leave or strike out the offending question. While the court should not so intervene that it undertakes the role of drafter for the appellant, the court should not grant leave unless and until the question, or questions, have been clearly identified and, perhaps during argument and with some direction or appropriate assistance from the court, clearly articulated. Procedural fairness

98. The following relevant principles emerge from a review of the authorities: (a) A failure to afford procedural fairness is an error of law: Annetts v McCann (1990) 170 CLR 596 per Brennan J at 604-605; Minister for Immigration v Bhardwaj [2002] HCA 11; 209 CLR 597 at [43]; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; 13 FCR 28 at [6]-[8]. (b) A person affected by a decision must be informed of the case against them and given a reasonable opportunity to respond to it: Twist v Randwick Municipal Council (1976) 136 CLR 106 per Barwick CJ at 109-110; (c) A particular example of a lack of procedural fairness will arise where a statement of intention has been made and, in reliance upon it, a person has refrained from putting information before a decision-maker: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 per Gleeson CJ at [37]. (d) The existence of the duty to afford procedural fairness, and the particular content to be given to it, will ultimately depend upon the facts and circumstances of the case including the statutory framework applying to the decision: Webb v Department of Correctional Services [2023] SASCA 110 at [40]. (e) What constitutes adequate notice and when it should be provided is determined by reference to the circumstances of the case in question but is directed towards enabling the affected person a fair opportunity to respond: Traill v McRae [2002] FCAFC 235; 122 FCR 349 at [134]. (f) A decision-maker is not bound to hear a person affected by the decision orally, but they must adopt a fair procedure having regard to the matters they are bound to take into account, and those that they propose to take into account: Kioa v West (1985) 159 CLR 550 per Brennan J at 627-628. (g) By its definition procedural fairness is concerned with procedures rather than outcomes. It must therefore be directed to the processes by which a decision is reached: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [16]. (h) Procedural fairness is grounded in natural justice. If it is to be displaced by statute, that must occur in unmistakable terms: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 per Edelman J at [88].

Failure to exercise jurisdiction

99. A constructive failure to exercise jurisdiction arises where a decision-maker, in substance fails to undertake the decision-making task by failing to address some essential matter, having purported to do so: Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209;109 NSWLR 604 at [12]. An inferior court that misconceived the nature of its function or the extent of its powers in the circumstances of a particular case will exceed its authority and fall into jurisdictional error: Craig v The State of South Australia (1995) 184 CLR 163 at [12].

100. In Day v SAS Trustee Corporation [2021] NSWCA 71, Meagher JA stated (at [37]): … a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his “three key issues” were not stated and determined discretely. What he must show is that they raised “substantial” (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim …

101. A failure to perform the task which the relevant Act and/or Regulations requires amounts to a constructive failure to exercise jurisdiction: Wade v Burns (1966) 115 CLR 537 at 562, 568-569; Re Coldham; ex parte Brideson (1989) 166 CLR 338 at [22].

102. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, per Gummow and Callinan JJ, a failure to make a finding on “a substantial. clearly articulated argument relying upon established facts” was considered to amount to a constructive failure to exercise jurisdiction.

103. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1, the Federal Court (at [63]) stated: a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – [Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593] (at 641 [47]). But as the Full Court said in WAEE (at [45]): ‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’ (Italicisation of quotation in original.) Obligation to give reasons

104. In Public Service Board of NSW v Osmond (1986) 159 CLR 656 (Osmond) at 662-663, Gibbs CJ observed: There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. That this is so has been recognized in the House of Lords (Sharp v. Wakefield; Padfield v. Minister of Agriculture, Fisheries and Food) and the Privy Council (Minister of National Revenue v. Wrights' Canadian Ropes Ltd.); in those cases, the proposition that the common law does not require reasons to be given for administrative decisions seems to have been regarded as so clear as hardly to warrant discussion. (Footnotes omitted.)

105. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212, the High Court (citing Osmond at 663-664) reiterated there was no common law requirement to give reasons. However, the High Court pointed out (at [125]) that, “in some circumstances, the omission of a decision-maker to give reasons will have collateral consequences”. That is, the fact that a decision-maker gave no reasons may still allow the court to infer the decision-maker had no good reason at all: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [72].

