List of legislation : ACT Civil and Administrative Tribunal Act 2008 (ACT), s.7, 9, 10(2) and 53

Australian Capital Territory (Planning and Land Management) Act 1988 (CTH), s.11

Kingston Foreshore Development Authority Act 1999 (ACT) (Repealed), s.4, 6

Legislation Act 2001 (ACT), ss.40, 115

Planning and Development Act 2007 (ACT), ss.7, 8, 104, 119, 112, 113, 119, 120,162, 193, 227, 407 and 446A

Planning and Development Bill (2006) (ACT), explanatory statement

Land (Planning and Environment) Act 1991 (ACT) (Repealed)

List of Regulations: Territory Plan 2002, Part A3

Territory Plan 2008 Rule 3A and Criterion 3A of the CZ5 Mixed Use Zone Development Code - CZ5 Mixed Use Zone Development Table; Part 14;4 Kingston Foreshore Structure Plan

Planning and Development Regulation 2008, Schedule 1

List of cases: Re Robert Mckie and Minister for Immigration, Local Government and Ethnic Affairs [1988] AATA 59

Canberra Cruises and Tours Pty Ltd and Minister for Urban Services [1999] ACTAAT 14

Canberra Tradesman's Union Club & Anor v Commissioner for Land and Planning and Ors [1998] ACTSC 244

[2004] ACTAAT 7

Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1

Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 264 ALR 15

Gibb v The Commissioner of Taxation of the Commonwealth of Australia (1966) [1966] HCA 74; 118 CLR 628

Cherry and Rounds/Old Narrabundah Community Council and ACT Planning and Land Authority [2004] ACTAAT 36

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476

P_r_eiss & Ors and ACT Planning and Land Authority

[2008] ACTAAT 25

Riverwood International Australia Pty Ltd v McCormick

[2000] FCA 889; (2000) 177 ALR 193

Westfield Limited v Perpetual Trustee Company Limited

[2007] HCA 45

List of texts: Pearce and Geddes, Statutory Interpretation in Australia

Meagher, Gummow and Lehane, _Equity: Doctrines and Remedies (_4th ed)

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 59 of 2010

Messrs Nicholas Lourandos and Nikolas Yiannakopoulos ("the applicants") have sought review of a reconsidered decision of the ACT Planning and Land Authority ("the respondent") to refuse Development Application ("DA") 200915919.

The applicants are joint lessees of Blocks 1 and 2, Section 58, Kingston ("the subject land") which are adjoining blocks in the part of the Kingston Foreshore Area Precinct "e", known when released for purchase in 2007 as "First Edition". Their application sought the consolidation of the two blocks and the issuing of a new lease with a purpose clause that added "multi unit housing" to the purposes allowable under the existing leases. It also sought to change one of the allowable purposes from "cultural facility LIMITED to an art gallery" to "Shop LIMITED to the display and sale of art and craft or sculpture dealer" and to set the maximum gross floor area for "shop" at 400 m2 and for office at 400 m2, compared with a total of 600 m2 in the two current leases.

The original application was lodged on 10 November 2009 by Ms Deb Barnes, Associate Director of CRB Richard Ellis (V) Pty Ltd on behalf of the applicants and refused by the respondent on 18 January 2010. Ms Barnes lodged an application for reconsideration received on 3 May 2010 and again refused by the respondent on 24 June 2010.

On 20 July 2010, the applicants sought review of both the original decision and the reconsideration decision under s 9 of the ACT Civil & Administrative Tribunal Act 2008 (ACT) ("the ACAT Act"), both decisions being reviewable decisions under section 407 and Schedule 1, Items 3 and 13, Column 2 of the Planning & Development Act 2007 (ACT) ("the Planning Act"). However, Counsel for the respondent pointed out that review of the original decision was not lodged within the 28 day statutory time limit imposed by section 10(2) of the ACAT Act. While the reconsideration decision confirmed the original decision, different reasons for decision were given and it is that decision and those reasons to which the Tribunal must turn its mind.

The matter was heard on 19, 20 and 21 October 2010. The applicants were represented by Mr C Erskine of Counsel while the respondent was represented by Mr R Clynes of Counsel. The parties joined were unrepresented by Counsel, but Mr E Streatfeild acted as their representative in examining and cross examining witnesses. Further witness statements to address matters of importance were produced by both the respondent and the applicants and the hearing resumed on 3 and 16 November 2010. Written submissions were subsequently provided by the parties in January and February 2011.

At the initial hearings, evidence for the applicants was given by Mr Anthony Adams, a Senior Town Planner employed by CRB Richard Ellis Pty Ltd. Evidence for the respondent was given by Ms Maggie Chapman, Manager, Leasing Section, Development Services Branch of the respondent, who had been involved in the assessment of the DA but had not been the decision maker; and Mr Jason Hunter, a Project Planner with the Land Development Agency ("the LDA"). Evidence for the parties joined was given by Mr Paul Harris, one of the parties joined who is the owner of 80 Printers Way Kingston; Mr Howard Dickinson also one of the parties joined who with his wife Mrs Sonia Dickinson is the owner of 4 Waygoose Street, Kingston; and by Mr Edward Streatfeild, a qualified town planner with extensive experience as a senior officer of the respondent up to 2008 and now a consultant town planner with Resolution Planning, who had been retained as an expert witness by the parties joined. Witness statements from Mr Jerry and Mrs Dianne van Meegen, and from Mr Nick Lukin and Ms Olga Lysenko, all parties joined were admitted into evidence.

At the resumed hearing on 16 November, 2010 further evidence for the respondent was given by Ms Julia Forner, a sales project manager employed by the LDA, Ms Danielle Mildren, a solicitor who had participated in the auction of the subject land, and Ms Rhian Williams, also a solicitor who had participated in the auction of the land. In addition, a witness statement from

Mr Ronald Brooker, the Deed Manager responsible for the Deed Management Unit in the Leasing Section of the respondent, was tendered in evidence by the respondent. Evidence was also given by Mr Nicholas Lourandos and Mr Nikolas Yiannakopoulos, the applicants in this matter.

On the first morning of the hearing the solicitor for the applicants, Mr Jason Oliver of Meyer Vandenberg, applied for an Order to stay the proceedings pending a decision by the Federal Court of Australia on an application which they had commenced the previous day in which they sought to have declarations made by that Court that certain documents upon which the respondent had relied did not apply to the subject land and that certain sections of the Territory Plan 2008 ("the Territory Plan") and processes used to amend the Territory Plan were invalid, as they were inconsistent with the Australian Capital Territory (Planning and Land Management) Act 1988 (CTH) and the Australian Capital Territory (Self-Government) Act 1988 (CTH).

Mr Erskine submitted that as the main basis of the respondent's decision to refuse the DA was the applicability of the lease and development conditions and the associated design guidelines ("L&Ds") [1] to the subject land, and the applicant's contention was that they were not applicable, and further that as Rule 3A and Criterion 3A of the CZ5 Mixed Use Zone Development Code which purported to give precedence to pre-existing approved lease and development conditions over other provisions of the Territory Plan were invalid, it would be preferable for the Tribunal to stay its proceedings until the Federal Court had ruled on the matter. To do otherwise, he submitted, would be wasteful of time, as the Tribunal was not empowered to decide on these matters (citing as authority Re Robert Mckie and Minister for Immigration, Local Government and Ethnic Affairs [1988] AATA 59) and if the Court ruled in favour of their application then the Tribunal's consideration of the matter might be based on unsound law. Mr Erskine said that Mr Oliver had lodged the application in the Fast Track which would expedite the Court hearing the matter. He anticipated that it would be completed no later than mid 2011.

Mr Clynes submitted that the proceedings should not be stayed. He drew attention to section 446A of the Planning Act which specifically required the respondent to consider lease and development conditions made under the former Land (Planning and Environment) Act 1991 (ACT) before the commencement date of the Planning Act (31 March 2008) in deciding a development application, if the Territory Plan provided that the condition may vary the plan and the condition is relevant to assessing the application and granting the approval. In his submission, Rule 3A of the CZ5 Code of the Territory Plan did precisely that. He further contended that the L&Ds were not the only basis for refusing the Development Application (DA). There were also the views of entities to which the DA had been referred, the suitability of the land for the proposed development, and the planning policies and principles on which, he submitted, the DA could have been refused. He drew attention to the former Administrative Appeals Tribunal ("the AAT") decision in Canberra Cruises and Tours Pty Ltd and Minister for Urban Services [1999] ACTAAT 14 in which it was decided that the decision maker was entitled to take into account the Government's developing policies and plans for the Kingston Foreshore Redevelopment (as it was then known).

Mr Clynes also drew attention to section 104 of the Planning Act, which purported to limit the power to bring legal proceedings to question the validity of a provision of the Territory Plan. In response, Mr Erskine said it was beyond the power of the ACT to limit access to the Federal Court.

Mr Dickinson submitted that the Tribunal should not stay the proceedings as to do so would subject the parties joined to ongoing uncertainty and to additional expense. They had set aside the scheduled three days to participate in the hearing and had engaged an expert witness at some expense to assist them. Mr Harris agreed with him. Mr Streatfeild also supported the position of the parties joined, contending that they could not afford to go to either the Federal Court or the Supreme Court and that it would be better for the Tribunal to hear the matter now, and let the Federal Court action proceed in due course.

The Tribunal gave careful consideration to these submissions and decided against ordering a stay of the proceedings. It did so on the grounds that any order made could only be an interim order, and section 53 of the ACAT Act provides that the Tribunal may only make such an order if the Tribunal is satisfied that, if an order were not made before hearing of the application, the party applying for the order would be disadvantaged or would suffer harm.

In this case the Tribunal was not satisfied that the applicants would be disadvantaged or would suffer harm by not making the order. On the contrary, Mr Erskine conceded that the applicants were the ones who would be prejudiced by the granting of the application, since their development proposal would be on hold until the matter was settled.

The Tribunal was mindful of its duty, set out in section 7 of the ACAT Act,

to ensure the procedures of the tribunal were as simple, quick, inexpensive and informal as is consistent with achieving justice.

1. The Tribunal was also mindful of the principle established in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1, where Bowen CJ said

In my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided that the decision purports to have been made in exercise of power conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.

1. This question was also dealt with in Re Mckie where Thompson DP wrote at [15]

Prima facie an Act of the Parliament which has been regularly enacted and to which the royal assent has been given must be treated as having come into operation...and to be a valid Act to the provisions of which those administering it, including the Tribunal, must give effect until such time as it is declared by a court of competent jurisdiction to be invalid.

1. For these reasons, we concluded that the preferable course was to assume the validity of the legislation (including the subordinate legislation) and proceed with substantive hearing of the matter. We note that in his written submissions, Counsel for the applicants agreed that this was an appropriate course of action for the Tribunal to take, while reserving the right to rely on the arguments they had advanced should the issue come to be considered by a superior Court.

A brief history of Kingston Foreshore planning including the First Edition

1. In order to understand the issues in this case, a brief history of the planning of the redevelopment of the Kingston Foreshore Area (the KFA") may be helpful. In 1990, the National Capital Plan was established under the Australian Capital Territory (Planning and Land Management) Act 1988 (CTH) and, inter alia, included planning provisions covering the KFA. The first Territory Plan established under the Land (Planning and Environment) Act 1991 (ACT), was published in 1991 but made no specific provisions for the KFA which was at that time Commonwealth land.

2. Following a land swap with the Commonwealth Government, the ACT Government assumed responsibility for the area and special provisions covering the KFA were inserted into the Territory Plan on 8 June 2000 by Variation No 113. Meanwhile, the ACT Government had established, under the Kingston Foreshore Development Authority Act 1999 (ACT), a special authority to plan and develop the KFA, the Kingston Foreshore Development Authority ("the KFDA").

3. Section 4(1) of that Act defined the KFA in terms of an area identified as 8L in the Territory Plan, while section 6 of that Act set out the functions of the Authority as follows
   • (a) to promote, coordinate, develop and manage the development

(b) to carry out works for the development and enhancement of the

(c) to exercise any other functions given to the authority by or

That Act was repealed by the Planning and Land Legislation Amendment Act 2003 (ACT), the functions of the KFDA being absorbed into those of the LDA, initially established under the Planning and Land Act 2002 (ACT), and subsequently re-established under Chapter 4 of the Planning Act.

By 1999, a scheme of development for the KFA had been developed and on 8 June 2000, both the National Capital Plan and the Territory Plan were amended, by Amendment 29 and Variation 113 respectively, to reflect the broad outlines of that scheme. The controls that now appear in the National Capital Plan (see paragraph 36 below) were inserted at this time.

Between 2002 and 2003 the KFDA commenced preparation of a Kingston Foreshore Development Control Plan ("the KFDCP") which set out in some detail the planning intention for the KFA, although all of its parts were never completed.

