Supreme Court of the ACT|1996-03-29|Before: Miles CJ

Lucian Nowicki v Brian Martyn and Richard Johnston [1996] ACTSC 17 (29 March 1996)

LUCIAN NOWICKI v. BRIAN MARTYN AND RICHARD JOHNSTON

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Building- construction - Territory Plan - Residential Design and Siting Code - whether Land and Planning Appeals Board bound to approve development application which complies with performance measures - provision in Territory Plan and Code for further evidence of performance beyond compliance with performance measures.

Appeal - appeal from Land and Planning Appeals Board - appeal restricted to questions of law - whether unreasonable finding is error of law - need to avoid treating questions of fact as questions of law - constitution and functions of Appeals Board - informality of procedure - expectation of party that case will not be treated as out of the ordinary - need for procedural fairness - need to advise party when Appeals Board minded to treat case as out of the ordinary - requirement to give reasons for decision - need to identify unusual aspects which led Appeals Board to treat case as out of the ordinary.

Supreme Court Act 1933

Magistrates Court Act 1930

Interim Planning Act 1990

Written Statement - The Territory Plan published and printed by

Byfield and Another v. Daly and Others (unreported, 1 December 1995, Supreme Court of the ACT)

Minister for Aboriginal Affairs and Another v. Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24

Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321

Tesoriero v. Leichhardt Municipal Council (1983) 51 LGRA 46

Kioa and Others v. West and Another [1985] HCA 81; (1985) 159 CLR 550

Haoucher v. Minister of State for Immigration and Ethnic Affairs (1990) 169

Dornan and Others v. Riordan and Others (1990) 24 FCR 564 at 573

The Commonwealth of Australia v. Pharmacy Guild of Australia and Another

On Appeal from the Land and Planning Appeals Board in proceedings AA104/94

Solicitors for the appellant : Pamela Coward and Associates

First Respondent, Mr. B. Martyn, appeared in person

THE COURT ORDERS THAT:

The decision of the Appeals Board of 29 March 1995 be set aside

and the matter be remitted to the Appeals Board to be heard and

further decided by the Appeals Board in the light of any further

submissions or evidence or both presented by or on behalf of the

appellant in response to paras.(c) and (d) of the reasons for

decision of the Appeals Board of that date.

MILES CJ This is an appeal under s.282ZI of the Land (Planning and Environment) Act 1991 (the Land Act) from a decision of the Land and Planning Appeals Board (the Appeals Board) established under s.282B of the Land Act. According to s.282ZI, the appeal lies only on a question of law. The appellant claims that the Appeals Board made several errors of law in its decision bearing date 29 March 1995 and notified to the parties on 31 March 1995.

2. The Appeals Board had before it an application for review of a decision of the primary decision maker, Mr. Richard Johnston, acting as delegate of the Australian Capital Territory Planning Authority (the Planning Authority) under s.40 of the Land Act.

3. The application for review was made against the following background. On 6 July 1994 the present appellant, Mr. Lucian Nowicki, the lessee of land being Block 17 Section 61 Turner, otherwise identified as 16 Towns Crescent, Turner, applied to the Planning Authority for approval of the construction of a second dwelling on the land. Mr. Nowicki authorised Mr. V.J. Gakhar to be the new applicant and to act on his behalf. Nothing appears to turn on this latter aspect.

4. The second dwelling proposed to be constructed was a three bedroom house with, in lay terms, an upper level and a lower level. The upper level was to be like an attic contained wholly within the roof. For the purpose of the application for approval the proposed building was regarded as a single storey building. The roof itself had a pitch of 36 degrees. In plans submitted with the application the building was shown to measure 11.2 metres by 10.7 metres. The maximum wall height proposed was to be 2.8 metres from ground level except for the north wall which was to be 7 metres. The maximum height of the roof was to be 7.5 metres from ground level. Those measurements lay within the maximum prescribed by the Territory Plan, to be discussed.

5. The application for approval was publicly notified and due objection was made by the present respondent, Mr. Brian Martyn, the lessee of Block 3 Section 61 Turner. Mr. Martyn lives in a single storey dwelling house on that land which adjoins the land in question on the eastern side. Mr. Martyn's objections included the following:

. The proposed building was three metres from the boundary fence

and likely to impinge upon his privacy.

. The proximity of the proposed building was likely to lead to

over-looking on Mr. Martyn's property.

. Two storey buildings are not in keeping with the single storey

dwellings which predominate in the area.

6. Pursuant to s.245 of the Land Act, the Planning Authority's delegate made a decision to approve the application. That approval was subject to certain conditions, including the provision of a 1.8 metres high lapped fence to be provided on the eastern or rear boundary adjoining Mr. Martyn's property. The delegate remarked in his reasons that "the proposed dwelling, although a steep pitched roof, was not considered to be unreasonably obtrusive or discordant with other building forms in the locality".