106. In Sherlock v Lloyd [2010] VSCA 122; 27 VR 434 at [16], the Victorian Court of Appeal said of Osmond: Osmond held, as we have already noted, that there is ‘no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions.’ The judgments in Osmond and the cases which have followed it have, however, acknowledged that this principle will yield to a statutory intention that reasons be given. This intention might be indicated – for example – where the statute empowered the tribunal to exercise a power in the nature of a judicial function; or to do so subject to a right of appeal which could not be exercised without some indication of the reasoning process which led to the tribunal’s decision; or, perhaps, in what Gibbs CJ in Osmond identified as ‘special circumstances’ in which procedural fairness required that reasons be given. It could not be said, however, consistently with the Osmond principle, that the mere fact that the decision was final and determined rights of the parties was of itself sufficient to attract an obligation to give reasons. (Footnotes omitted.) Interplay between ss 144 and 165

107. In McKenzie v ACT Planning and Land Authority [2004] ACTSC 80; 135 LGERA 16 (McKenzie), Crispin J had cause to consider a matter in which the Tribunal had ruled against a development proposal on the basis that the proposal as amended would first require assessment by the planning authority. The Tribunal in McKenzie noted that its function was to review the decision of others and not to itself act as an original decision-maker: summarised at [14]. Crispin J observed at [18]: In my opinion, it is 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 I can 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. It 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. However, in the present case, there does not appear to have been any real consideration of the crucial question as to whether the amended plan involved such a substantial departure from those originally submitted as to properly be regarded as a different application rather than a revision of some aspects of the original application which could properly be considered by the Tribunal.

108. In the course of submissions in McKenzie, his Honour was referred to the decision of the NSW Court of Appeal in Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; 33 LGRA 196. In considering the interplay between similar provisions under the NSW planning legislation, the NSW Court of Appeal in that case concluded that the distinction between a deferral of approval pending the revision of some aspects of the plans, and a rejection arising from a requirement for completely revised plans, was a distinction that involved a question of degree, and that it may be difficult to distinguish between the two in borderline cases. Grounds of appeal – questions of law

109. The grounds of appeal as reformulated by counsel for the applicant in the course of oral submissions were: (a) Did the Tribunal err by denying the applicant procedural fairness in refusing to hear witness evidence, allow cross-examination, or receive final written or oral submissions? (b) Did the Tribunal err in constructively failing to exercise its jurisdiction by failing to consider whether the matter could or should be remitted to the respondent for reconsideration in light of the material which had been filed by the respondent?

110. I adopt the approach of Refshauge J in City Hill in respect of the need to formulate the questions of law in interrogative form. Although the applicant in this case is not a litigant in person, the short grounds of appeal relied upon are readily transferred to interrogative form.

Consideration

111. Returning to the five issues identified in the decision of the Tribunal, it is appropriate to consider each of the questions of law raised by the applicant in the context of the Tribunal’s determination of those issues.

Issue 1: The Tribunal’s capacity to determine that the changes (conditions) proposed to make the development compliant with the mandatory rule, did so without significantly altering the development or causing it to become non-compliant in other respects

112. The complaint of the applicant in respect of this issue is twofold. The first that the Tribunal reached the view it did concerning its capacity to make a decision without hearing oral evidence, particularly evidence from the experts engaged by each of the parties. Secondly that the parties were denied an opportunity to make submissions in respect of substantive issues before the tribunal.

113. Reflecting on the process adopted by the Tribunal in reaching the view that it was not in a position to determine the question before it, there are some matters of concern in terms of the procedural fairness of the process that was adopted. Those are: (a) In receiving the evidence that had been filed provisionally, and subject to later objection, prior to seeking submissions from the parties on the preliminary issue that it had identified, the Tribunal created the impression that there would be a return to the consideration of the substance of that material at a later time. (b) In then taking that material into account in its consideration of the question of capacity, without identifying the substance of the material relied upon, the Tribunal denied the parties the opportunity to challenge material upon which reliance may have been placed. Of particular concern is the passage appearing at p 5 [21] of the Tribunal’s reasons for decision: The tribunal was invited to postpone its decision then provisionally indicated, and to hear evidence in the matter. The tribunal has seen the witness statements of the applicant’s witnesses… 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. (c) 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.

114. With due regard to the nature of the case and the complex planning issues under consideration, particularly in circumstances where the gateway to plan amendment pursuant to s 144 was closed for the purposes of this application, it seems to me that the procedure adopted by the Tribunal amounted to a failure to afford procedural fairness to the applicant.