The Territory Plan was revised in 2002 and included the essential elements of the KFDCP in the Area Specific Policy for Area 8L (the KFA) under Part B8 - Entertainment, Accommodation and Leisure Land Use Policies. The Policy included specific controls applying to each of the "precincts" identified within the KFA. In the 2002 Territory Plan, the subject land was within Precinct "e" - Cunningham Street.

Following the repeal of the Land (Planning and Environment) Act 1991 (hereafter "the repealed Act") and its replacement with the Planning Act in 2007, in 2008 a new Territory Plan was prepared which, at section 14.3, included the Kingston Foreshore Structure Plan covering the KFA. This duplicated the provisions of the 2002 Territory Plan, including the specific controls for Precinct (now called Area) "e" - Cunningham Street (but which was listed as Area "h" in the accompanying text). However, to further confuse the issue, in the same Territory Plan 2008, both the CZ5 - Mixed Use Zone Development Table (at Figure 7) and the CZ5 - Mixed Use Zone Development Code (at Figure B2) include a different diagram of the KFA, now called the Kingston Mixed Use Area, in which the area containing the subject land is identified as area "a". To avoid further confusion, we will refer to it as Precinct "e".

The KFDA and the LDA have successively released parcels of land within the KFA for development. In 2002, construction of The Gateway complex began on site 1 and infrastructure works for other stages were commenced. As sites were released for development, lease and development conditions, including Site Specific Conditions, were prepared and made available to potential buyers.

The area of interest in this case, comprising sites 8 and 9 of the KFA, was released for sale in 2007 under the name First Edition, following its planning by the LDA in association with architect Colin Stewart and the selection of indicative designs from three well know architectural firms. It comprised 59 blocks and was launched by the then Planning Minister Mr Simon Corbell on

21 March. The accompanying media release quotes him as saying

I am delighted to see the release of this quality precinct, which will be the first opportunity for stand alone housing in such a unique Canberra location... this is a contemporary lifestyle setting for purchasers wishing to build their own very special architecturally designed houses.

The speaking notes for the Minister included the following comment:

The model homes provide an example of what can be designed and built within the First Edition precinct, as an alternative to apartment style living, but with unique architectural character and form suitable for an inner city life style.

1. The L&Ds for six of the larger blocks in First Edition (including the subject land) which were identified as Group 5, were developed and purportedly approved by the respondent on 19 April 2007 (the validity of this approval is disputed by the applicants).

2. Auctions of blocks in First Edition were held on 30 June, 8 July, 19 August and 23 September 2007, with the subject land being sold at the last of those auctions to the applicants as joint purchasers. The parties joined purchased their blocks at earlier auctions and each of them has subsequently developed a single dwelling on their block, in accordance with the L&Ds. (The applicants also bought Blocks 7 and 8 Section 57 Kingston at the September auction and these are being or have been developed in accordance with the L&Ds).

1. The Tribunal is prohibited, by section 50 of the Planning Act, from approving the doing of any act that is inconsistent with the Territory Plan. Under the Territory Plan the subject land lies within a Commercial Zone and in what is known as a CZ5 Mixed Use Zone. It is therefore subject to the provisions of the CZ5 Mixed Use Zone Development Code ("the CZ5 Code"). The land is subject to the provisions of both the Planning Act and the Territory Plan. By virtue of section 114(1) of the Planning Act and the CZ5 Mixed Use Zone Objectives and Development Tables and, because it involves consolidation of leases, the DA falls within the Merit Track for assessment purposes and is subject to the considerations set out in sections 119 and 120 of the Planning Act.

2. Within the CZ5 Code, the general area is identified as the Kingston Mixed Use Area whose boundaries are shown at Figure B2 of the CZ5 Code. It is subdivided into "areas" (= precincts) to which Site Specific Controls within the CZ5 Code may apply. The subject land lies within precinct "e", but it is important to note that the Territory Plan does not identify the First Edition blocks as having any Site Specific Controls applying to them that are different from those applying to the remainder of precinct "e".

3. However, Rule 3A and Criterion 3A of the CZ5 Code provide that

R3A The development proposal complies with any relevant pre-existing approved Lease and Development Conditions and any required developer's consent has been provided. To the extent of any inconsistency, the requirements of the Lease and Development Conditions will take precedence over any Rules in the Multi Unit Housing Development Code as listed below

• Site Area Requirements
• Parking
• Water Sensitive Urban Design
• Front Street Setback
• Side Setback
• Rear Setback
• Building Design
• Materials and Finish
• Interface
• Vehicle Access
• Solar Access
• Private Open Space
• Landscaping

C3A The development meets the intent of the Lease and Development Conditions.

1. The applicants contend that the subject land is subject to the Multi Unit Housing Development Code and that Rule 3A and Criterion 3A of the CZ5 Code are irrelevant to this application.

2. The applicants further contend that there is no sound legal basis on which the L&Ds could apply to the subject land because the section 227 of the repealed Act under which they were purportedly made does not authorise the making of lease and development conditions. The merits of these contentions will be examined below.

3. In addition to Territory law, the land is subject to the National Capital Plan ("the Plan") established under the Australian Capital Territory (Planning and Land Management) Act 1988 (CTH). Section 11 of that Act states:

(1) An enactment that is inconsistent with the Plan has no effect to the extent of the inconsistency, but an enactment shall be taken to be consistent with the Plan to the extent that it is capable of operating concurrently with the Plan.

(2) The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the Plan.

1. In the Plan, paragraph 4.5.6 deals with the Kingston Foreshore and sub-paragraph 4.5.6 (ii) is headed "Built form and materials". The only part relevant to this matter is under the heading "Building Height" which reads as follows:

The overall height of buildings in the area is to be generally consistent with that of the tree canopy of mature trees in the area. This can be achieved through buildings being a maximum of 4 storeys except for some taller buildings or focal elements where these do not significantly impact on the landscape of the area or detract from the massing of the Kingston Powerhouse building.

There is nothing in the Plan that prohibits the imposition of controls that would

1. Because there were a number of distinct issues raised by the applicants in relation to the decision under review, it will be convenient to deal with them seriatim.

Issue 1. The indicative drawings and the associated documents

1. The applicants sought reconsideration of the original decision following discussions with officers of the respondent at which they were apparently asked to provide indicative drawings of the development that could result if the application were to be approved, as well as information on parking and traffic impacts arising from such a development. Such indicative drawings were prepared and lodged with the application.

2. In her letter dated 29 April 2010 accompanying the application for reconsideration, Ms Barnes stated that

Plans contained in this application for reconsideration are indicative ONLY and are included, as requested by ACTPLA, to assist in the assessment of the reconsideration.

It is important to note that at this stage, this application is for a reconsideration of the original DA which sought approval for a consolidation of the leases for blocks 1 and 2, section 58 Kingston and a subsequent variation of the lease, resulting from a successful consolidation.

A summary of the development proposal by Collins Caddaye Architects (who

had prepared the drawings) and a statement relating to traffic and parking arising

from such a development by Mr Graeme Shoobridge of Hughes Trueman Pty Ltd

1. The drawings showed a four-storey element fronting Printers Way and containing the commercial elements at street level, with four two-storey townhouses fronting Waygoose Street and Percy Douglas Lane. Parking would be provided in a two-level basement accessed from Percy Douglas Lane. The Collins Caddaye report described the four-storey element as comprising sixteen 50 m2 "modules" which could be used as individual apartments or combined to accommodate office or cultural uses.

2. In an accompanying letter Mr Mark Flint of Meyer Vandenberg Lawyers, acting for the applicants, stated that "there are no plans in the present proposal" but added

Any concerns relating to the bulk or scale or the parking and access requirements of a proposed building can be dealt with in response to the development application to erect the building.

However, to facilitate assessment by the Authority, our clients have included indicative plans to demonstrate the feasibility of a development on the consolidated block.

1. Following further assessment, the matter was referred to the respondent's Major Project Review Group ("MPRG") on 9 June 2010. The referral stated that

The applicants have provided detailed documentation to support their view that consolidation of the blocks and the erection of 20 dwellings on the combined area will meet the intent of the Lease and Development Conditions as required by C3A of the Mixed Use Zone Development Code

refuse the reconsideration on the basis that the proposal does not comply with the Lease Purpose requirements of the Lease Conditions contained in the Lease and Development Conditions.

1. The Lease Purpose Clause in the Lease Conditions contained in the L&Ds read:

(i) a single attached house; or

(ii) a single detached house...

1. In his Reasons for Decision on the application for reconsideration, Mr Neil Savery, as Delegate of the respondent, adopted the recommendation from the MPRG and stated (inter alia)

The information provided by the applicant for reconsideration provided no grounds for approval of the proposal. The application for reconsideration sought to demonstrate that consolidation of the blocks and the erection of 20 dwellings on the combined area would meet the intent of the Lease and Development Conditions as required by C3A of the Mixed Use Development Code. The Authority does not support the view that there is no requirement that the lessee must build in accordance with the development conditions before being entitled to apply to consolidate or vary the lease...

It seems clear therefore that the drawings (and supporting documents) submitted with the application for reconsideration were significant factors in arriving at the respondent's decision.

Mr Erskine submitted that it was important to recognise that the development application was very limited in scope. It sought only to consolidate blocks 1 and 2 into a single lease and to vary the Crown lease purpose clause, by the addition of "multi-unit housing" as a permissible use and by increasing the size of the permissible office space. The proposal did not involve any development within the meaning of subsections 7(1) (a), (b), (c), (d) or (g) of the Planning Act, that is, building and related works.

He contended that section 120 of the Planning Act did not permit the Tribunal (or the respondent) to consider the indicative drawings and documentation in deciding the application. To do so would mean considering a "proposal" for which an applicant does not actually seek development approval. He contended that to do so would rest on a flawed understanding of the use of the terms "development proposal" and "development application" in Chapter 7 of the Planning Act.

He drew attention to section 112 which, he said, explains that Chapter 7 is directed at the assessment of ...proposals and to section 113, which explains that the relationship between development applications and development proposals is that a development application is for approval to carry out a development proposal. Hence, he submitted, Chapter 7 assumes that a development proposal is contained in a development application. Section 119 also assumed that a development proposal would be the subject of a development application.

He observed that in section 120 the legislation speaks of "a development application for a development proposal" and contended that the respondent wanted this to mean that a "proposal" could be much wider that that for which an "application" is being sought. He submitted that section 120 must be construed according to the rules of construction set out in the Legislation Act 2001 (ACT) ("the Legislation Act") that is, it must be given an interpretation which would best achieve the purpose of the Planning Act; must be read in the context of the Planning Act as a whole; and in working out the meaning of the section, regard may be had to material not forming part of the Planning Act, including the explanatory statement to the Planning and Development Bill (2006) (ACT) and the presentation speech made to the Legislative Assembly during its passage.

In this connection, he observed that the Planning Act is quite consistent in referring to a "proposal" as being the subject of an "application" and noted that it is the application, not the proposal that is ultimately approved under section 162.

Mr Erskine contended that section 120 is directed only to the process that the respondent must undertake in deciding development applications, that is, at procedural fairness, not on mandating a particular outcome based on the matters to be considered. Nor does it grant the respondent any particular discretion in deciding a development application; on the contrary it makes it plain that the respondent does not have any discretion as to what material may be taken into account. He said that section 120 is only concerned with development proposals that are the subject of the actual development application under consideration, not with some broader proposal for the development of the land. This, he contended, was made plain when it is read in the context of the Planning Act as a whole, including in particular sections 112, 113 and 119 which assume that a development proposal will be the subject of the application for development approval.

He submitted that, in accordance with section 155 of the Legislation Act, while the [Planning Act] dictionary definition of development proposal states that it

includes proposals for development, whether in a development application or otherwise

the definition will apply except so far as the contrary intention appears. In his submission, when section 120 is read in the context of sections 112, 113 and 119 of the Planning Act, the intention is that the dictionary definition does not apply to section 120.

1. In his view, section 120 did not permit the respondent to take into consideration any conclusions or assumptions about what might be the nature of any subsequent or separate development proposal. As the indicative drawings and documentation do not depict the development proposal that is the subject of the development application, section120 does not require that they be taken into consideration. To do otherwise would amount to the respondent approving or not approving the "speculations and ideas" of the applicant, whether or not those speculations and ideas ever crystallise into a formal development application.

2. He further observed that the applicants had made it clear that the plans contained in the application for reconsideration were indicative only, and submitted that the fact that they bore no relationship to the applicants' broader intentions for development of the land leads to the conclusion that they are irrelevant. He contended that the respondent's view to the contrary rested on a flawed understanding of what is relevant for a consolidation and variation of a Crown lease. What matters, he submitted, is whether the proposed terms of the Crown lease are consistent with the Territory Plan and the other relevant matters set out in section 120. In the present case, the indicative drawings represent one possible way in which a building might be proposed for the site; there are many others. The proposed lease variation in no way depends on whether something like these drawings might one day be approved.