7. Mr. Martyn applied to the Appeals Board for review of the decision, pursuant to s.275 and Division 4 of Part VIA of the Land Act, relying on those same grounds as he had put forward previously to the delegate. The Appeals Board determined pursuant to s.282ZG of the Land Act that the decision under review be set aside, and that the decision of the Appeals Board be substituted, namely that the application for development be refused.

8. The present application for review by this Court seeks to reinstate the decision of the delegate to approve the development proposal subject to the conditions already mentioned.

9. The issues to be determined in this case revolve around the provisions of the Territory Plan.

10. The Territory Plan is established by s.13 of the Land Act. Its object as described in sub-s.7(1) is to ensure that the planning and development of the Territory provides the people of the Territory with an attractive, safe and efficient environment in which to live, work and have their recreation. Pursuant to para.7(2)(a), the Territory Plan shall set out the planning principles and policies for giving effect to its object. Sub-s.7(3) provides as follows:

"For the purpose of giving effect to the object of the Plan

and the principles and policies referred to in subsection (2),

the Plan may -

(a) set out specific objectives and policies;

(b) specify purposes for which land may be used;

(c) for the purposes of Part VI, specify -

(i) controlled activities and authorities that are concurring

authorities in relation to each controlled activity so

specified; and

(ii) circumstances in which persons are not entitled to apply

for the review of decisions referred to in that Part;

(d) incorporate a register of heritage places known as the

Heritage Places Register;

(e) identify land for the purposes of Subdivision D of Division 3

of this Part, specifying in addition the principles and policies

for its development;

(f) for the purposes of Division 5 of Part V - identify an area

of land as public land and reserve it for a purpose specified in

that Part;

(g) provide for such other matters as are relevant to -

(i) the exercise; or

(ii) the administrative review of the exercise;

of the powers of the Territory, the Executive or a Territory

authority under a Territory law; and

(h) provide for such matters as are otherwise necessary or

convenient."

11. Sub-section 8(1) provides that, subject to transitional provisions, "the Territory, the Executive, a Minister or a Territory authority shall not do any act, or approve the doing of any act, that is inconsistent with the Plan". "Territory authority" is defined by s.4 as a body established by or under an Act. This Court, established by the Supreme Court Act 1933, and the Magistrates Court, established by the Magistrates Court Act 1930, would appear to be Territory authorities.

12. How are the people of the Territory to have access to the Territory Plan which is to provide them with an attractive, safe and efficient environment? Section 13 of the Land Act provides that the plan established under Part 3 of the Interim Planning Act 1990, being the Plan in effect under that Act immediately before the commencement of the section, continues as the Territory Plan and may be varied in accordance with Part 2 Division 3 of the Land Act. Provision is made in Part 2 Division 3 of the Land Act for variation of the Territory Plan and similar matters and for publication of the variation in the Australian Capital Territory Gazette. Comprehensive variation appears to have been made by publication in the Australian Capital Territory Gazette of 14 September 1993 (No. 5187 of 1993).

13. Various references to the Territory Plan were made by the delegate and by the Appeals Board in their respective reasons for decision. Several extracts from the Territory Plan were handed up in the course of the application for review made to this Court. For the purpose of this judgment I have had recourse to a looseleaf copy of Written Statement - The Territory Plan published and printed by authority of the ACT Government Printer. Copyright is claimed on behalf of the Australian Capital Territory. The copy is kept in the library of the Court.

14. In general, the provisions of the Territory Plan operate like a form of delegated legislation and have the express effect given by sub-s.8(1) of the Land Act in that the persons and bodies named in the subsection are prohibited from doing anything or allowing anything to be done which is inconsistent with the Territory Plan. (There does not appear to be any such prohibition directed against members of the public generally.) In particular, no Territory authority may give approval to any application which, if granted, would permit a contravention of the Plan to take place. Thus this Court appears to be enjoined from determining any matter in any way which would compel or permit conduct inconsistent with the Plan. The effect of conflict between the Plan and another law of the Territory appears not to need determination in the present case.

15. Part B of the Plan is entitled "Land Use Policies". Under heading "BO - General" appears the following:

"Preamble

The preamble is printed in italics and contained within a box at

the beginning of each Land Use Policy. It describes in general

terms the content and background of the policy statement. Its

purpose is to give a brief overview and explanation, however it

does not form part of the legal policy content of the Plan.

Objectives

The objectives are a formal statement of the planning aims sought

by the Land Use Policy.