115. The Tribunal acknowledged that in reaching its decision, it had regard to the witness statements of the applicant that had been provisionally received. Having been taken to them in submissions, it presumably also had regard to the witness statements relied upon by the respondent. It is reasonable to conclude that the evidence was material to the decision the Tribunal reached. In circumstances where it failed to disclose the nature of the reliance placed on that evidence in reaching its decision, it follows that, without that reliance, the decision of the Tribunal might have been different: see Bond per Mason CJ at 353.

Issue 2: The Tribunal's capacity to make a determination on the basis of further revised plans that were not first considered by the planning authority

116. The Tribunal identified two components to this issue: (a) That the Tribunal did not have the basic essential requirement for determination, being a development application capable of being given proper shape and coherently understood; and (b) That the Tribunal here was in the same position as the Tribunal in Griffith at [116], namely that it could not be satisfied that the proposed conditions made “the development comply with the mandatory rule without significantly altering the development, or causing it to become non-compliant in other respects.”

117. The fundamental difficulty with the Tribunal’s approach to this issue is the opaque nature of the procedure that it adopted in reaching its view. It is not possible to discern what material, in particular, was relied upon to reach the conclusion that the development approval was incapable of being given proper shape and coherently understood. It is impossible to know whether some of that material would have been subject to objection, or whether and, if so, to what extent the Tribunal may in these circumstances have been further assisted by oral evidence to expound the import of the written material that had been filed.

118. In those circumstances the applicant was denied a reasonable opportunity to respond to the preliminary view that the Tribunal had reached.

Issue 3: The use to be made of the material sought to be relied upon by the parties

119. The Tribunal reached the view that the witness statements before it were, without more, insufficient to overcome the problems it had identified with the state of the application.

120. For all of the reasons identified above, in the absence of some clear indication from the Tribunal as to the particular shortcomings of the witness statements, the applicant was not afforded an opportunity to address those concerns in submissions, or to endeavour to convince the Tribunal of the merit in hearing oral evidence from the witnesses or in permitting cross-examination of them. The process that was adopted did not afford procedural fairness to the applicant.

Issue 4: The delegation issue and the decision in Scott

121. The reliance of the applicant on the NSW Court of Appeal decision in Scott was in circumstances where it had been cited by the Tribunal in Griffith.

122. At [33]-[38] of Griffith, the principle of finality in the context of a development proposal was considered. The Tribunal in Griffith stated that conditional approval must not be given unless the imposition of conditions would not significantly alter the subject development, and would not create a lack of certainty or offend against the principle of finality.

123. In Scott, the NSW Court of Appeal noted that the principle of finality was: … intended to protect both the developer and those in the neighbourhood who may be affected by the proposal, against the consent authority’s reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted.

124. The outcome in Scott was that approval for a development was given subject to conditions that included the securing of later or final approvals in respect of some aspects of the development. The applicant sought to rely on Scott in seeking to persuade the Tribunal that finality may be achieved, even where there are conditions imposed in the nature of later or final approvals.

125. In its decision in the present case, at pp 5-6, the Tribunal stated: The tribunal’s attention was drawn to the authority of the New South Wales Court of Appeal, a decision in Scott v Wollongong City Council [1992] NSWCA 227 in relation to the matters of certainty and finality, which, I should have indicated at the outset, are the basis of the concerns that the tribunal has, allied with the necessity that the tribunal make a decision, or impose a condition, which doesn’t have the effect of delegating its – that is, the tribunal’s – decision-making responsibility to another entity. In and around that, the tribunal was taken to the authority just mentioned and also to the notice of decision, the two referred to earlier, which is Exhibit A8, and the other two, which is Exhibit A9. On looking at those decisions, firstly, going to the authority of Scott, it’s to be noted that the council was the consent authority. It was the council that imposed the condition, and the condition required the further determination not of another entity, but of the council itself. That is a situation in which there is no delegation. There may be a lack of finality, but in the view of the Court of Appeal, in those circumstances, that was not the case. But the critical thing is that it was a further determination of the consent authority itself.

126. In the context of certainty and finality, the Tribunal was here clearly expressing concern that those principles would be frustrated by it making a decision or imposing a condition that had the effect of delegating its decision-making responsibility to another entity, that being the four stated entities. The Tribunal sought to distinguish Scott on the basis that the decision-maker, being the local council, was also the entity from which the later authorisations would be provided. As such, no issue of delegation leading to uncertainty or lack of finality arose.