3. Mr Clynes responded by asserting that the applicants' object is to have the Tribunal disregard the fact that their application is a precursor to their seeking to redevelop the consolidated block in a manner which would, inter alia, involve multi-unit housing
   • (a) in a single residential area: and
   • (b) built in excess of the present height restrictions of two storeys plus some three storey elements.

Additionally the amount of floor area for an art gallery and an office would

1. He rejected Mr Erskine's assertion that the respondent sought to approve or disapprove of the "speculations and ideas" of the applicant, contending instead that the respondent and the Tribunal were entitled, indeed obliged, under section 120, to have regard to the fact that the "development proposal" contemplates a future breach of the L&Ds in at least the two material aspects mentioned in paragraph 55.

2. Nothing, he said, turned on the fact that section 162 of the Planning Act requires that it is the "application" and not the "proposal" that must be approved or not approved. That step can only be taken in the context of, inter alia, section 120 which mandates that one must have regard to both the "development application" and the "development proposal" when making the decision to approve or not approve.

3. He submitted that for the purposes of section 120, "development application" and "development proposal" are the two separate concepts which together constitute "development" and "proposed development" referred to in subsections 120(a), (b), (e) and (f) compared with subsections 120(c) and (d) where "application" is used.

4. Mr Clynes observed that the Planning Act dictionary definition of "development proposal" was :

A proposal for development whether in the development application or otherwise

and in his submission, that definition is plainly much broader than the bare

"development application" and is sufficiently broad so as to include the contents

of the indicative drawings. The applicants have argued that the dictionary

definition does not apply to section 120, but he submitted that no contrary

intention is manifest and the provisions of section 120 are entirely consistent

The Tribunal has no doubt that the applicants intend, in the long run, to seek development approval for a development along the lines indicated by the indicative drawings, which would include at least some multi-unit housing in a four storey element, should their application to consolidate the blocks and have a new lease granted succeed. There would be no point in lodging the development application which is the subject of the decision under review, if it were not so.

Furthermore, the applicants engaged Collins Caddaye Architects to prepare the indicative drawings and some plans for the building and an analysis of the proposed development against relevant site planning controls; and Mr Graeme Shoobridge of Hughes Trueman Pty Ltd to prepare a car parking and traffic analysis based on the Collins Caddaye plans. They also had discussions with officers of the respondent and the LDA about their proposal. So the Tribunal does not accept that the indicative drawings and associated documents are mere "speculations and ideas of the applicants" as characterised by Mr Erskine. Nevertheless, we accept that they do not necessarily represent a definitive proposal.

However, the question to be resolved is whether the respondent (and the Tribunal) is entitled to have regard to the indicative drawings and supporting documents that were lodged during the reconsideration process (albeit at the request of the respondent) in deciding whether to approve or not approve the application.

Section 113 of the Planning Act makes it clear that a person who has a "development proposal" may apply to the respondent for approval to undertake the proposed development. It is also clear that in the DA, the description of the "development" for which approval was sought was limited to the consolidation of the blocks and the issuing of a new lease with a varied purpose clause including, inter alia, multi unit housing, but it is not clear that this comprehended the "development proposal".

"Development, in relation to land" is defined in section 7 of the Planning Act and includes "consolidating the land" [section 7(1) (e)] and "varying a lease relating to the land" [section 7(1) (f)] but as noted above "development proposal" is defined in the Planning Act dictionary as meaning

A proposal for development, whether contained in a development application or otherwise

What then is the meaning of "or otherwise"? The Tribunal is satisfied that it extends the concept of a development proposal beyond what may be specified in the development application and that no intention to the contrary can be read into section 120. Section 120 lists a number of matters that the respondent must consider when deciding a development application in the merit track, but is does not follow that it is an exhaustive list.

1. Section 193 deals with reconsideration of decisions and subsection (6) reads

Also, in reconsidering the original decision, the planning and land authority -

(a) must consider any information available to the authority when it made the original decision and information given in the reconsideration application; and

(b) may consider any other relevant information.

1. We do not see how, given the dictionary definition of "development proposal" and the provisions of section 193(6), the respondent could do otherwise than "consider" the indicative drawings and supporting documentation. It is clearly relevant information; it was obtained otherwise than from the development application; and was "given" in the reconsideration application (albeit with qualifications about its indicative nature). We conclude that both the respondent and this tribunal are entitled to have regard to the indicative drawings and the supporting documentation in deciding the application.

Issue 2.The assessment of a development application according to its terms

1. Mr Erskine submitted that, even if the applicants had intentions to apply for approval to carry out any of the sorts of development mentioned in subsections 7(1)(a), (b), (c), (d)) or (g) of the Planning Act or as depicted in the indicative drawings and documentation, the current proposal must be assessed on its merits according to its terms. This principle, he contended, has consistently been recognised by the ACT Supreme Court in Canberra Tradesman's Union Club & Anor v Commissioner for Land and Planning and Ors

[1998] ACTSC 244 and by the AAT, most notably in P_r_eiss & Ors and ACT Planning and Land Authority [2008] ACTAAT 25.

2. He noted that in Preiss, the AAT cited a portion of Crispin J's judgement in Canberra Tradesman's Union Club in which he observed that where a contemplated activity is illegal only because of statutory restrictions on its conduct in particular places or other provisions of a planning nature, it is open for the planning authority to take into account the possibility that the government might accede to representations that those restrictions be removed.

[57] We accept that this decision supports the submission made on behalf of the lessee that, by itself, the fact that the old Territory Plan does not permit the subdivision of either property does not preclude approval being given to a step being taken towards that end, if that step is not inconsistent with the Territory Plan.

1. Further, Mr Erskine noted that in Cherry & Rounds and ACT Planning & Land Authority; Old Narrabundah Community Council In and ACT Planning & Land Authority [2004] ACTAAT 36, the AAT approved an application for a Crown lease variation while at the same time rejecting that part of the application that sought approval for multi-unit development, which he contended, demonstrated that there is no nexus between what building might or might not be erected on a site and a variation to the Crown lease.

2. Mr Clynes rejected the decisions in Preiss, Canberra Tradesmen's Union Club, and Old Narrabundah Community Council as having any precedent value on the ground that they were decided under the repealed Act and the legislative scheme under that Act did not bring into play the separate notions of "development application" and "development proposal". Instead, he submitted, these notions were first brought into existence by the Planning Act, for example in section 119(1) which reads

Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with...

and section 120 which reads

In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following...

By contrast, he submitted, the repealed Act at section 230 provided that

The relevant authority may approve or refuse to approve an application

and the decision-maker was not obliged to consider any material beyond the bare content of the application document.

1. In response to this proposition, Mr Erskine observed that the Explanatory Statement that accompanied the Planning and Development Bill 2006 said, of merit track applications, "the proposed process for this type of application will be similar to the current process" which, he submitted, did not indicate any intent to make radical changes to what had been the case under the repealed Act.

1. The issue to be decided is whether the decisions of the ACT Supreme Court in Canberra Tradesman's Union Club and of the AAT in Preiss and Old Narrabundah Community Council constitute binding precedents that would require the Tribunal to ignore the indicative plans and approve the consolidation and lease variation on the basis that at some future time the proposed multi-unit development might be approvable. We have carefully considered the cases in question and believe that each of them can be distinguished from the present case.

2. In the Canberra Tradesman's Union Club case the issue was whether a decision by the AAT to approve an application for a change in the purpose clause of the Canberra Casino lease to include, inter alia, the use "club" would facilitate an illegal activity, that is, the operation of poker machines which was prohibited by section 76 of the Casino Control Act 1988 (ACT). In a long and complex decision, Crispin J, in obiter dicta, commented that

[36] Whilst it is no doubt relevant for a planning body to consider

Whether a lease variation has been sought in order to facilitate an illegal activity that does not mean that an application for such a variation cannot be approved if it is within the contemplation of the applicant that an activity might ultimately be conducted on the relevant property and that course is not presently permissible. Where the contemplated activity is illegal only because of statutory restrictions on its conduct in particular places or other provisions of a planning nature, it is open to the Commissioner to take into account the possibility that the government might accede to representations that those restrictions be removed.

but did not decide that the lease should not have been varied, concluding instead

that the AAT had not fallen into error by ruling that the appellants lacked

1. Nevertheless, Crispin J's views provide valuable guidance. Had he needed to do so, the Commissioner for Land and Planning might well have concluded that he could approve the lease variation having regard to the possibility of a subsequent decision to change the existing policy on poker machines, because such a possibility would not have been a matter for determination by a planning authority. But that is not the case here, where the "illegal' activity is clearly a matter of planning about which the respondent had every right to form a view.

2. In Preiss, the AAT decided to confirm a decision to approve applications for variation of leases to allow multi-unit housing in a Heritage area which could lead to unit-titling (which, at the time of the original decision, was prohibited on the blocks in question) because when it was being considered by the AAT, the law had already been changed to allow unit-title subdivision on such blocks. It cited, with approval, the passage from Canberra Tradesman's Union Club quoted in paragraph 74 above and made the comments quoted in paragraph 69 above. However, it noted that the old Territory Plan had since been replaced by a new Territory Plan and there would be no impediment to approval of a fresh application under the new Territory Plan, and stated that

[21... It would be an unreasonable exercise of the Tribunal's discretion to refuse approval to the development application and thereby require the lessee to make a fresh application under the current Territory Plan for approval of the lease variation sought so as to satisfy R28(b) of the Code.

1. No such change in the law has occurred in the present case. While here it would be open to the respondent (and the Tribunal) to consider whether it should approve the consolidation and subsequent lease variation (which would be permissible under the Planning Act) neither body would have any reason to suppose that a decision to remove the restrictions on development of First Edition blocks imposed by the L&Ds would be made, assuming that the L&Ds were validly made and do apply to the blocks in question. We shall address these questions below.

2. The decision in Old Narrabundah Community Council does not assist in resolving the question. While it would be open to the Tribunal to approve the consolidation of the leases and the issuing of a new lease with a varied lease purpose clause, that would have the effect of removing altogether the L&Ds currently applying to the two leases because a new block identifier would be issued, to which the L&Ds would not apply. Because the main issue to be decided in this case is the validity and applicability of the L&Ds (to which we will next turn) it would be inappropriate for the Tribunal to contemplate that course of action at this stage.

3. We conclude that we are not bound by any precedent decisions to approve the application according to the terms in which it was made.

4. We now turn to the central issue in this case, which relates to the L&Ds and their application, if any, to the decision under review. It is not in dispute that the L&Ds comprised a series of three documents entitled, Lease Conditions, Development Conditions and Design Guidelines, or that they related to and were prepared prior to the sale of to the subject land. There are two principal aspects to the question of their validity: first whether the making of L&Ds was authorised by the repealed Act and whether in fact they were "made" under that Act; and second, whether they were ever approved by the officer authorised to approve them. We consider them separately below.

Issue 3: Whether the L&Ds were made under the repealed Act

1. The starting point for consideration of this issue is to be found in section 446A of the Planning Act which provides that:
   • (1) This section applies to a development application if the application

(i) a lease and development condition made under section 446 applies; or

(ii) a lease and development condition made under the repealed Act applied immediately before the commencement day.

_(2) The planning and land authority, or Minister, must consider the lease and development condition in making a decision under section 162 (Deciding development applications) in relation to the development application if - _

(a) the territory plan provides that the condition may vary the plan; and

(b) the condition is relevant to assessing the application and granting the approval.[2]

1. Mr Clynes submitted that the L&Ds for the subject land were made under section 227(4) of the repealed Act and that they applied immediately before the commencement day. This sub-section reads:

lease and development condition_, for a lease, means a condition, other than a condition contained in the lease, that - _

(a) was approved by the Territory when the lease was granted; and

(b) regulates the development or use of the land that is

1. Mr Erskine submitted that this subsection merely defined L&Ds and did not authorise their making. He contended that section 227, which required the respondent to keep, inter alia, a register of lease and development conditions, was not a source of power to make them. He referred to the Explanatory Statement that accompanied the bill in which these provisions were introduced, where it was stated that the amendments to section 227 add

a new paragraph (1)(f) [=1(j)] which requires the registration of lease and development conditions - these are defined in a new subsection (3)[= (4)]. A new subsection (1A) [= (2)] provides that the Minister may also register lease and development conditions applicable to a lease granted before the commencement of the new paragraph (1)(f) [=1(j)]. [3]

He submitted that if this provision authorised the creation of lease and development conditions, one would expect the Explanatory Statement to say so, because that would be a very important matter in explaining the intent of the provision. Equally fundamentally, he submitted, the Explanatory Statement referred to lease and development conditions already in existence. The purpose of the amendments was to include them on the Register kept under section 227. Hence section 227 was not a source of power to make L&Ds, but a section that acknowledged that they already existed and needed to be publicly accessible.

1. He contended that the principles of statutory interpretation are firmly against the respondents position, citing as authority the High Court decision in Gibb v Commissioner of Taxation of the Commonwealth of Australia [1966] HCA 74; (1966) 118 CLR 628 at 635, where Barwick CJ. McTiernan and Taylor JJ said

The function of a definition clause is merely to indicate that when particular expressions the subject of the definition are found in the substantive part of the statute under construction, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include, Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.

Mr Erskine went on to say that the presumption must be that a definitions section operates as described in Gibb's case, until the contrary is established. He drew attention to comments in D C Pearce and Robert Geddes "Statutory Interpretation in Australia" 6th Ed (2006) to the effect that

Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of legislation because of the approach set out in Gibb's case.

1. Mr Erskine consequently submitted that if section 227(4) of the repealed Act was not an empowering provision, then the L&Ds were not "made" under that Act and section 446 (1)(b)(ii) does not apply.

2. Mr Clynes disagreed, contending that section 227(4) was to be seen as both an empowering and a definition provision. He acknowledged that it might not be good drafting to include a substantive power in a definition provision, but asserted that the relevant provision may have such a character on its proper construction.

3. Furthermore, he submitted, it is evident that the L&Ds were "made" under the repealed Act. He referred to the definition of "make" in the Legislation Act which provides

make an instrument includes grant and issue the instrument

and contended that they were "issued" when the respondent provided them to

the LDA stamped approved on 20 April 2007 and when they were placed on the

public register established under section 227 of the repealed Act on 24 July2007

and further issued when they were made available by the LDA to prospective

purchasers as part of the marketing materials and auction documentation. He

further contended that they had been issued to the applicants at the time of the

auction (though this is disputed by the applicants).

1. In further support of his position that the L&Ds had been "made" he noted that
   • they plainly exist and are in evidence;
   • they are formally entered in the register created under section 227 (1) and have been on the public register since July 2007;
   • they were prepared under an established administrative system described by Mr Brooker's evidence which was faithfully followed (save that the signed approval of them by the authorised officer is missing);
   • they were prepared in consultation with relevant agencies before the respondent finalised them;
   • they were stamped with the requisite ACTPLA stamp as approved on 20 April 2007;
   • they have been acted upon and respected by those who have built or commenced building in the First Edition estate (including the applicants on the two additional properties that they bought in the precinct).

1. The AAT considered the problem of the authority of lease and development conditions in Coghlan and ACT Planning and Land Authority [2004] ACTAAT 7 and noted the absence of any clear legislative provisions at that time authorising the preparation and application of L&Ds. Nothing has changed in the intervening years. We discuss this further at Issue 7 below.

2. However, as in Coghlan, this Tribunal is confronted with fact that lease and development conditions have for years been prepared and, following approval by the respondent, been issued by "the developer of an estate" in connection with the release for sale of parcels of what was then known as "defined land" and is now referred to as a "future urban area" (see Planning Act, section 51 (2)(a)) which is defined in the Act dictionary as

an area of territory land identified in the territory plan for future urban development.

The Kingston Foreshore is such an area (see Territory Plan, part 14.4 Kingston Foreshore Structure Plan). The "developer" in this case is the LDA, established under section 31 of the Planning Act, which assumed responsibility for the role of the former KFDA. The LDA has continued to prepare lease and development conditions for parcels of land as they were released for sale and ceased to be "future urban areas". Until now, no challenge to their validity has, to our knowledge, arisen.

1. In order to address the issues raised by both Counsel, the Tribunal must reach some conclusion about the meaning of section 227 of the repealed Act, which was introduced by way of an amending Bill in 2000. It is best to do so by citing its relevant provisions as follows:

227 Register of applications, approvals, orders and lease and development conditions

_(1) The planning and land authority must keep a register of - _

(j) the lease and development conditions (if any) applicable

to a lease granted after the commencement of this paragraph; and

(2) The planning and land authority may enter in the register

details of lease and development conditions applicable to a lease granted before the commencement of subsection (1) (j).

lease and development condition, for a lease, means a condition,

_other than a condition contained in the lease, that - _

(a) was approved by the Territory when the lease was granted;

(b) regulates the development or use of the land that is

1. It is clear that section 227(2) recognises that lease and development conditions matching the definition in subsection (4) existed when section 227 of the repealed Act was enacted in 2000. While the meaning of subsection 227(1) (j) is not absolutely clear, we believe that the subsection recognises that lease and development conditions might exist for blocks released for sale after the commencement of the section and that if they were, the respondent was required to include them on the register.

2. The respondent did maintain such a register and in July 2007 added the L&Ds made in April 2007 to it. Although there is no requirement for such a register in the Planning Act, the register established under the repealed Act remains accessible to the public on the respondent's website and a print-out of the entry on it of the L&Ds for Block 2 Section 58was tendered in evidence (Exhibit 3).

3. The tribunal notes the strictures of Brennan J in Re Adams & The Tax Agents' Board (1976) 1 ALD 251 and accepts that it is not within its competence to determine the validity of the legislation or any instruments made under it, but we are entitled to form an opinion as to the "expressed will of the legislature" in order that we may act in accordance with law. In this case, we are of the opinion that the legislature gave statutory recognition to lease and development conditions applying to both new and existing leases, by the enactment of section 227 of the repealed Act, and that the L&Ds were made under the authority of that Act. Consequently, and because they applied to the subject land immediately before the commencement date of the Planning Act, section 446A comes into play. This raises the question of whether the Territory Plan does provide that the conditions may vary the Plan and whether they are relevant to assessing the proposal and granting the approval, as required by section 446A(2) if they are to be considered by the respondent. We will address that below.

Issue 4: Were the lease and development conditions formally approved

The applicants contend that the L&Ds were never formally approved because, even though they were stamped with the words "Approved ACT Planning & Land Authority Date: 19 April 2007", a copy of the Approval Minute signed by the officer responsible for approving them, Mr Paul Lees, cannot be found and Mr Lees was not called to give evidence.

A witness statement from Mr Ronald Brooker, Deed Manager for the Deed Management Unit in the Leasing Section of the Development Services Branch of the respondent, was tendered in evidence. Mr Brooker was not called to give evidence, nor was there any request from the applicants that he should be called and subjected to cross examination.

Mr Brooker's statement provided the Tribunal with a detailed explanation of the process by which lease and development conditions are developed. In brief, they are initiated by the developer (in this case the LDA), circulated to relevant government agencies for comment including the respondent, and when all responses have been received a consolidated response is prepared by Deed Management Unit and sent to the developer. The lease and development conditions are then revised and if need be recirculated, until all agencies are satisfied with them. The final version is then submitted to the respondent and when any necessary attachments have been added, they are submitted to the relevant manager (in this case Mr Lees) for approval. This involves the generation of an Approval Minute and following its signature, the signed copy of the Approval Minute is sent for scanning to a folder for work to be allocated and then moved to the correct directory for filing. The final copy of the lease and development conditions is exported to Adobe Acrobat for creation of a PDF and electronic stamping. Once stamped, the stamped copy is scanned and saved into Objective, the respondent's electronic data records management system, and a copy is sent to the developer and relevant agencies. At the end of the process, the lease and development conditions are uploaded to the register as required by section 227 of the repealed Act.

Mr Brooker said that his unit was responsible for electronically stamping the L&Ds and uploading them to the Register. He identified the various people who had been involved at the time the L&Ds were being made, including Ms Katrina Olesen who was responsible for the electronic stamping function, and tendered copies of relevant documents. One of these was a copy of the unsigned, undated Approval Minute which was prepared by Ms Olesen at the request of Mr Stuart Chalker, Acting Senior Officer in the Estates Unit reporting to Mr Paul Lees, whose role was to sign the Approval Minute. However, a signed copy of the Approval Minute could not be located.

Nevertheless, Mr Brooker tendered a "screen dump" from the Objective data base which, he said, confirmed that the Approval Minute was created and published (that is, finalised in Objective) by Ms Olesen on 19 April 2007. He asserted that from observation as her direct supervisor for some 5 months to May 2007 and by reputation, Ms Olesen was at all times diligent, competent and meticulous in the performance of her duties and to the best of his knowledge and belief, the electronic stamping of the L&Ds documents could not have occurred without Mr Lees having signed the Minute and Ms Olesen having sighted the signed copy.

Mr Brooker advised that Ms Olesen had subsequently left the respondent's employ and he understood that she now resided in Melbourne and that the respondent had no current address or contact details for her.

Mr Brooker said that he had caused detailed searches to locate the signed Approval Minute but it could not be found. He suggested that the signed document could have been misplaced by one of the officers involved or it could have been lost when it was sent for scanning. Alternatively, it could have been scanned but subsequently lost in Objective (as happens from time to time) or it could have been saved in a "work to be allocated" folder that was deleted after Ms Olesen left the unit.

Mr Erskine observed that no evidence was led that Mr Lees ever received the L& Ds or the Approval Minute, nor is he mentioned in any of the associated documents, other than the draft Approval Minute which has his name and a space for his signature. None of the named persons who had been involved, including Mr Lees, had been called to give evidence in the matter nor had any explanation been offered by the respondent for its failure to call them. Mr Brooker's evidence was, he contended, merely hearsay.

Mr Erskine submitted that the Tribunal should have regard to the well-known rule in Jones v Dunkel (1959) 101 CLR 29 and infer that the failure to call Mr Lees and other persons having a role in the process would not have helped the respondent's case, and if none of them could have established that the Approval Minute was signed the only conclusion available to the Tribunal is that the L&Ds were not approved.

In response, Mr Clynes submitted that there was no requirement for the L&Ds to be "approved" - the word did not in appear in section 446A of the Planning Act, and it is sufficient to prove that they were made under section 227 of the repealed Act even though sub section (4) refers to lease and development conditions "approved by the Territory when the lease was granted". In his submission, on 6 March 2008 when the leases in question were granted, the Territory had approved the L& Ds by placing them on the section 227 register on 24 July 2007 and by issuing them to the LDA the same day. He drew attention to section 8 of the Planning Act which reads:

Anything done in the name of, or for, the authority by the chief planning executive in exercising a function of the authority is taken to have been done for, and binds, the Territory.

1. He further submitted that the Tribunal should accept Mr Brooker's evidence about the electronic stamping of the documents, as no objection to it on "hearsay" grounds was made when the evidence was accepted into evidence, nor did the applicants adduce any evidence to the contrary. Mr Brooker had been prepared to attest to the matters in question on oath but the applicants waived that requirement.

2. Mr Clynes rejected the Jones v Dunkel argument, relying on the authority of Cross on Evidence (7th ed) which, at paragraph [1215] reads
   • (a) "...that unexplained failure by a party to give evidence, to call witnesses, or tender documents or other evidence or produce particular material to an expert may, not must, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case"

• (b) "The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference"

• (c) "...the rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of the evidence in the case. No inference can be drawn unless evidence is given of facts "requiring an answer". If there is no issue between the parties on a matter, there is nothing to answer; and if there is an issue between them, but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer".

3. He submitted that the respondent had called evidence on the matters of the execution of the Approval Minute, including that the signed copy was missing and the Tribunal should find that it had discharged any onus borne by it on these issues. Furthermore, to the extent that there was an issue "requiring an answer" about the execution of the Minute, Mr Brooker's evidence was uncontested and sufficiently provided the answer so as to permit the Tribunal to be satisfied that the instrument was signed at the time.

4. Mr Clynes further submitted that even if the Tribunal did not accept

Mr Brooker's evidence, it was not critical that the respondent should show that it fully followed its internal administrative processes of approval, because of the "presumption of regularity". He cited as authority the judgement of Hope JA in Carpenter v Carpenter Grazing Co Pty Ltd (1987) 1 ACLC 506 at 514 which read:

As I understand it, the true rule is that the presumption may reasonably be drawn where an intention to do some formal act is established, when the evidence is consistent with that intention having been carried into effect in a proper way, the observance of the formality has not been proved or disproved and its actual observance can only be inferred as a matter of probability.

In his submission, by applying this rule the Tribunal could be comfortably

satisfied as to both the execution of the unsigned copy of the Approval Minute

and to Ms Olesen having sighted the signed minute before she affixed the

1. This view was, he submitted, reinforced by s 40 of the Legislation Act which provided as follows;

It is presumed, unless the contrary is proved, that all conditions and steps required for the making of a statutory instrument have been satisfied and carried out.

In his submission, this means that all the conditions and steps for the making

of the L&Ds are to be presumed to have been carried out, because the contrary has not been proven

1. In response, Mr Erskine submitted that the presumption of regularity did not assist the respondent's case. He observed that the evidence from both Mr Brooker and Ms Chapman was that the signed Minute could not be found, yet it was too significant a document to simply have "gone missing". It was, after all, the respondent's case that the L& Ds have effect over and above the provisions of the Territory Plan and it was difficult to see how the approval could not have been a significant matter within the respondent and one that Mr Lees would not remember. Yet Mr Lees had not been called to give evidence.

1. The Tribunal has carefully considered the submissions of the parties and the evidence about this issue. It is, of course, unfortunate that the signed Approval Minutes cannot be found and, in the Tribunal's view, that Mr Lees was not called to give evidence about it. The only evidence was that of Mr Brooker which was unchallenged at the time, and again we considered it unfortunate that he was not called to permit cross examination.

2. Nevertheless, the weight of the evidence and of authority, and in particular section 40 of the Legislation ACT, leads us to conclude that we should accept that the Approval Minute was signed by Mr Lees and sighted by Ms Olesen and that the L&Ds were validly made.

Issue No 5: Whether the L&Ds were provided to the applicants prior to the auction or together with the contracts for the subject land

1. Copies of the L&Ds were in evidence, together comprising some 69 pages. Much evidence was given about whether or not the L&Ds were attached in some way to the contracts at the time they were signed by the applicants and whether their attention had been drawn to the L&Ds prior to the auction. This issue bears on the question of whether or not the L&Ds constitute part of the lease or of agreements collateral to a lease.

2. Both Mr Lourandos and Mr Yiannakopoulos provided witness statements and gave oral evidence to the effect that the L&Ds were not attached to the contracts given to them for signature. Each asserted that the documents they had been given to sign and been "light" and of about 10 pages. However, they each agreed that they had received two plastic boxes after signing the contracts for the four blocks they had purchased and agreed that a copy of the L&Ds was in each of the plastic boxes. Such a plastic box was available for inspection by the Tribunal and it did contain a spiral-bound set of the L&Ds. In their oral evidence, neither Mr Lourandos nor Mr Yiannakopoulos had any recollection of what was said by the auctioneer in his opening statement.
3. In his witness statement, Mr Lourandos asserted that during the week leading up to the auction he had driven past the temporary sales office but recalled that it was closed at the time. He said he did not take or receive any documents or material from the sales office or anyone else prior to the auction. He had, however, conducted some research of the Territory Plan as to the zoning and planning opportunities for the estate and had found that the subject land was covered by the Part B8 Entertainment, Accommodation and Leisure Land Use Policies which then applied and he had familiarised himself with the objectives of the precinct "e" and the permissible land uses which included "Apartment". He had not read the contents of the plastic boxes received after the auction until the following week.
4. In his witness statement Mr Yiannakopoulos asserted that he too had driven past the temporary sales office in the week preceding the auction, but he had spoken briefly to a man in the office who was "quite dismissive" of his enquiry and who did not provide him with any information. He had relied on Nicholas Lourandos for advice about the zoning and uses of the land, because

Mr Lourandos was an experienced property developer and he was not. He stated that following the auction he had examined the contents of the plastic boxes at lunch, at which Mr Lourandos was present, and had noticed that each contained a spiral bound document with the heading "First Edition Lease Conditions and Design Guidelines". However, he did not say that he had read them at that time. 5. Evidence was given by Ms Forner, an officer of the LDA who had been present at the auction. She said that the contracts were brought to auction in boxes which had lids that lifted off and the boxes contained hanging files for each Block so that the contracts could be easily extracted. She unequivocally stated that the contracts had attached to them by a bulldog clip the L&Ds and were in duplicate. After the auction when the purchaser came to the sign-up table, two identical copies of the relevant contract with the attachments would be extracted from the box. Ms Former said that if by error any contract did not have the L&Ds attached, that would have been easily identified because the contract for sale was 11 pages on blue paper, while the attachment was over 50 pages on white paper. She believed that the evidence on this point from both

Mr Lourandos and Mr Yiannokopoulos was incorrect. 6. Ms Forner also testified that in response to a subpoena for relevant documents she had contacted Ms Danielle Mildren, a Senior Associate with Chamberlains Law Firm ("Chamberlains"), and asked her to recall from storage various documents related to the sale. She had received a pile of documents from

Ms Mildren, including the original contracts for sale for the subject land signed by the applicants and each of the original contracts had the L&Ds attached by bulldog clip. 7. Ms Forner also gave evidence about the auctioneer's statement made prior to the auction. She attached to her second witness statement a copy of the prepared "Auctioneer's Opening Statement" and said that, to the best of her recollection, the auctioneer made this statement on the day in question and she believed that she would have noticed any significant departure from the prepared text, having heard it at the earlier auctions. That statement advised that the blocks offered were subject to the terms and conditions contained in the auction documents, copies of which had been available for some weeks and were available "here today" and advised prospective purchasers that it was "your responsibility to be aware of all of these conditions, and how they may impact on you". 8. Ms Mildren also provided witness statements and gave oral evidence which was, in essence, corroborative of Ms Forner's evidence. She asserted that any contract for sale that she exchanged without the L&Ds attached would have been obvious to her. She could not recall being handed or exchanging any contracts for sale without them. She stated that she would not have allowed any contract for sale that she dealt with to be signed without the required attachments, because they formed part of the contract and were part of the rights and obligations being purchased. 9. Ms Rhian Williams, a qualified solicitor presently with Meyer Vandenberg, but who had been working for Chamberlains at the time of the sale and was present at the auction of the subject land, also stated that to the best of her knowledge she would not have allowed any contracts for sale for First Edition that she dealt with to be signed and exchanged without the required attachments, because the L&Ds formed part of the contract. 10. Ms Williams also gave evidence about an exchange of telephone calls, emails and letters she had had with Mr Ross Reid of Meyer Vandenberg in January and February 2008 concerning the terms of the draft leases that had been provided for signature by the applicants. As early as November 2007 Mr Reid had been concerned about the apparent inconsistency between the purpose clause in the draft Crown Lease which he described as being 'at odds with both the lease terms and conditions "advertised" at the auction and the preliminary public information briefings given to potential bidders prior to auction.' While his main concern was whether the sale of art could take place from an "Art Gallery", the evidence shows that the L&Ds were in the hands of the applicants' solicitors as early as November 2007. Moreover, in an email dated

17 December 2007 from Mr Reid to Ms Mildren (which was attached to the applicants' witness statements) he referred to "the wording of the Lease Conditions on which the bidding was based at auction".

11. In their written statements, both Mr Lourandos and Mr Yiannokopoulos denied that they had instructed Mr Reid in those terms or that their bidding was based on the Lease Conditions. Both re-asserted that they received the L&Ds only after the auction as part of the documents contained in the two plastic boxes.
12. Mr Erskine submitted that neither Ms Forner, nor Ms Mildren, nor Ms Williams was able to say with certainty whether or not the L&Ds had been attached to the contracts signed by the applicants, nor whether they were made available to the applicants as part of the auction documents. He preferred instead the evidence of the applicants who were the only witnesses who could specifically recall what was signed by them and what they were given.
13. In response, Mr Clynes said that the evidence of Ms Forner in particular made it clear that copies of the auction documents (which included the L&Ds) had been available for some weeks to persons interested in buying in the First Edition estate. They were also available at the auction.
14. As to whether the L&Ds were physically attached to the contracts signed by the applicants, Mr Clynes submitted that the Tribunal should prefer the evidence of Ms Forner, Ms Mildren and Ms Williams to that of the applicants. He contended that having seen these three witnesses give evidence both under oath and cross-examination, the Tribunal could comfortably conclude that their evidence was credible and reliable. By contrast, neither of the applicants had the same qualities of care, candour and reliability exhibited by Ms Forner, Ms Mildren and Ms Williams.
15. He noted that neither of the applicants had any clear recollections of the auctioneer's statement that was read out at the beginning of the auction. There were marked similarities in their witness statements, including some identical paragraphs and turns of phrase and each denied giving instructions to their solicitor Mr Reid to the effect that the Lease Conditions formed the basis of their bidding at the auction.

1. The Tribunal, having read and heard the evidence of witnesses is satisfied that the L&Ds were either attached to the Contracts by a bulldog clip at the time they were signed, or were provided to the applicants immediately thereafter. It found the evidence of Mesdames Forner, Mildren and Williams to be convincing as to the improbability of them handing out and signing contracts to which the L&Ds were not attached, even though none of them could assert unequivocally that they were so attached to the particular contracts in question.
2. By contrast, the evidence of both Mr Lourandos and Mr Yiannakopoulos on this matter was unconvincing. Their written witness statements were so similar as to suggest that they had reached some agreement on what each would say (though it was conceded that they had been drafted by their solicitor after he had questioned them). Neither of them was particularly forthcoming when giving oral evidence and under cross examination. Mr Yiannakopoulos in particular was hesitant and unsure when asked about the extent and timing of his discussions with Mr Lourandos about the events of the auction.
3. We consider that the legal maxim of caveat emptor applies and that there was an obligation on the applicants as purchasers to undertake "due diligence" inquiries which they say they failed to do. Yet they signed a contract in which, in clause 20.2, they acknowledged their obligation to make their own enquiries and satisfy themselves as to the currency and accuracy of information contained in the Lease Conditions and Development Requirements (sic).
4. We do not think it credible that en experienced developer, such as

Mr Lourandos, would be so cavalier about purchasing the subject land at a cost to him of over $500,000 without making inquiries as to what, if any, lease and development conditions might apply to the land. He had ample opportunity to do so, having researched the then applicable Territory Plan as to the zoning and planning opportunities of the estate in the week leading up to the auction (16 - 23 September 2007) by which time the L&Ds were posted on the register of L&Ds maintained by the respondent on its website.

5. Nor do we believe that Mr Yiannakopoulos was an "innocent abroad" in this matter. He claims to have relied on Mr Lourandos's advice in relation to the land as he had not previously invested in property or undertaken a development. Yet he was prepared to invest over $500,000 in purchasing these two blocks but did not recall listening to the auctioneer's statement. He admits to having seen the L&Ds at lunch (at which Mr Lourandos was present) immediately following the auction yet he apparently did not bother to read them or draw then to Mr Lourandos attention, despite the L&Ds clearly indicating that they related to the subject land.
6. Consequently, we prefer the evidence of Mesdames Forner, Mildren and Williams and conclude that the existence and nature of the L&Ds were either known to the applicants prior to the auction, or attached to the contracts at the time they were signed or provided separately to the applicants immediately afterwards.

Issue 6: Whether the L&Ds formed part of the contracts

1. Mr Erskine submitted that in any event, even if the L&Ds were attached to the contract by a bulldog clip or by some other means the contracts themselves, objectively construed, made it clear that the L&Ds were not intended to form part of either of the contracts and were not intended to be contractually binding. He drew attention to clause 7.3 of the contracts which reads:

The buyer warrants that the Buyer has entered into this Contract relying entirely upon the Buyer's own inspection and evaluation of the Land and the warranties contained in this Contract and that this Contract constitutes the whole of the representations, warranties, undertakings and conditions of sale. The Seller will not be liable for any warranties,

The Buyer acknowledges the obligation to make the Buyer's own enquiries and satisfy himself, herself or themselves as to currency and accuracy of these Lease Conditions and Development Requirements. The Seller gives no warranty as to the accuracy of these Lease Conditions and Development Requirements and the Buyer will make no claim against the Seller whatsoever in this regard.

1. Mr Erskine said that clause 7.3 confirms that the entire agreement for sale of the Crown leases was set out in the contract and that there is no scope for the parties to incorporate pre-contractual negotiations or representations into the contracts, including any representations in writing, while clause 20.2 makes it abundantly clear that the L&Ds, even if physically attached to the contracts, did not form part of the contracts, because documents will only be incorporated into a contract if the parties objectively intended that they be so incorporated (citing as authority Riverwood International Australia Pty Ltd v McCormick

[2000] FCA 889; (2000) 177 ALR 193 at 208 per North J.) He submitted that the seller, by giving no warranty as to the accuracy of the L&Ds, made it clear that the parties did not intend to be contractually bound by them, hence they did not form part of the contract. 2. He further submitted that the Development Conditions contain an introductory statement to the effect that "the conditions will be taken into account" when considering any proposals to develop the blocks, and that if the parties were intended to be contractually bound by them, the introductory statements would have made it clear that the buyers would be bound to develop the land consistently with the Development Conditions. 3. Furthermore, the facts that the L&Ds might not be current or accurate and that the Seller expressly gave no warranty as to their accuracy and that the L&Ds themselves are not expressed as binding upon the parties, lead to the conclusion that they could not be contractually binding as being void for uncertainty. The evidence showed that there had been multiple versions of the L&Ds and there was no indication as to which version was referred to in clause 20.2. Even if the L&Ds were taken to be part of the contract, they would, as a consequence of being void, be severed, leaving the rest of the contract intact.

4. In his submission, neither Ms Williams nor Ms Mildren, the two solicitors who were present, were competent to speak of the intentions of the parties to the contract which, he contended, must be objectively determined, citing Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 264 ALR 15 and Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352, 401 as authority.
5. Mr Erskine also drew attention to the fact that while the Crown leases are entered on the Land Titles Register, the L&Ds are not, nor are they referred to in the Crown leases. In his submission, The Crown leases contain provisions setting out the agreement between the applicants and the respondent, on behalf of the Commonwealth, as to how the land may be used and because they are on the Torrens register, they are protected by indefeasibility of title. He referred to the decision of the High Court in Westfield Limited v Perpetual Trustee Company Limited [2007] HCA 45 at [39] which established that a person who wants to know the terms of the estate granted by the Crown lease need go no further than what is on the Land Title Register; no other extrinsic material can affect what is on the Register. He contended that it would take an enactment in very clear language to overturn the indefeasibility principles identified in Westfield.
6. Mr Clynes, by contrast, submitted that the evidence confirms that the L&Ds formed part of the contracts for sale, because they were physically attached to them. He agreed that the respondent had changed its position on this point, because Ms Chapman's original evidence on it was in error. She had relied on the copies of the relevant contracts lodged under subpoena by the LDA which did not have the L&Ds attached, but when Ms Forner's first witness statement revealed that she had not copied the L&Ds when responding to the subpoena, it became evident that the L&Ds had been attached to the original contracts. The copy of his contract tendered by Mr Harris's indicated that this was the practice and in his submission, the weight of evidence is that the L&Ds were attached to the contracts signed by the applicants.

7. Mr Clynes further submitted that the L&Ds were incorporated into the contract by reference, through the application of clause 1.5 which reads

A reference to "this Contract" includes the Schedule, Annexure Clauses, the special conditions, and attachments (if any) forming part of this Contract and includes the Auction Documentation for the Land issued by the Seller.

while in the Definitions and Interpretation section of the contracts at page 2 is:

"Auction Documentation" means the auction materials provided by the seller in relation to the Land.

1. Mr Clynes relied on the evidence of Ms Forner and Mr Hunter as to what constituted the "Auction Documentation". This was supplied in the form of a CD by the LDA's real estate agents, PRD Nationwide, to persons interested in buying in the First Edition estate. Attachment D to Ms Forner's first witness statement (which was a print-out from the CD) plainly showed that the L&Ds were contained within it. She had also given oral evidence that a "marketing version" of these L&Ds was available for any purchasers prior to the auction and during the auction.
2. He submitted that the applicant's contention that the L&Ds could not be taken to have formed part of the contract ignores the fact that clause 19.1 of the contract expressly provides that "the terms of the Contract will not merge on completion" and contrary to the applicants' submissions, buyers under the contracts thus remained bound by the entire terms of the same, following settlement. As authority he cited Meagher, Gummow and Lehane, _Equity: Doctrines and Remedies (_4th ed) at [40-050] and the comment at

page 1107 that "there will be no merger if the parties intend the term to survive the conveyance"

3. He rejected Mr Erskine's submission that clause 7.3 provided a basis for concluding that the L&Ds did not form part of the contract, because clause 1.5 clearly indicates that are so included (see paragraphs 141 and 142 above).

4. As to Mr Erskine's contention that clause 20.2 of the contract made it clear that the L&Ds did not form part of the contract, he said that the correct construction of this clause was that the LDA was not prepared to warrant the currency and accuracy of the L&Ds because, as finally approved by the respondent, they were not the LDA's documents. It was, in his submission, no more than a protective measure on the part of the LDA to protect it from claims by the purchasers should the currency and accuracy of information provided in the L&Ds prove to be deficient and because those L&Ds did form part of the contract.
5. He also rejected the "void for uncertainty" argument on the grounds that the L&Ds attached to the contracts were the final versions stamped approved by the respondent on 19 April 2007.
6. As to the indefeasibility argument, Mr Clynes submitted that the Torrens system was concerned with the indefeasibility of title and not matters of use which the L&Ds regulate.

1. Despite the well-considered arguments put by Mr Erskine, we must again find against him. We do not see how it is possible to ignore the provisions of clause 1.5 of the Contract which clearly states that the attachments and auction documentation form part of the contract. We have already concluded that the weight of evidence is that the L&Ds were attached to the contracts at the time they were signed and, even if they were not, they were certainly part of the auction documentation made available by the seller both prior to and at the auction. It is also clear from clause 19.1 that there was no merger following completion as both the applicants and the LDA signed contracts to this effect.
2. We accept Mr Clynes' view about Clause 20.2. that there is no uncertainty about the content of the approved L&Ds and we do not consider that the L&Ds in any way affect the indefeasibility of the title acquired by the applicants.

Issue 7: Whether the L&Ds are also conditions contained in a lease or in an agreement collateral to a lease

1. The Territory Plan, in Rule 3A and Criterion 3A of the CZ5 Code (see paragraph 33) refers to pre-existing approved lease and development conditions but the term "lease and development condition" is not defined in the CZ5 Code or the Plan.

2. The only related definition in the Territory Plan is to be found in the Definitions section where "Development condition" is defined as:

Any condition subject to the Planning and Development Act 2007, contained in a lease or an agreement collateral to a lease, that was made prior to the commencement of the Planning and Development Act 2007.

These are essentially the same words as used in the Definitions in the Territory

Plan 2002 where again, "lease and development condition" was not defined..

1. The L&Ds were made and the Crown leases issued prior to the commencement of the Planning Act. However, the applicants contend that the L&Ds for the subject land do not meet the requirements of this definition as they were not contained in the leases or in agreements collateral to the leases.
2. Mr Erskine submitted that the Territory Plan definition cited above raised two issues. The first was whether the L&Ds are the same as "Development Conditions". He submitted that while, initially, the respondent had claimed that "Development Conditions" were different from the L&Ds it had subsequently agreed that the bound document issued as Lease and Development Conditions comprised two distinct parts, one entitled "Lease Conditions" and the other entitled "Development Conditions". Therefore, Mr Erskine said, there were "Development Conditions" in the present case to which the Territory Plan definition applied.
3. Properly construed, he submitted that the L&Ds are best understood as two separate documents as they are separately headed, have distinct page numbering and have different introductory paragraphs. The Development Conditions contain a statement that they are "intended to be taken into account when assessing a development application" but no such statement is to be found in the Lease Conditions. This, he submitted, supported the conclusion that the latter were intended to operate separately from the Development Conditions and were not intended to be taken into account when considering any proposal to redevelop the land.
4. Mr Erskine submitted that the Lease Conditions were not intended to be, and ought not to be, construed as an instrument to restrict the fundamental common law rights of the applicants as Crown lessees on the one hand and the Territory as Crown lessor on the other, to agree to vary the Crown lease. He cited as authority the judgement of Gleeson CJ in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30] which reads:

...courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such intention is clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights and freedoms in question, and has consciously decided upon abrogation or curtailment.

1. He observed that Gleeson CJ.s words would apply equally to those who are employed to make delegated legislation, including the Territory Plan and, to the extent that the Lease Conditions are validly considered part of the Territory Plan, they are silent on the question of consolidating and varying the provisions of the Crown lease once varied [sic = consolidated]. In his submission, the Lease Conditions were not intended to remove the rights, powers and duties given under the Planning Act, including principally the applicants' right to apply for approval to consolidate the Crown leases and to vary the Crown lease purpose clause.
2. Mr Erskine drew attention to other Territory Crown leases tendered in evidence, which contained specific provisions restricting the right of Crown lessees to vary their leases. He noted Ms Chapman's evidence that it was the respondent's practice, in circumstances such as these, where the lease is granted for a particular purpose, to recommend to the LDA that there be a restriction on transfer or variation for five years, yet there was no evidence of any such recommendation in this case.
3. Mr Erskine said that the Development Conditions are also silent on the question of consolidating and varying the Crown lease purpose clauses. The Development Conditions are singularly concerned with the kind of developments that involve physical improvements on the land. Mr Hunter had given evidence that they relate to the "product that... could be developed... on the actual parcel of land" while Mr Adams had pointed out that Rule 3A only allows lease and development conditions to prevail over the Territory Plan in respect of a limited number of matters contained in the Multi Unit Housing Development Code, addressing matters of form and design. It follows that Development Conditions cannot be read as prohibiting the approval of the DA which is merely an application to consolidate the Crown leases and to vary the Crown lease purpose clauses.
4. The second issue was whether the Development Conditions are "contained in ...an agreement collateral to a lease". Mr Erskine submitted that the respondent's view had changed during the hearing, its initially position being that the L&Ds were not so contained, but later contending that they were contained in agreements collateral to the leases. He observed that it was common ground that the L&Ds are not found in the Crown leases themselves, and stated that "nor, on proper analysis, was it found in any agreement collateral to the leases". However, he did not elaborate on what was meant by the term "an agreement collateral to a lease".
5. Mr Streatfeild was quite specific in saying that the L&Ds were guidelines which are to be met or whose intent is to be met. He stated that they were not "agreements collateral to the lease" which he said would be absolutely binding. However, Mr Steatfeild also gave no explanation of what the nature of such agreements would be.
6. Mr Clynes agreed that the respondent's position had initially been that the L&Ds were not "agreements collateral to a lease" but said it had changed with the discovery that the L&Ds were in fact attached to the contracts and were also incorporated by reference. For these reasons they became part of the contracts, with the consequence that the contracts and the L&Ds were collateral to the Crown leases. He too did not elaborate on the meaning of "agreement collateral to a lease".

1. This issue is made difficult by the lack of clarity in both the repealed and the current legislation about the term "lease and development condition". The term was defined in s 227 (4) of the repealed Act as

lease and development condition, for a lease, means a condition,

_other than a condition contained in the lease, that - _

(a) was approved by the Territory when the lease was

(b) regulates the development or use of the land that is

However, in the Land (Planning and Environment) Regulation 1992, Schedule 4

provided for exemptions from the need for notification under section 229 of the

A development that is required by a lease and development

The dictionary to that Regulation included a definition of lease and

development condition that differed from that in the repealed Act. It read

Lease and development condition, for a lease, means a condition, other than a condition contained in a lease or an agreement collateral to the lease that ...

The addition of the words "or an agreement collateral to the lease" indicates

that at that time it was considered that a "lease and development condition"

could not be part of an agreement collateral to the lease, but that definition

died with the repeal of the Regulation and has not been resurrected_._

1. The definition in the repealed Act was not carried over directly into the Planning Act dictionary, presumably because the intention was to no longer make such lease and development conditions. However, section 446 of the Planning Act is a transitional provision, empowering the making of lease and development conditions for applications made under the repealed Act relating to approvals to subdivide defined land, and it defines "lease and development condition" as

a lease and development condition that could have been made under the repealed Act, but for its repeal.

Thus the definition from the repealed Act applies in this section.

1. Section 446A was added in 2009 to ensure that any lease and development condition made under section 446, or any made under the repealed Act, were to be considered in deciding a DA if the Territory Plan provided that the condition might vary the Plan and the condition was relevant to assessing the application and granting the approval. It, too, is transitional but there is no accompanying definition of "lease and development conditions" so we presume that the definition from the repealed Act applies in these circumstances as well.
2. It is evident from the section 227(4) definition cited above that, under the repealed Act, a "lease and development condition" was a distinct entity from a

"condition contained in a lease". The Planning Act dictionary does not contain any definition of "lease condition" or "development condition". However, the situation becomes even more confused when we turn to the Territory Plan definition of Development condition" as:

Any condition subject to the Planning and Development Act 2007, contained in a lease or an agreement collateral to a lease, that was made prior to the commencement of the Planning and Development Act 2007.

From this it seems clear that any condition relating to "development" in the

lease itself is a development condition, but by virtue of the definition in

section 227 (4) of the repealed Act, is not part of a "lease and development

1. There is no disagreement that the Development Conditions in the L&Ds are not "conditions contained in a lease". But there are conditions contained in the leases and they are quite specific, reflecting importantly the Lease Purposes set out in the Lease Conditions component of the L&Ds. Under clause 2(e) of the lease, the lessee covenants to use the land only for the purposes of
   • (i) single attached house; or
   • (ii) single detached house

(iii) cultural facility LIMITED to an art gallery; or

(iv) office

with specific limitations on the areas that may be used for cultural facility and office. As such, they are undoubtedly development conditions within the meaning of the definition in the Territory Plan.

1. There remains the question as to whether the L&Ds are contained in "an agreement collateral to a lease". Despite its use in R3A of the CZ5 Code, this term is also not defined in the Territory Plan.
2. Schedule 1 of the Planning and Development Regulation 2008 lists matters that are exempt from development approval and Part 1.2 includes "General Exemption Criteria". Among these, at Part 1.15 , is "Criterion 5 - Compliance with lease and agreement collateral to a lease" which reads

(a) a provision of a lease to which the development relates; or

(b) an agreement collateral to the grant of a lease to which the

but the dictionary accompanying that Regulation also does not define "an

1. We can find no definition of the meaning of the term "agreement collateral to a lease". The term "collateral" is used in contract law for a contract where the consideration is the entry into another contract and which co-exists side by side with the main contract, but that is not applicable here. The ordinary dictionary meanings of "collateral" is "situated at the side" or "running side by side" or "accompanying, attendant, auxiliary" or "additional, confirming".[4] All of these usages suggest that the phrase means simply some agreement that exists side by side with a lease and is additional to it.
2. We can see no reason why the contracts together with the L&Ds, whether physically attached or called up by reference, are not "agreements collateral to" the leases in question. They are certainly agreements and they exist alongside the leases. Consequently, we conclude that any "conditions" contained in the L&Ds are Development Conditions for the purposes of the definition in the Territory Plan. It follows that any reference to lease and development conditions in the Territory Plan includes both the Lease Conditions and the Development Conditions components of the L&Ds. However, in our view the Design Guidelines cannot be regarded as conditions.\
3. We conclude that, despite the ambiguities arising from the lack of common definitions, there are both "lease conditions" applying to the subject land and "lease and development conditions" contained in "agreements collateral to the leases" that apply to the subject land. Therefore Rule R3A and Criterion C3A of the CZ5 Code come into play. Nevertheless, it is to be noted that the L&Ds do not contain any prohibition on consolidation of leases, because at the time they were made, consolidation of leases was not anticipated according to

Issue 8: The application of Rule 3A and Criterion 3A of the CZ5 Mixed Use Development Code to the Development Application

1. Having decided that the L&Ds for the subject land were duly made under the repealed Act and that they are contained in agreements collateral to the leases of the land and are therefore development conditions within the meaning of that term as defined in the Territory Plan, we now turn to consider the provisions of that Plan in relation to developments in the CZ5 Mixed Use Zone.
2. Under the 2002 Territory Plan, Part A3 set out Plan Administration Policies and section 9 of that part dealt with Consideration of Land Use and Development Proposals. Paragraph 9.3 (x) of that section required the "relevant authority" to carefully consider "the provisions of any Lease or Development Conditions applying to the area" that were of relevance to the proposal. Note that the words are subtly different from "lease and development conditions". As in Coghlan, we are not sure whether this was an intended change or merely a slip of the pen.
3. When the new 2007 Territory Plan was promulgated, it made no reference to pre-existing lease and development conditions, even though section 446A of the Planning Act required that any such a condition be considered if the Territory Plan provided that the condition might vary that plan. This omission was corrected by the addition of Rule and Criterion 3A to the Residential Use section (1.2) of the CZ5 Code, the details of which are set out in paragraph 33 above.
4. Ms Chapman contended that the second and subsequent paragraphs (sic = sentences) of R3A clarify, that in the event of any inconsistency between the Multi Unit Housing Development Code and relevant lease and development conditions, the latter will take precedence in relation to a range of particular design and siting requirements. However, she contended that this clarification ought not to be interpreted so as to set aside the "intent" of the lease and development conditions in all other circumstances which, in this particular case, is to provide for a planned "small lot housing" precinct of contemporary two-storey attached or detached dwellings in accordance with a specific set of Design Guidelines as described in the "Lease Purpose" and the "Site Planning Objectives" sections of the L&Ds. She considered that the lease and development conditions for the subject land had not been met and in addition, no developer's consent had been provided.
5. Ms Chapman explained that in this case, the developer was the LDA and both the original DA and the Reconsideration Application had been referred to both Territory and Municipal Services ("TaMS") and the LDA for advice in accordance with standard practice, even though the respondent was not expressly required by section 148 (1) of the Planning Act to do so. In relation to the original DA, the LDA had advised that

given the significant departure from the intent of First Edition the Land Development Agency does not support the proposal to consolidate the sites and further would not support the construction of a 20 dwelling development on these sites

and had maintained this view in relation to the Reconsideration Application.

1. Mr Savery, when deciding on the Reconsideration Application, confirmed the original decision to refuse the DA and among his reasons stated that

(b)The application for reconsideration sought to demonstrate that consolidation of the blocks and the erection of 20 dwellings on the combined area would meet the intent of the Lease and Development Conditions as required by C3A of the Mixed Use Zone Development Code. The Authority does not support the view that there is no requirement that the lessee must build in accordance with the development conditions before being entitled to consolidate or vary the lease, and that the lease conditions have been met by virtue of the fact that a lease has been granted.

(c) The Authority does not support the view that R3A does not require the lessee to obtain developer's consent for any proposed development.

1. Mr Adams took a different view. He contended that the purpose of lease and development conditions was to form a framework for the LDA for the issue of a Crown lease. He said that lease and development conditions were not of themselves conditions of the Crown lease nor were they accorded weight of their own accord, unless otherwise provided by the Crown lease or by the legislative framework. His understanding was that once a Crown lease had been issued, and in the event of any inconsistency, the provisions of the Crown lease take precedence.
2. Because the subject land lies within the CZ5 Zone, Mr Adams' view was that whatever was allowable under the CZ5 Code could be applied for, including consolidation of leases and multi unit housing subject to compliance with the provisions of the Territory Plan governing siting, form and design.
3. In his opinion, R3A only allows lease and development conditions to prevail over the provisions of the Territory Plan in respect of a limited number of rules contained in the Multi Unit Housing Development Code, relating to matters of form and design which, he said, are addressed by development conditions. He observed that the proposal does not seek or generate any alterations to the development conditions (either site specific or general) and that in the event that the Crown lease purpose clause was varied to allow the proposed range of uses, they must still be accommodated within a built form which complies with the existing design parameters as set by the development conditions and the Territory Plan.
4. Mr Adams went on to observe that the site planning objectives within the Development Conditions component of the L&Ds indicate that the objective is "to create an area for innovation and diversity in building design and the location of benchmark contemporary housing" and contended that, while the text referred to individual dwellings, in his opinion that was not to the exclusion of other forms of development such as multi unit housing.
5. He asserted that multi unit housing is envisaged by the Territory Plan in this location and could equally fulfil that objective and that there may be multiple design solutions that would facilitate achievement of multi unit residential development on the site in a manner consistent with the intent of the Development Conditions. He contended that information about a possible development submitted with the Reconsideration Application demonstrated how, following lease variation, development could be accommodated on the site generally within the boundaries set by the Development Conditions and relevant rules and criteria of the Territory Plan, but said that it could be modified to comply completely with the intent of the Development Conditions in accord with Criterion 3A.
6. Mr Streatfeild contended that the L&Ds are relevant pre-existing lease and development conditions and must be considered by virtue of section 446A of the Planning Act and as a result of Rule and Criterion 3A of the CZ5Code. Rule 3A had three parts, all of which must be met to satisfy the Rule.
7. The first requires the proposal to comply with any pre-existing approved lease and development conditions and in his opinion it did not, because it includes implementing a lease condition that would allow multi unit housing, whereas the L&Ds allow only single dwellings. The second requires developers consent, in this case from the LDA and in his opinion the proponents had not provided any plans that demonstrated that a building proposal subsequent to the lease variation could meet R3A or C3A. In his opinion, it would be inappropriate to approve a DA until such compliance had been demonstrated. The third part of R3A allowed for replacement controls to certain Rules of the Multi Unit Housing Development Code, but without a plan to demonstrate that compliance with the replacement controls can be achieved, it is not possible to determine that R3A would be satisfied by a resultant building if the lease were varied.
8. Because, in his opinion, R3A cannot be complied with, under C3A it is necessary to consider whether the intent of the L&Ds has been met and he considered it had not, because the intent of the L&Ds was to limit use of the land to single dwelling with additional Art Gallery or Office permitted. He disagreed with Mr Adams' contention that a multi unit development could be made to comply completely with the intent of the L&Ds because the intent of the L&Ds was for single small lot housing.
9. Mr Erskine submitted that the Lease Conditions were intended to operate separately from the Development Conditions. Unlike the Lease Conditions, the Development Conditions are expressed as being intended to "be taken into account when considering any proposal to develop the site or to redevelop the site". These words are not reproduced in any manner in the Lease Conditions and their absence indicates that the Lease Conditions were not to be taken into account when considering any proposal to develop the land and in any case they do not contain any prohibition on either consolidating or varying the provisions of the leases. Ms Chapman's evidence confirmed that it was not intended that there be any restriction on the parties' rights to apply to vary the applicants' Crown leases. Hence the Lease Conditions are of no relevance to the present proposal.
10. He noted that the Development Conditions are also silent on the question of consolidation of Crown leases and on variation of the Crown lease purpose clauses. It follows that they cannot be read as prohibiting the approval of the DA, which is merely an application to consolidate the leases and vary their purpose clauses.
11. As to R3A and C3A, Mr Erskine submitted that R3A did not give the L&Ds primacy over the Territory Plan generally, but only in relation to the listed provisions of the Multi Unit Housing Development Code, which only relate to physical aspects of residential development, thus not excluding any land uses permissible in the CZ5 Mixed Use Zone nor over-riding any aspect of the CZ5 Code. Thus, the CZ5 Mixed Use Zone Development Table remains unchanged, confirming that applications for consolidation remain permissible.
12. Mr Erskine acknowledged that there might appear to be a conflict between allowing multi unit housing within the terms of a Crown lease on the one hand, and placing restrictions on the maximum number of permissible units within the requirements of the Territory Plan or the Lease Conditions and the Development Conditions on the other. However, in his submission, this apparent conflict is resolved by a proper analysis of the planning framework and the limited number of matters to be considered in deciding the present application.
13. He said that by virtue of section 50 of the Planning Act, the Territory Plan is afforded primacy over the provisions of a Crown Lease, such that a permitted land use is to be read down consistently with the provisions of the Territory Plan. Any decision under section 162 (Deciding development applications) which was consistent with a Crown Lease but inconsistent with the Territory Plan would be at risk of being declared invalid. This did not prevent a variation of the Crown lease to permit multi unit housing.
14. In his submission, the question of whether or not a proposal to construct a multi unit development is consistent with the Territory Plan is not a relevant question for a decision as to whether the Crown lease purpose clause ought to be varied to permit multi-unit housing. Rather, it is a question to be considered in the context of a DA for approval to construct the multi-unit development - a question for another day. Accordingly the L&Ds are irrelevant to this development proposal; they have nothing to say about what is proposed in this DA and cannot be taken into consideration.
15. Mr Erskine also submitted that the respondent had no duty, indeed no right, to submit the proposal to the LDA for advice. He noted that section 119(2) required the respondent to have regard to any advice given by an entity to which the application was referred under division 7.3.3, but submitted that the LDA is not such an entity. He contended that the only part of division 7.3.3 under which the respondent may refer a DA is section 148 and that permits referral only to an entity prescribed by regulation. The relevant regulation is regulation 26 of the Planning and Development Regulation 2008 and the list does not include the LDA, hence the LDA's advice is not relevant. In any case, their advice was entirely reliant on the L&Ds which in his submission were irrelevant to the DA under review.
16. Mr Erskine also submitted that referral to TaMS was improperly made, because it was done by email to TaMS and responded to by Mr Omar Rahman, TaMS Development Application Coordinator, rather than being made to the "chief executive of the administrative units responsible for...municipal services" as prescribed in regulation 26. In any case, the advice that was received was based on the indicative drawings which, as he had previously submitted, were irrelevant to consideration of the DA under review.
17. Mr Clynes disagreed with Mr Erskine's interpretation of division 7.3.3. In his submission, section 149(1) makes reference to a DA having been referred to "an entity" but not "under section 148" which implies that other entities may be consulted. He agreed that if it had referred to section 148, the respondent would not be able to take into account referrals to non-mandatory parties, but that was not the case. Ms Chapman had given evidence that at least two-thirds of the 100s of lease variation proposals received by the respondent in 2009-2010 had been referred to non-mandatory entities for comment. He submitted that there is nothing within sections 148 or 149 which suggests that only mandatory referrals are envisaged or permitted, and that the better view, consistent with the purposes of the Act, was that non-mandatory referrals are permissible.

1. The Tribunal agrees that in this DA, the applicants have sought approval only to consolidate the two leases and, following consolidation, to vary the purpose clause of the new lease to include multi unit housing and to change the wording of the reference to an art gallery and to increase the area permissible for use as Gallery or Office. It does not, per se, seek approval to the design and siting of any building on the subject land. Nevertheless, as outlined in paragraphs 39 to 66 above we have concluded that the respondent was entitled, when considering the DA, to have regard to the indicative drawings and other documents submitted with the Reconsideration Application when considering the "development proposal"..
2. Rule R3A of the CZ5 Mixed Use Development Code is quite clear - it requires that

The development proposal complies with any relevant pre-existing approved Lease and Development Conditions and any required developer's consent has been provided.

Further, if Rule R3A is not met, then Criterion C3A requires that

The development meets the intent of the Lease and Development Conditions.

1. We do not accept that the second sentence of R3A limits the Rule's application to the listed elements of the Multi Dwelling Housing Development Code. The proviso in the second sentence would come into play only if the proposal sought approval to multi unit development (and, it is to be noted, would give precedence in those circumstances to the provisions of the L&Ds). In our opinion, the rule requires the respondent and this Tribunal to consider whether the proposal applied for, that is, lease consolidation and lease purpose clause variation, complies with the L&Ds, whether any developer's consent has been provided. If not, the Tribunal must consider whether it complies with the intent of the L&Ds.
2. It seems to us self-evident that it does neither. The Lease Conditions component of the L&Ds clearly indicate that development on the subject land is limited to single dwellings, separate or attached, while the Development Conditions component refers to a "small lot housing precinct" in which it is intended that "individual dwelling designs will be of an extremely high standard" and "each block in the small housing precinct will be self contained...". These statements can only be interpreted as an intent to limit development to single houses on each block.
3. Because the DA seeks approval, inter alia, to the inclusion in the Crown lease purpose clause of "multi unit housing" it cannot comply with the provisions or the intent of the L&Ds. In our opinion, it matters not that there is, at present, no proposal for the design and siting of any building. The intent of the applicants is clearly to develop multi dwelling housing on the consolidated block if the DA was to be approved, and that would be contrary to the intent of the L&Ds. We rely on the views of Higgins J. in Jewel Food Stores Pty Ltd & Ors v Minister for Environment Land and Planning (1994) 122 FLR 269 at 279 where, in reference to approval of a lease variation, he said

it is, I think, permissible to have regard to the consequences which that approval authorises. That must include the prospect that the redevelopment thereby permitted will be carried out.

1. We conclude that Rule R3A and Criterion C3A of the CZ5 Code prevent approval being given to the proposal in the DA.

Issue 9: Section 120 and the Development Application and Proposal

1. Even if we are wrong in this conclusion, there remains the question of how the requirements of section 120 of the Planning Act affect the decision on the DA. Relevantly it reads

120 Merit track - considerations when deciding development

In deciding a development application for a development proposal

in the merit track, the decision-maker must consider the following:

(a) the objectives for the zone in which the development is

(b) the suitability of the land where the development is proposed to

take place for a development of the kind proposed;

(c) each representation received by the authority in relation to the

(d) if an entity gave advice on the application in accordance with

section 149 (Requirement to give advice in relation to

(e) if the proposed development relates to land that is public

(f) the probable impact of the proposed development, including

the nature, extent and significance of probable environmental

While section 120(e) is not applicable (the land not being public land) the

respondent is obliged to consider the other subsections in making its

1. In relation to subsections 120(a) and (b) Ms Chapman rejected the view espoused by Mr Adams that the "suitability" of land to accommodate a use was determined principally by the zoning of the land. In her opinion, it was the antithesis of best planning practice to conclude that a DA must succeed merely because it is within a range of purposes permitted by the relevant instrument. For example, she observed that "service station" was a permissible use within the CZ5 Zone but contended that it would be unreasonable to suggest that Block 1of Section 58 was suitable for a service station, by reason of its size, access and location in an area of single dwellings and narrow streets. On the contrary, the respondent must have regard to all appropriate planning principles. She contended that if, prima facie, any development could be carried out upon the land provided it was consistent with the zoning under the Territory Plan, then there would be no planning purpose to the lease and no utility in the leasehold land management system provided by the Planning Act.
2. Ms Chapman noted that Section 120(c) required the respondent to consider each representation received in relation to the DA that had not been withdrawn. In this case, 19 representations opposing the original DA had been received and 15 opposing the Reconsideration Application, all of which drew attention to the purposes for which the leases were sold, the LDA's marketing of the First Edition estate, and the applicable L&Ds. In her opinion, the respondent would have been remiss if it had not given an appropriate level of credence to the issues raised by those who made these representations. No evidence was given that any had been withdrawn.
3. Ms Chapman also contended that section 120(d) required the respondent to consider any advice given by an entity and in this case, the LDA had given advice that it did not support the proposal.
4. In relation to section 120(f) she also rejected Mr Adam's inference that because there were no physical (environmental) impacts arising directly from this DA, there were therefore no impacts of any kind to be considered. She said that consolidation of the land cannot be considered in isolation, because consolidation is a means to an end. She opined that the purpose of this particular DA was to "vary out" the L&Ds and to secure a new lease which would permit the land to be developed to a level of density far greater than originally proposed by the ACT Government when it engaged Colin Stewart to prepare the Design Guidelines. The Government's policy intentions for First Edition have been clearly articulated in the marketing for the estate and in the Design Guidelines incorporated into the L&Ds.
5. In relation to parking and traffic, Ms Chapman contended that consolidation of the leases raises issues related to the dynamics of how development on the consolidated site would operate, such as access to the proposed basement car park from the increased number of traffic movements arising from multi unit development, and the impact of on-street parking in the relatively narrow street network, and these needed to be assessed.
6. Waste collection could also be an issue if multi unit development was to be allowed. The advice from TaMS was that for development of the scale shown in the indicative drawings, the waste must be collected on site and access facilities provided for a 12.5m vehicle to collect waste from waste enclosures located within the site, but such facilities were not illustrated in the indicative drawings.
7. Ms Chapman contended that other possible impacts arising from consolidation included noise associated with increased traffic and waste collection, and effects on streetscape and amenity of existing residents arising from increased height of buildings, all of which she said were relevant planning considerations.
8. She noted that having regard to the provisions of section 120 of the Planning Act, the respondent had concluded that the DA should be refused.
9. Mr Paul Harris submitted that section 120 set out the considerations required for development approval and contended that if a lease variation provided for future development rights, then those rights and their effects must be considered as part of the development proposal. Based on the indicative plans, he identified negative impacts arising from the bulk and scale of four storey development on street character, impacts on solar access to his property, impacts on street parking and traffic, impacts from noise, and impacts on property values as matters to be considered.
10. Mr Erskine rejected Ms Chapman's analysis of the respondent's responsibilities under section 120, contending that the respondent was only required to take the matters set out in section 120 into consideration to the extent that they are not consistent with the Territory Plan and in his submission, the DA was consistent with the Territory Plan. He also rejected the respondent's reliance on the indicative drawings and documentation, which, as he had previously submitted, were irrelevant and should not be taken into consideration.
11. In relation to the subsections of section120, he made the following submissions:

• (a) The lease consolidation and variation proposed was either consistent with, or not inconsistent, with the several CZ5 Mixed Use Zone Objectives;

• (b) The land was suitable for the development proposal in the DA because consolidation and variation was permissible under the Territory Plan, consistent with the Zone objectives, and involved no physical development and therefore would not have any effect on neighbouring residential amenity;

• (c) The representations received by the respondent relied solely on the indicative drawings and documentation and the L&Ds, all of which were irrelevant, hence the representations were irrelevant and not required to be considered by section 120(c);

• (d) Advice given by the LDA and TaMS was not "entity advice" given under section 149 because neither the LDA nor Mr Rahman of TaMS were entities to whom the DA was referred under section 148, and in any case, the LDA's advice was based on the indicative drawings and documentation and the L&Ds which were irrelevant, while the advice from Mr Rahman of TaMS contained no comment on the DA itself;

• (e) The proposed development does not relate to public land; and

• (f) As the DA involves only consolidation and lease variation and no physical development, it will not have any environmental impact. No probable environmental impact can be assessed until such time the applicants make an application to physically develop the land; it is not a matter to be considered in relation to the present DA.

12. In response, Mr Clynes reiterated his submission that properly construed, section 120 required the decision maker to have regard to the indicative drawings and to bring to account the L&Ds. When the DA is properly considered and understood in the context of the indicative drawings for the purpose of ascertaining what the "development proposal" is, the proposal is plainly unsuited to the land for the reasons given by Ms Chapman.
13. He also relied on Ms Chapman's evidence in relation to consideration of the representations received and entity advice. However he did not dispute Mr Erskine's submissions in relation to subsections 120 (a)((e) and (f).

1. Having already concluded that the indicative drawings may be taken into account by the respondent when considering the development proposal and that the L&Ds must be considered, we cannot accept Mr Erskine's submissions that they are irrelevant to considering the provisions of subsections 120 (c) and (d).
2. However, regarding the "suitability" of the land, we do not have any useful evidence or submissions as to what is meant by "suitability" nor can we find any relevant authority to guide us. It may well be intended to refer to aspects of geophysical suitability (such as soil type, water table etc) or to environmental suitability (liability to flooding, or presence of endangered species, or soil contamination etc) or to social suitability (amenity of neighbouring land users, traffic and safety etc.). It is arguable that the subject land is suitable for multi unit housing because it is close to many other multi unit developments, but that may not be sufficient to deem it "suitable" in every circumstance. We agree with Mr Erskine that its "suitability" can only be usefully assessed when a firm development proposal is submitted for approval.
3. We disagree with Mr Erskine's proposition that because the proposal does not involve any physical development it cannot have any environmental impact, which cannot be assessed until such a development application is made. Subsection 120(f) refers to "probable impacts including the nature, extent and significance of probable environmental impacts" which clearly indicates that "impacts" other than environmental impacts are envisaged. These might include social impacts and we are satisfied that regardless of the accuracy or otherwise of the indicative drawings in representing what will ultimately be proposed, any multi unit development is likely to have adverse impacts on the amenity of neighbours in the precinct, of the kinds identified by Mr Harris.
4. As to entity advice, we accept Ms Chapman's view and Mr Clynes' submission that section 149 does not limit the entities from whom advice is sought to those required to be consulted by section 148. As the "developer" of the KFA, the LDA has an on-going responsibility to ensure that development is in accordance with relevant lease and development conditions and, in our opinion, was entitled to rely on the proposal to include multi unit housing in the lease purpose clause and the indicative drawings to advise that it did not support the proposal.
5. In relation to consideration of representations received, the objectors to both the original DA and the Reconsideration Application were entitled to have regard to the application to include multi unit housing in the lease purpose clause, and to the indicative drawings, in formulating their objections to the proposal, and the respondent had a duty to consider those representations.
6. We conclude that on the basis of its consideration of the matters listed in section 120 alone, the respondent had reasonable grounds to refuse the application under review.

Issue 19: Whether public policy and public interest considerations are relevant to deciding the application

1. In its original and its amended statements of Facts and Contentions, the respondent indicated its intention to reply on planning policies and principles and public interest considerations, as well as the provisions of the Territory Plan, in opposing approval of the DA, but in its closing submissions, it withdrew that intention without explanation. Although the issue remain open as to whether there are matters of policy and public interest that would militate against approval of the application under review, in the absence of any reliance on this issue by the respondent, we will not consider it further.

1. It will be evident from the conclusions we have reached on the many issues that arose in this case that we generally support the position taken by the respondent on the statutory interpretation of the various provisions of the Planning Act and the Territory Plan. Our task had been made difficult by the inadequate drafting of various provisions of the repealed Act, the Planning Act, and the Territory Plan, in particular those relating to the terms "lease and development conditions", "lease conditions" and "development conditions" all of which are defined in ways that conflict with one another, and the absence of any definition of "agreement collateral to a lease". We believe that the respondent should seek to clarify the meaning of these terms by making suitable amendments to the Territory Plan, and at the same time clarify the identification of the various precincts within the Kingston Foreshore Area.

• The planning intent of the First Edition estate was for single houses only, to be constructed in accordance with specific, publicly available conditions and guidelines contained in the lease and development conditions for the subject land;

• Extensive information to that effect, both on CD and in writing, was available to potential purchasers of blocks in the estate both prior to and during the auction of the subject land;

• The applicants knew, or ought to have known that the land was subject to lease and development conditions that constrained the uses that might be made of the blocks when they bought them;

• An important but largely unstated consideration was that, if the consolidation of the two blocks was allowed, the combined block would receive a new block identifier, and that would mean that there were no longer any lease and development conditions applying to the subject land, as lease and development conditions are block and section specific;

• The confining of the application to consolidation of the blocks and to variation of the purpose clause of the new lease, without providing specific details of what was intended to be built, was intended to avoid the restrictions that would be imposed by the applicable lease and development conditions;

• The respondent was entitled to seek additional information about the proposal and, having been provided with the indicative drawings and associated documents, was entitled to have regard to them in reaching its decision on the Reconsideration Application;

• The proposal does not comply with the provisions of the lease and development conditions nor with their intent and is therefore inconsistent with the Territory Plan;

• In addition to the lease and development conditions, the respondent was obliged to have regard to the provisions of s 120 of the Planning Act, some of which militate against approval of the application.

3. We conclude that the decision under review should be confirmed.

APPLICANT: Nicholas Lourandos & Nikolas Yiannakopoulos

TRIBUNAL MEMBER/S: Dr D. McMichael, Senior Member

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] Hereafter we will use "L&Ds" for the particular documents, including the Design

Guidelines, relating to the subject land, but "lease and development conditions" when

[2] The expiry date for section 446A is 31 March 2013 according to the Amendment

History in the Planning Act.

[3] The numbering of the paragraphs and subparagraphs in the Act changed from that used