Controls

The controls are the specific policy provisions of the land use

policy statement. The controls identify the purposes for which

land may be used as well as other planning criteria which will

apply to development proposals located in the relevant land use

policy area.

A number of Land Use Policy Statements contain controls which are

referred to as "Performance Controls". These consist of

statements of "objectives" together with associated "performance

measures". The performance measures are values which are

considered to satisfy the relevant objective so that generally no

further evidence of performance is required. Proposals which do

not meet relevant performance measures may still be considered in

terms of whether they meet the related objective. However the

associated applications are subject to the public notification

and third party appeal provisions set out in Part VI of the Land

Act. Applications which meet all relevant performance measures

may be exempt from the public notification and third party appeal

provisions of that Part (see below)."

16. Pausing there, Part A of the Plan may be seen as setting out the general planning principles and policies and Part B as containing specific objectives and policies for giving effect to the planning principles and policies set out in Part A.

17. Each land use policy (or land use policy statement - the terms appear to be interchangeable) as set out in Part B contains three parts. They are a preamble, a statement of objectives and provision for controls. The preamble is intended to be of assistance in understanding the objectives and controls but is not intended to have any legally binding effect. In my view, the contents of any preamble in Part B are to be ignored for the purpose of determining the legal effect of any of the objectives or controls. The preamble is not to be relied upon as an extrinsic aid to interpretation under s.11B of the Interpretation Act 1967 because that Act does not apply to delegated legislation: s.6 Interpretation Act 1967, and see Act No. 22 of 1989. The objectives and controls of each land use policy statement, however, do, in my view, form part of the legally effective Territory Plan.

18. Under heading "B1 - Residential Land Use Policies", appears the following.

"1. OBJECTIVES

The objectives of the Residential Land Use Policies are:

(a) to provide opportunities for efficient, affordable, and

sustainable residential development which creates a range of

housing opportunities

(b) to provide for a variety of housing types throughout

Canberra which will enable residents to find accommodation

suitable to their needs and stage in the life cycle

(c) to provide the opportunity for increased residential

densities to help consolidate the urban area and better

utilise the existing social and physical infrastructure

(d) to encourage residential development that is

cost-effective in infrastructure provision and use

(e) to promote energy conservation by:

- encouraging residential development which is designed

for energy efficiency and

- allowing greater housing densities close to

employment centres and public transport routes

(f) to ensure protection of significant streetscapes

(g) to ensure that the scale and character of development is

compatible with the surrounding area and does not

unacceptably affect the amenity of nearby residents

(h) to allow certain non-residential uses which are

compatible with the surrounding residential area

(i) to ensure that traffic and parking generated by

development does not unacceptably affect the safe and

efficient functioning of roads or cause an unacceptable

nuisance to residents."

19. It may be noted here that Objective 1(g) is of particular importance in the present application.

20. It is not necessary to set out all the matters appearing under the ensuing heading "B1 - Controls". They include the following:

"2.2 Height of Buildings

Except where provided for under section 4 - Area Specific

Policies, the maximum height of buildings shall be two storeys.

An attic which is not a storey, and a basement which is not a

storey, may also be permitted.

2.3 External Design and Siting

Except where specifically provided for in Area Specific Policies

or development conditions, the external design and siting of

buildings shall be in accordance with the relevant Design and

Siting Code set out at Appendix III.

2.4 Fencing

Fencing shall not be erected in front of the building line

except where provided for in planning guidelines or development

conditions."

21. Appendix 111 is the Residential Design and Siting Code. It includes as Appendix 111.2 the Residential Design and Siting Code for Multi-Dwelling Developments in the ACT (the Code). For present purposes it may be observed that the Code provides for a maximum height of walls of 7.5 metres and minimum setback from side and rear boundaries of 3 metres and that the appellant's application conformed with these requirements of the Code.

22. The introduction to the Code contains the following.

"The Code is in the form of a series of "Performance Controls"

consisting of statements of "objectives" and "performance

criteria" together with associated "performance measures". An

approval may not be granted to a proposal which is inconsistent

with the objectives and performance criteria stated in a relevant

Performance Control. However, the performance measures are

considered to satisfy the objectives and relevant performance

criteria in most cases so that normally no further evidence of

performance is required. Proposals which do not meet the

performance measures may still be considered in terms of whether

they meet the relevant objectives and performance criteria."

23. The Performance Controls for the purposes of the present case are set out in detail in the Code. The following extracts are of relevance:

01.1 To provide an appropriate residential scale within a locality.

P1.1 Buildings to be limited in height The following will be

to ensure compatibility with normally considered to

adjacent development meet the Objectives and

Performance Criteria:

D1.1 Buildings not exceeding

two storeys in height.

(Note that attics and

basements as defined may

be permitted

additionally.)

D1.2 Maximum height of walls:

7.5 metres

3 - BUILDINGS IN RELATION TO SIDE AND REAR BOUNDARIES

Objectives

03.1 To site buildings to meet projected user requirements for

03.2 To site and design buildings to promote energy efficiency and

03.3 To ensure scale, height and length of a building and walls

relative to side and rear boundaries are of appropriate

residential character.

Performance Criteria Performance Measures

P3.1 The privacy of dwellings and The following will be

private outdoor spaces normally considered to

to be protected. to meet the Objectives

and Performance Criteria:

P3.2 Dwellings to be sited to D3.1 Minimum Setbacks

enable their northern facades from Side and Rear

to receive adequate Boundaries

sunshine in winter. A. Lower floor level

(LFL):

Setback all buildings

3 metres

B. Upper floor level

(UFL):

3 metres

ensure good sunlight access

to their main private

open space.

minimise overshadowing of

northern facades of adjacent

dwellings and private

outdoor spaces.

.....

Building to the Boundary

D3.4 Height of Walls

Height of walls where

permitted on a side or rear

boundary (other than party

walls or paired walls) not

to exceed:

average 3 metres and

maximum 4 metres

Maximum height of walls

otherwise: 7.5 metres

24. There is also Appendix 1, headed "Matters for Consideration", which begins as follows:

"1.1 Although the principles and policies set out in the Plan

extensively limit the degree of discretion which may be exercised

in relation to development proposals, compliance with the

relevant principles and policies does not imply automatic or

unconditional approval. In addition to the relevant principles

and policies, consideration may be given, under section

7(3)(g)(i) of the Land Act to any of the following matters which

are of relevance to the proposal:

(a) any significant effect which the Authority considers the

use or development may have on the environment

(b) orderly planning of the area

(c) effect on the amenity of surrounding land uses,

including the impact on air quality, the level of noise

generated, the amount of light or shading, and the level of

wind turbulence generated

.....

(y) any other specific matters for consideration referred to

in relevant parts of the Plan.

1.2 Under special circumstances, the Authority may also

consider:

(a) any significant social and economic effects of the use

or development for which the application is made.

(b) any other relevant matter."

25. Appendix 1 appears to be an exercise in pursuance of para.7(3) of the Land Act which provides, in part, that the Territory Plan may "provide for such matters as are necessary or convenient" and, in my view, should be regarded as part of the Territory Plan with whatever legal effect flows from that.

26. I make some general observations by way of summary of the foregoing provisions of the Act and the Territory Plan.

27. It may be observed that the provisions of the Plan relating to "B1 - Residential Land Use Policies", are broadly in accordance with the provisions of "BO - General" of the Residential Land Use Policies. The objectives are expressed as part of a formal statement of planning aims sought by those Policies. They include Objective B1(g), which is directed towards ensuring that the scale and character of development is compatible with the surrounding area and does not unacceptably affect the amenity of nearby residents. The controls are "specific policy provisions" which identify planning criteria, including land use. The controls include specific requirements relating to height of buildings, which are set out comprehensively in para.2.2 of Part B1. They also include requirements as to design and siting.

28. The Code itself is divided into objectives, performance criteria and performance measures. Performance measures are stated in the introduction to the Code to be sufficient to satisfy the objectives and relevant performance criteria (presumably of the Code only) in most cases, and that normally an applicant does not have to provide evidence beyond compliance with the performance measures. Compliance with performance measures will be "normally considered to meet the objectives and performance criteria" relevant to those performance measures. Finally, and apart from the objectives and controls of the various land use policies, consideration may be given by the decision maker to the matters for consideration set out in appendix 1. What is the question of law?

29. Because the appeal must be restricted to questions of law, the notice of appeal identifies or purports to identify the questions of law which the appellant wishes to raise. They are as follows:

"(a) Whether the Appeals Board misdirected itself as

to the purpose, meaning and effect of the provisions of the

Territory Plan.

(b) Whether the Board failed to make findings on material

questions of fact.

(c) Whether the Board took into account considerations irrelevant

to its task of assessing compliance of the proposed development

with the Territory Plan for the purpose of design and siting

approval.

(d) Whether the Board failed to take into account considerations

relevant to its task of assessing compliance of the proposed

development with the Territory Plan for the purpose design and

siting approval.

(e) Whether the decision of the Board is unreasonable."

30. It is to be observed that the questions of law as identified are in the broadest of terms and appear to cover most questions of law that appellants might wish to raise against any decision of the Appeals Board acting within power on a review of a decision under Division 4 of Part VIA of the Land Act. It is also to be observed that the questions of law so stated are identical with those filed in some other appeals to this Court from decisions of the Appeals Board. Practitioners should not assume that the questions so stated should be used as a precedent suitable for use in all cases. The particular questions of law raised in appeals are bound to differ according to the circumstances of the particular case and notices of appeal should be drawn so that they are appropriate to the case. In any event, question (e) as framed in the notice of appeal, namely whether the decision of the Appeals Board is unreasonable, is not a question of law but a question of fact. That question may not be raised in the appeal. However, the argument as presented by Mr. Arthur on behalf of the appellant was that the Appeals Board's decision to refuse the application of the appellant was one which was so unreasonable that no tribunal could have arrived at it on the material before it. Whether that argument raises a question of law will be discussed below.

31. The Appeals Board's decision is recorded as follows:

"FINDINGS

Upon reading all the submissions, inspecting the subject land

and hearing evidence from the parties, the Board determines that

the decision under review is set aside and the following decision

substituted:

The Application is refused."

32. As Mr. Arthur has submitted, the heading to the above is not appropriate, since what follows is the determination or decision of the Appeals Board and not its findings. The findings of the Appeals Board are included under the heading "Statement of Reasons" in the following terms:

"The reasons for the above finding including those on

material questions of fact are:

(a) the proposed dual occupancy development would be included

within the meaning of 'building' as defined in section 3 of the

Buildings (Design and Siting) Act 1964 would constitute

'development of land involving any aspect of external design and

siting' within the meaning of that section and therefore be

subject to section 6 of that Act and the provisions of Part VI of

the Land (Planning and Environment) Act 1991 as required.

(b) the decision on the proposed dwelling was subject to the

provisions of the Territory Plan, in particular Part B1 -

Residential Land Use Policies and Appendix III.2 - Residential

Design and Siting Code for multi-Unit Dwellings in the ACT.

Other General Policies of the Plan including Part A2 Clause 3

(Principles and Policies of Residential Areas) and the Plan's

Implementation Policies (see Part A3 and Appendix I) raise

additional matters for consideration.

(c) while acknowledging that the Territory Plan provided

opportunities for increased residential densities the Board was

particularly concerned that any proposed development should be of

a scale and character that was compatible with the surrounding

area and does not affect the amenity of nearby residents (Part B1

Objective 1(g). The Board considered that the proposed

development, with its steep roof pitch and bulk, was not of a

scale or character that was compatible with the adjacent or

surrounding dwellings.

(d) the Board noted that the development as initially proposed

has been modified to reduce its impact on the privacy of

adjoining dwellings and outdoor open spaces. The Board found,

however, that while overshadowing of the building on Block 16

would not occur, sufficient overshadowing of the property would

occur to detrimentally affect the occupants' private outdoor

space. A single storey dwelling was unlikely to have the same

effect."

33. No issue is taken in the appeal as to paras.(a) and (b), but Mr. Arthur submitted that paras.(c) and (d) indicate errors of law on the part of the Appeals Board. Before going to the particular submission, it may be desirable to say something in general terms about how this Court should approach appeals under s.282Z1 of the Land Act.

34. In Byfield and Another v. Daly and Others (unreported, 1 December 1995, Supreme Court of the ACT), the first and only other appeal decided under s282Z1, Higgins J held that the formation of a judgment as to whether the impact of scale and size of a proposed development on a neighbourhood is acceptable or unacceptable, is a matter of judgment and does not involve a question of law unless one or other of those conclusions could not reasonably have followed from the established facts. To decide one way rather than the other, when either conclusion is reasonably open, is not an error of law.

35. I agree with respect in general terms with his Honour's observations, although I would leave to another day the question whether it is an error of law on the part of the Appeals Board to arrive at a conclusion which the Supreme Court considers not reasonably open on the established facts. No doubt there are tribunals from whom an appeal lies only on a question of law and whose decisions are approached by the appellate court in such a way. The Administrative Appeals Tribunal (Commonwealth) is an example, but the authorities are not all easily reconcilable. An authoritative statement was made by Mason J, as he then was, in Minister for Aboriginal Affairs and Another v. Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24, where his Honour said at 41 that the Court would not set aside the decision of the Administrative Appeals Tribunal on the ground that it had failed to give adequate weight to a particular factor or had given excessive weight to another except on the preferred ground that the decision was "manifestly unreasonable".

36. In Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321, Mason CJ said at 356:

"Thus, at common law, according to the Australian

authorities, want of logic is not synonymous with error of law.

So long as there is some basis for an inference - in other words,

the particular inference is reasonably open - even if that

inference appears to have been drawn as a result of illogical

reasoning, there is no place for judicial review because no

error of law has taken place."

37. However, in my respectful view, much depends on the nature of the tribunal, its functions and powers, as seen in the context of the act which creates the tribunal. The function of the Appeals Board was to determine by way of review the merits or otherwise of an application for development of residential land by construction of a second dwelling on that land. The procedure to be followed in making that determination was entirely within the discretion of the Appeals Board, subject to the Land Act itself, the regulations and any other enactment. Subject also to s.282ZC, which required the Board to ensure that every party was given a reasonable opportunity to present a case and to inspect documents to which the Board might have regard, the Board was required to conduct its proceedings with as little formality and technicality and as much expedition as the Act, other enactments and a proper consideration of the case permitted: s.282X

38. The Appeals Board was not bound by the rules of evidence. It had no power to administer an oath (unlike the Administrative Appeals Tribunal). Under s.282ZG it was required to endeavour to give its decision within five days after the completion of the hearing and obliged (then or as soon as practicable thereafter) to give reasons in writing including factual findings and a reference to the evidence or other material on which those findings were based. No doubt it was generally under a duty to render procedural fairness to persons likely to be affected by its decision, but it was not bound to call witnesses or require parties to call witnesses. It was, in my view, not bound to distinguish in any formal way between material before it in the nature of evidence and material in the nature of argument or submissions. It was not bound to record or to have a transcript made of oral evidence or submissions.

39. Having regard to the way in which the Appeals Board is constituted, the functions it has to carry out and the directive that it conducts its proceedings with maximum expedition and informality, I doubt whether it was intended that the Land Act give this Court the power to set aside a decision of the Appeals Board on the ground that the decision was not reasonably open. The same attitude, I note, has been taken by the New South Wales Court of Appeal with regard to appeals on a question of law from an assessor of the Land and Environment Court: Tesoriero v. Leichhardt Municipal Council (1983) 51 LGRA 46.

40. Generally, appellants are to be discouraged from trying to formulate questions of fact as if they were questions of law. Furthermore, the Court should not examine decisions of the Appeals Board as if they were the judgment of another court or written by lawyers. The members of the Appeals Board are part-time (s.282C) and are not obliged to have qualifications or experience as lawyers. The whole approach of the Act is to avoid legal technicalities.

41. The substantive questions of law and the real issues to be decided on the appeal to this Court are set out in the grounds of appeal appearing in the notice of appeal filed. Each ground was argued by Mr. Arthur on the appellant's behalf and I shall deal with each in turn.

Ground (a) The Board misdirected itself as to the purpose and effect of Objective 1(g) of Part B1 of the Plan in that it treated it as a criterion to be met independently of other criteria and not as a statement of planning aims.

42. First, it has to be said that a reading of the Appeals Board's decision does not lead to a conclusion that it approached Objective B1(g) in the way alleged. Secondly, and in any event, in my view, the Appeals Board was not only entitled to take the content of relevant objectives into consideration, but it was entirely appropriate for it to do so. The Plan taken as a whole, and considering in particular the provisions of the Code, well justified the Appeals Board in considering the application to go further than considering mere compliance with the performance measures. Whether or not the performance measures were satisfied, if the Appeals Board considered that there was some other relevant factor (such as one or other of the objectives) to be taken into account which stood in the way of approving the application, it was justified in considering that factor and deciding accordingly. This aspect is discussed more fully a little later in these reasons.

Ground (b) The Board misdirected itself as to the meaning and effect of Objective 1(g).

43. It is sufficient to deal with this ground by saying that a reading of the Appeals Board's decision does not justify the conclusion that it approached its task in any of the ways alleged. It is desirable to say further that even if the Appeals Board had done so, it is highly doubtful that it would have committed an error of law at all or an error of law which vitiated its decision.

Ground (c) Failure to make findings of fact on which the decision of the Board depended

44. This ground raises several factual matters on which, so it is submitted, the Appeals Board was bound to make findings as an intermediate step towards its decision to refuse the application. As to those matters numbered (ii) and (v) of Ground (c), it is sufficient to say only that the factual matters referred to were not necessary to the Appeals Board's decision. Furthermore, and in any event, the Appeals Board's decision is consistent with factual findings in relation to the matters raised and such findings were open to it.

45. The other necessary but absent findings, which it is alleged that the Appeals Board failed to make and which were said to be necessary to its decision, were, first, that the proposed development did not comply with relevant performance measures and, secondly, that the proposed development was of an abnormal nature so as to render the assessment of approval in accordance with relevant performance measures inappropriate. It is true that the Appeals Board made no express findings to either effect. Having regard to the evidentiary material before the Appeals Board, however, and taking its decision as a whole, I think it implicit that the Appeals Board was of the view that the proposed development did in fact comply with all relevant performance measures. All the material before the Appeals Board pointed to that conclusion. The delegate whose decision was under review came to that conclusion.

46. The question which then arises is whether the Appeals Board was, in accordance with its finding that the performance measures were satisfied, bound to approve the application. Mr. Arthur argued that if there was a finding of compliance with the performance measures, then the Appeals Board was not entitled to refuse the application without a further finding that the proposed development was of an abnormal nature. It was, according to the submission, because there was no finding to the latter effect, that the Appeals Board's decision was wrong in law.

47. I do not think that there is any requirement in the Territory Plan for the Appeals Board to make a precise finding that the development was "of an abnormal nature" for the Appeals Board to lawfully refuse an application in respect of which it found all performance measures to have been satisfied. The Plan is couched in more general terms. The Plan in its general provisions as to land use policies states that where there is compliance with performance measures "generally" no further evidence of performance is required. The introduction to the Code states that performance measures satisfy the objectives and relevant performance criteria "in most cases" so that "normally no further evidence of performance is required". The Code is described as sufficient "normally to meet the objectives and performance criteria". The Plan and the Code which is part of the Plan clearly envisage situations where compliance with performance standards may not be sufficient for approval of the application, although these situations will not arise in most cases. Put another way (but still in the terminology of the Plan and the Code), an applicant who complies with the performance standards may expect, "normally" or "generally" that the approval of the application will follow. At the same time the applicant should also be aware that approval may not follow unless there is what the Code calls "further evidence of performance" beyond compliance with the performance measures.

48. I do not think that there is anything in the Act, Territory Plan or Code to require the decision maker to identify something of an abnormal nature in the proposed development before looking to see whether the objectives and any other performance criteria are satisfied. However, if the performance measures are satisfied, the Plan does require that there be something about the relevant circumstances surrounding the application which take it out of the category of most cases, so that there is justification for deciding to withhold approval which would otherwise generally or normally be granted upon satisfaction of the performance measures. This is not so much a matter of the Appeals Board applying a legal standard in order to decide what is normal or otherwise. But it is a matter of fairness to the applicant for approval. For if applicants are led to believe, as the Plan and the Code must lead them to believe, that compliance with performance measures will in most cases be sufficient compliance with the requirements of the Plan and the Code as a whole, fairness demands that an applicant knows when the Appeals Board is minded to treat a particular case as one different from most cases. Applicants are entitled in fairness to know further what it is that the Appeals Board thinks makes or might make the case different from most cases. Applicants are entitled to know this during the course of the hearing and should not have to wait until after the hearing is over and the Appeals Board gives its decision. Where compliance with the performance measures, which is normally or generally regarded as sufficient compliance with the objections and performance criteria, may not be sufficient compliance in the particular case, the applicant is entitled to be heard on the question and entitled to present "further evidence of performance" as the Plan itself provides. Failure on the part of the Appeals Board to inform an applicant prior to its decision that it might refuse the application despite compliance with the performance measures in the present application is, in my view, a failure to provide procedural fairness. The Appeals Board did not so inform the appellant. In that sense the Appeals Board erred in law: Kioa and Others v. West and Another [1985] HCA 81; (1985) 159 CLR 550, Haoucher v. Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648.

49. Furthermore, fairness to the appellant also required in the context of the Appeals Board's statutory obligation to give reasons and in the context of the nature of the Code that the Appeals Board in its reasons for decision advert to any circumstance which took the case out of the category of most cases and which justified making a decision that the objectives in the Plan and the objectives and performance criteria in the Code had not been satisfied despite compliance with the performance measures. Such an omission essentially deprived the appellant of knowing what it was that was responsible for the Appeals Board's ultimate decision. The omission deprived the appellant of the opportunity to test the legal validity of the decision by reference to error in the reasons. That omission, in my view, constituted non-compliance on the part of the Appeals Board with the requirement that it state its reasons. Given that a statement of reasons was a requirement of the exercise under statute of the decision-making power, the Appeals Board's omission constituted an error of law: see Dornan and Others v. Riordan and Others (1990) 24 FCR 564 at 573; The Commonwealth of Australia v. Pharmacy Guild of Australia and Another (1989) 91 ALR 65 at 88.

Ground (d) The Board took into account an irrelevant consideration being the Board's subjective opinion as to the compatibility of the scale and character of the proposed development with the surrounding area in the absence of any finding that the proposed development was of an abnormal nature so as to render its assessment for approval in accordance with the relevant performance measures inappropriate.

50. This ground has been dealt with sufficiently above under (c).

Ground (e) Failure of the Board to take into account relevant considerations.

51. This ground alleged that the Appeals Board had failed to take into account the consideration that the proposed building must have been "of an appropriate residential scale within its locality" because it complied with the performance measures. That part of the ground must be rejected for the reasons already stated. The ground also alleged that the Appeals Board failed to take into account the absence of objection on the part of the occupant of Block 16. That ground fails also. The Appeals Board's decision did not compel the conclusion that it failed to take that factor into account or that any failure to do so vitiates its decision.

Ground (f) The decision of the Board was unreasonable.

52. As stated above, this ground as stated does not raise a question of law and there is doubt whether it raises a question of law as argued, that is, on the footing that the decision was one which no reasonable tribunal could have made. Nevertheless, I shall deal with the submission on its merits. It was submitted that the Appeals Board's decision was one that no reasonable tribunal could have made because its effect is to preclude development on the subject site of anything but a single storey building and because it treated over-shadowing of Block 16 as constituting an unacceptable effect on the amenity of the occupant of Block 16. In my view, it cannot be said that the effect of the Appeals Board's decision was to preclude all development on the site by construction of a building "greater than a single storey". On the facts it was not shown that it was impossible to design a building of more than one storey which could have been so sited on the land that it complied with all provisions of the Plan. In any event, if it is impossible, in the light of the Board's decision, to develop the land by the construction of a building with more than a single storey, that in no way means that the Appeals Board's conclusion was one that no reasonable tribunal could have arrived at. Similarly, it cannot be said that the Appeals Board's view, if it was its view, that the over-shadowing of the outdoor space of Block 16 constituted an unacceptable effect on the amenity of the occupant of that block, was a view that no reasonable tribunal could have held. In any event, over-shadowing was only one of the factors that the Appeals Board took into consideration.

53. Mr. Martyn appeared in the appeal to this Court for himself. The Minister's delegate put in a submitting appearance only. With due respect to Mr. Arthur, who argued the case for the appellant with considerable sophistication, the Court did not have the benefit of that definition of the issues and exchange of argument on fact and law which competent legal representation for contending parties brings to the Court in a matter concerning issues of some importance and difficulty. The appeal arises out of proceedings in another tribunal which, in accordance with its charter, conducts itself with extraordinary informality. That informality makes a transcript of the proceedings less than useful for the purpose of an appeal.

54. It is not for this Court to speculate about what the Appeals Board might have considered about the case which took it out of the category of most cases and caused a decision to be given contrary to what the Plan and the Code say is generally given when there is compliance with performance measures. However, paragraphs (c) and (d) of the Appeals Board's Statement of Reasons do indicate that the Appeals Board considered that it was the scale and character of the proposed building and the consequent incompatibility with the surrounding area, together with the overshadowing of the open space on Block 16 that provided justification for refusal of the application despite the compliance otherwise with the Territory Plan and the Code, including the performance measures and criteria.

55. Reading those reasons liberally, as is appropriate, it emerges that those factors in the opinion of the Appeals Board did take the case out of the category of most cases where usually approval is granted upon compliance with the performance measures. The Appeals Board, in my view, was not incorrect in law in taking that approach. However, fairness required that the applicant be informed before the Appeals Board made its final determination that that was what the Appeals Board had in mind. If the applicant had been so informed he would have been afforded an opportunity to satisfy the requirement of "further evidence of performance" provided by the Code. The applicant was denied that opportunity. This Court should remit the matter to the Appeals Board so that the appellant may take the opportunity to respond to the Appeals Board's findings as expressed in paras. (c) and (d) of its Statement of Reasons. Those findings should be regarded as provisional findings only unless and until the appellant has been given that opportunity. I have not given consideration to s.284 of the Land Act which empowers the Court to excuse failures to comply with the Land Act in certain circumstances.

56. The order is: The decision of the Appeals Board of 29 March 1995 is set aside and the matter remitted to the Appeals Board to be heard and further decided by the Appeals Board in the light of any further submissions or evidence or both presented by or on behalf of the appellant in response to paras. (c) and (d) of the reasons for decision of the Appeals Board of that date.

57. Unless the parties wish to be heard, I order that each party pay his own costs.

Land (Planning and Environment) Act 1991

Interpretation Act 1967

Buildings (Design and Siting) Act 1964

Land (Planning and Environment) Act 1991

Interpretation Act 1967

Buildings (Design and Siting) Act 1964

Lucian Nowicki v Brian Martyn and Richard Johnston [1996] ACTSC 17

At a glance

Court

Decision date

Before

Source

Judgment (104 paragraphs)

Lucian Nowicki v Brian Martyn and Richard Johnston [1996] ACTSC 17 (29 March 1996)

Parties

Legislation Cited (12)

Cases Cited (7)