127. The question for consideration on this appeal is not whether the Tribunal’s view concerning delegated decision-making in the context of development approval was correct. The issue is whether the procedures it adopted in reaching the conclusion that there was a delegation issue were wanting either in respect of procedural fairness, or in terms of a failure to exercise jurisdiction.

128. A review of the transcript of the hearing before the Tribunal reveals that 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 of the Tribunal display a substantive failure to undertake the decision-making task.

Issue 5: The timing issue and the requirement for a decision within 120 days

130. As I have noted above, this was an issue which the Tribunal described as weighing heavily on its consideration of whether there was merit in hearing further evidence in the proceeding.

131. The Tribunal was clearly mindful that the 120-day period within which it was required to make a decision on the development application pursuant to s 22P of the ACAT Act was, at the time of the tribunal hearing, about to expire. Senior Member Arthur referred to an available period for a determination on the development application, after the decision date, of some 10 to 12 days. Notwithstanding its recognition of the power residing in the ACAT President pursuant to s 22P(3) of the ACAT Act, to extend the 120-day period in appropriate cases, the Tribunal determined that in the circumstances of this case “there would be no prospect of the 120 day period being extended”.

132. In reaching its view that there was no prospect of a time extension, the Tribunal apparently placed some reliance on the decision of McCarthy PM in P v Registrar of Firearms at [63]-[65]. The basis upon which the cited passage could have led to such a high level of confidence as to the likely outcome of an extension application in the subject case is unclear. The Presidential Member in P v Registrar of Firearms had cause to consider an appeal (and request for removal of the appeal to the Supreme Court) from a decision of the Tribunal in the nature of a refusal to issue a licence under the Firearms Act 1996 (ACT). In declining the application, the Presidential Member reached the view that the application was lacking in substance whichever way it was viewed, primarily on the basis of the clear evidence of the applicant’s mental illness that was underpinning the Tribunal’s decision.

133. It is evident that in P v Registrar of Firearms, the Presidential Member turned his mind to the circumstances in which an abuse of process may occur, and noted that an abuse may arise in circumstances “where the resources required to determine a claim and the interests at stake are out of all proportion to a just allocation of the time and finite resources of the court.”

134. There is however nothing arising from that decision, or the authorities cited within it, that ought reasonably to have led the Tribunal in this matter to the view that there was no prospect of a successful application for extension in this case.

135. The Tribunal’s conclusion in this case that there was, as a consequence of the time limitation, an inevitability as to the outcome of the proceedings before it was, in my view, misconceived. In confirming the decision of the delegate on reconsideration to refuse the development application, on the basis of the lack of any prospect of an extension to the time period for determination of the application, the Tribunal, in effect, failed to determine the claim by reason of its misunderstanding of s 22P(3) of the ACAT Act. In that regard there was a constructive failure to exercise jurisdiction.

Leave to appeal

136. As to the application for leave to appeal, the applicant: (a) Has identified a question of law and demonstrated that the Tribunal erred in resolving the question; (b) Demonstrated that the correct resolution of the question may have resulted in a more favourable outcome for the applicant; and (c) Established that prejudice will be suffered if leave is refused.

137. In relation to costs, it is clear from a review of the chronology of events leading up to the tribunal hearing that the applicant bore significant responsibility for the late provision of material that presented difficulty for the Tribunal. It seems to me appropriate, notwithstanding the applicant’s success before this Court, that the costs outcome in this matter should follow the ultimate success or failure of the application in the Tribunal. I shall therefore reserve the question of costs.

Orders

138. For the reasons stated above I make the following orders: (1) The application for leave to appeal is granted. (2) The proposed notice of appeal lodged on 15 April 2025 is taken to be the appellant’s notice of appeal, as amended to incorporate the grounds of appeal as follows: (a) Did the Tribunal err by denying the applicant procedural fairness in refusing to hear witness evidence, allow cross-examination, or receive final written or oral submissions? (b) Did the Tribunal err in constructively failing to exercise its jurisdiction by failing to consider whether the matter could or should be remitted to the respondent for reconsideration in light of the material which had been filed by the respondent? (3) The appeal is allowed. (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 the Tribunal according to law with the hearing of such further evidence as the parties may wish to lead. (6) Costs are reserved.

I certify that the preceding one hundred and thirty-eight [138] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: