Supreme Court of the ACT|1998-08-27|Before: Higgins J

Manuka Business Association Inc., Cranley Nominees Pty Limited, Manuka Village Pty Limited and Hamib Pty Limited v The Australian Capital Territory Executive and Minister for The Environment, Land and Planning [1998] ACTSC 86 (27 August 1998)

MANUKA BUSINESS ASSOCIATION INC., CRANLEY NOMINEES PTY LIMITED, MANUKA VILLAGE PTY LIMITED and HAMIB PTY LIMITED v THE AUSTRALIAN CAPITAL TERRITORY EXECUTIVE and MINISTER FOR THE ENVIRONMENT, LAND AND PLANNING [1998] SCACT 86 (27 August 1998)

ADMINISTRATIVE LAW - judicial review legislation - "person aggrieved" - whether applicants considered decision contrary to law - whether applicants interests "adversely affected" - whether grievance suffered beyond that of ordinary members of the public - whether "special interest" - economic, environmental and social interests - whether interest beyond mere economic competition - Administrative Decisions (Judicial review) Act 1989 (ACT), s 3(4)(a)(1) and (iii) - Land (Planning and Environment) Act 1991 (ACT).

ADMINISTRATIVE LAW - judicial review legislation - whether decision contrary to law - meaning of "predominant use" - meaning of "associated with a car park structure".

Administrative Decisions (Judicial review) Act 1989 (ACT), s 5(1)(j) -Land (Planning and Environment) Act 1991 (ACT), s8 - the Territory Plan (ACT).

ADMINISTRATIVE LAW - judicial review legislation - whether decision contrary to law - whether plot ratio control breached - relevance of overall planning objectives - Administrative Decisions (Judicial review) Act 1989 (ACT), s 5(1)(j) -Land (Planning and Environment) Act 1991 (ACT), s8 - the Territory Plan (ACT).

ADMINISTRATIVE LAW - judicial review legislation - whether decision contrary to law - whether maximum height control breached - meaning of "storey" where commercial development - Administrative Decisions (Judicial review) Act 1989 (ACT), s 5(1)(j) -Land (Planning and Environment) Act 1991 (ACT), s8 - the Territory Plan (ACT).

ADMINISTRATIVE LAW - judicial review legislation - whether decision contrary to law - grant of Crown Lease - whether "direct grant" or tender - whether legislative procedures followed in call for tenders - Administrative Decisions (Judicial review) Act 1989 (ACT), s 5(1)(j) - Land (Planning and Environment) Act 1991 (ACT), ss8, 161(1),(4) and (5). - the Territory Plan (ACT).

ADMINISTRATIVE LAW - judicial review legislation - whether decision contrary to law - requirement for overall increase in car parking accessible to the public - meaning of "park" - insufficiency of proposed car parking - Administrative Decisions (Judicial review) Act 1989 (ACT), s 5(1)(j) -Land (Planning and Environment) Act 1991 (ACT), s8 - the Territory Plan (ACT).

Land (Planning and Environment) Act 1991 (ACT), ss8, 113, 114, 161(1)(d), 161(4) and (5)

North Coast Environment Council Inc. v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492, applied

Tasmanian Conservation Trust Inc. v Minister for Resources [1995] FCA 1035; (1995) 127 ALR 580, applied

Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50, considered

Australian Conservation Foundation Inc. v Commonwealth (1980) 146 CLR 493, applied

Ogle v Strickland (1987) 13 FCR 306, considered

Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning (1994) 122 FLR 269, considered

Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637, considered

Warringah Shire Council v Raffles (1979) 2 NSWLR 299, applied

AND: THE AUSTRALIAN CAPITAL TERRITORY EXECUTIVE

MINISTER FOR THE ENVIRONMENT, LAND AND PLANNING

1. The application for review of the decision of the first respondent is dismissed.

2. The application for review of the decision of the second respondent is upheld.

3. The parties are to be heard as to the form of relief appropriate in relation to the decision of the second respondent and as to costs.

0 This is an application filed 6 February 1998 pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) seeking judicial review of certain decisions of the respondents.

1 In relation to the first respondent at issue is a decision made on 20 November 1997 to grant to Manuka Plaza Nominees Pty Limited (Manuka Plaza) a Crown Lease over land known as Block 4 Section 41 Griffith (Section 41).

2 As against the second respondent, review is sought of a decision of 30 December 1997 to approve, subject to conditions, a development application, number 974713, relating to Section 41, submitted by Morris Consolidated Pty Limited (Morris Consolidated). Manuka Plaza was the nominee of Morris Consolidated and is a related company.

3 It is relevant, as there is objection to the standing of the applicants, to note their identity and connection with Section 41.

4 The first applicant, Manuka Business Association Inc. (MBA Inc.) is an incorporated association of landlords and tenants and others conducting business in the Manuka precinct. The second and third applicants, Cranley Nominees Pty Ltd (Cranley) and Manuka Village Pty Ltd (Manuka Village) are the majority owners of a shopping complex within the Manuka precinct known as "Manuka Village". The fourth applicant, Hamib Pty Ltd (Hamib) is the owner of another shopping complex nearer to Section 41 and known as "Manuka Court".

5 The development application proposes that a large commercial retail and residential complex be erected on Section 41. It would also provide for a large number of parking spaces. The development will increase the retail floor space available in Manuka by about 30%. There are intended to be parking spaces sufficient, it is proposed, to replace and augment existing public parking and to cater for any additional demand generated by the development itself and associated works.

6 The ADJR Act application alleges a number of respects in which the decisions challenged are contrary to law. That is, that the decisions involve questions of law that have been erroneously answered so as to vitiate the decisions. The actual process of decision making has not been impugned.

7 The grounds as amended at the hearing on 15 July 1998, are:

"1. The First and Second Decision and each of them are contrary to section 8 of the Land (Planning and Environment) Act 1991 ("Land Act") and therefore contrary to law. In particular, the Crown lease of the Block together with Development Approval Number 974713 permits Manuka Plaza Nominees Pty Limited to use and develop the Block in a manner that is inconsistent with the Territory Plan, in the following respects:

(a) Under the Territory Plan, the Block is in the "Precinct d1 - Car Parking" area of the Manuka Group Centre, which provides for car parking to be the predominant land use. The Approved Development Proposal is not predominantly a carpark with associated uses but is instead predominantly a commercial and residential development with associated carparking.

(b) The Approved Development Proposal breaches the maximum plot ratio control and the plot ratio objective specified in the relevant performance measures in the Territory Plan (paragraph 2.8 B2C Manuka Group Centre policy).

(c) The Approved Development Proposal breaches the maximum height control and the height objective specified in the relevant performance measures in the Territory Plan (paragraph 2.8 B2C Manuka Group Centre policy).

2. To the extent that the First Decision and the Second Decision or either of them involve

(a) a finding that the Approved Development Proposal complies with the relevant plot ratio objective in the Territory Plan, namely, "to ensure that development in group centres is of an appropriate scale comparable with surrounding development" (paragraph 2.8 B2C Manuka Group Centre policy); and, or in the alternative,

(b) a finding that the Approved Development Proposal satisfies the Area Specific Controls for Precinct `d1' - Car Parking

the exercise of each power was so unreasonable that no reasonable person could have so exercised that power.

2. The First Decision was not authorised by the enactment under which it was purported to be made, namely section 161 of the Land Act. In particular:

(a) The applicant for the Crown lease of the Block was Morris Consolidated Pty Limited rather than Manuka Plaza Nominees Pty Limited, to which the grant was made. Section 161(1)(d) of the Land Act only empowers the Executive to make a direct grant of a lease to the applicant.

(b) Section 161(4) of the Land Act prohibits the Executive from making a direct grant of a Crown Lease to an applicant otherwise than in accordance with criteria specified in an instrument made under section 161(5) of the Land Act. The First Respondent did not consider whether Manuka Plaza Nominees Pty Limited satisfied the criteria specified pursuant to section 161(5).

2. There was no evidence or other material to justify the making of the Second Decision in that:

(a) The Minister was required by Control 4.4 to be satisfied that the development will result in an overall increase in parking accessible to the public and there was no evidence or other material from which he could reasonably be satisfied that the matter was established; and, or in the alternative

(b) The Minister based the Second Decision on the existence of the fact that the development will result in an increase of at least 58 car parking spaces accessible to the public, and that fact did not exist.

2. The making of the Second Decision was an improper exercise of the power conferred by Section 230 Land (Planning and Environment) Act in that the Minister failed to take into account a relevant consideration being the possible future requirements for car parking generated by development within the `a1' - Retail Core Precinct and instead took into account an irrelevant consideration being that it was necessary only for this development to provide only spaces (approximately 60) to facilitate the development of commercial uses which address Palmerston lane."

8 The respondents have objected to the standing of the applicants. They contend that none of them are "persons aggrieved". In any event, they submit that none of the grounds asserted by the applicants provides cause to impugn the decisions or either of them.

9 It is clear that the Crown Lessee, Manuka Plaza, has an interest in the outcome of these proceedings as has Morris Consolidated, the developer. However, they have been advised of the proceedings and have taken legal advice. They are content that their interests are adequately represented by the current respondents.

10 It is common ground that each of the applicants, to have standing to complain of the decisions under review, must first satisfy the Court that they are "persons aggrieved" by the decisions, - see s5 and s6 Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act).

11 Section 3(4) of the ADJR Act offers an inclusive definition of a "person aggrieved".

"(a) a reference to a person aggrieved by a decision includes a reference-

(i) to a person whose interests are adversely affected by the decision;

(ii) in the case of a decision by way of the making of a report or recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and

(iii) in the case of a decision made under the Buildings (Design and Siting) Act 1964, the Land (Planning and Environment) Act 1991 or the Heritage Objects Act 1991 - to a person who considers the decision to be contrary to law;

(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be engaged in for the purpose of making a decision, or by a failure to make a decision, includes a reference to-

(i) a person whose interests are, or would be, adversely affected by the conduct or failure; and

(ii) in a case where the relevant decision would be a decision made under the Buildings (Design and Siting) Act 1964, the Land (Planning and Environment) Act 1991 or the Heritage Objects Act 1991-a person who considers the conduct or failure to be contrary to law; and

(b) a reference to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.

13 It will be noted that each of the decisions under challenge was purportedly made under the Land (Planning and Environment) Act 1991 (ACT) (L(P&E) Act). It follows that, if I am satisfied that each of the applicants "considers the decision to be contrary to law" then each such person is a "person aggrieved".

14 The amended application in terms makes such a complaint. Argument was addressed to it.

15 Mr Blackshaw, President of the first applicant, states in his affidavit of 29 May 1998 that his objection includes inconsistency with the Territory Plan (the Plan).

16 Mr Fitzroy, for Cranley, complains only on the ground of adverse impact on the remainder of the Manuka precinct. So also does Mr Hedley for Hamib.

17 However, that does not prevent me from concluding that each of the first, second and fourth applicants consider that the decisions under challenge are "contrary to law". Indeed, that conclusion follows from the submissions put on their behalf.

19 Even if sub-para.3(4)(a)(i) was to be applied it would be my view that standing has been established.

20 The applicants were asked to give particulars of the grounds upon which they relied to support the contention that their interests were adversely affected.

21 The first applicant relied on the fact that its members, being Manuka business owners or operators, were themselves persons whose interests are "adversely affected". The other applicants are directly so affected.

22 The adverse affects were identified as being upon "the amenity of the Manuka business and shopping areas, to the detriment of business in the Manuka regionÖ"

23 It is apparent that the interests affected are both environmental and financial.

24 A representative body does not, of course, have standing merely because its members do.

25 Reference may be made to cases such as North Coast Environment Council Inc. v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 and Tasmanian Conservation Trust Inc. v Minister for Resources [1995] FCA 1035; (1995) 127 ALR 580. In those cases Sackville J accorded standing to the applicants but not merely because they had submitted comments on the relevant environmental impact statements under the Environment Protection (Impact of Proposals) Act 1974 (Cth).

26 Lockhart J in Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50 found that an interest in the subject matter of the decision as well as incorporation with the objective of effecting that interest did not in itself confer standing. The Association, his Honour considered, had no greater interest in the issue than a like-minded individual in the community. It was a general policy issue.

27 What distinguished the Trust and the Council in the view of Sackville J and brought them within the guidelines adopted by the High Court in Australian Conservation Foundation Inc. v Commonwealth (1980) 146 CLR 493, was their relationship to the subject matter of the decisions in question. That relationship was such as would make the grievance suffered by them beyond that of ordinary members of the public.

28 I note that in Ogle v Strickland (1987) 13 FCR 306, two priests of the Catholic and Anglican faiths respectively were accorded standing to complain of a decision to permit importation of an allegedly blasphemous film. Sackville J in North Coast (supra) was less than enthusiastic in his acceptance of that decision. It was, however, a Full Court decision. His Honour asked, at 510:

"If an organised group regards the preservation of the environment in general, or of an area in particular, to be of profound cultural and spiritual significance, how does their standing to challenge decisions threatening the values to which they adhere, differ from the position of the applicants in Ogle v Strickland? And if the distinction between a vocational interest in a set of values and an interest based on a deeply held but non-vocational commitment to those same values is unsound, why should organisations genuinely committed to the preservation of the environment be denied standing to complain of (or to claim reasons for) decisions that offend their values?"

29 His Honour considered it unnecessary to answer those questions. However, at 512, he identified five principles relevant to the case before him. Those are effectively summarised in the following passage:

"It follows that, in order to show a special interest in the subject matter of the litigation North Coast cannot rely solely on its objects, its role as commentator in Sawmillers' EIS or any complaint made by it about possible non-compliance with the statutory procedures."

30 However, a "special interest" was discerned as arising out of a combination of the factors detailed by his Honour at 512-513. They may be summarised by saying that North Coast was the peak environmental protection organisation for the area in question and had been recognised as a bona fide and responsible body by the Commonwealth and State governments. That was evidenced by significant, though relatively modest, grants of money to it to support its activities. It had also been supported by the Commonwealth Government in conducting or co-ordinating relevant projects and conferences.

31 I consider that MBA Inc. does fit within the principles acknowledged by his Honour. That is not merely because it is representative of Manuka traders and building owners. Nor is it because MBA Inc. made submissions on behalf of its members commenting on the mandatory preliminary assessment made by the developer under s.113 of the L(P&E) Act. It is because, in addition, it has a particular interest in the development of the Manuka precinct not only from an economic perspective but also from an environmental and social one. Also, for reasons which I will specify below, each of its members would have a real interest in the subject matter of the decisions.

32 I now consider the standing of Cranley, Manuka Village and Hamib. They each express their opposition to the development decisions in economic terms.

33 In Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning (1994) 122 FLR 269, I considered a claim that a well-founded fear of increased economic competition conferred standing. Following the view expressed by Pincus J in Australian Foremen Stevedores' Association v Crone (1989) 20 FCR 377, I rejected that contention, pointing out, at 280:

"ÖNeither the applicants nor any of their customers have any legitimate expectation that competition will be restricted so as to protect their economic interests. Indeed such an expectation might well be considered to be contrary to the public interest as embodied in the Trade Practices Act 1974 (Cth)."

34 However, the interests of the second, third and fourth applicants in this case, though doubtless affected by the prospect of further competition both from new landlords and from businesses competing with and for their current and prospective tenants, go beyond that consideration.

35 Disruption to existing trading and parking arrangements may reasonably be feared during the construction phase of the development. The size and scale of the development could well affect the amenity of the precinct. The adequacy and accessibility of parking for existing traders, customers, clients and others currently using the Manuka precinct are legitimate areas of concern over and above mere economic competition.

36 It follows that each of the applicants has standing in these proceedings on that basis also.

37 That does not mean that adverse economic effects were not matters relevant to the Minister's consideration.

38 However, it should be noted that there is no requirement under the Plan that adverse economic impact be avoided. It is not suggested that the Minister did not consider the issue. Indeed the Preliminary Assessment Evaluation Report concludes that there will be a "significant adverse impact on annual turnover and the viability of the shopping centres at Kingston, Narrabundah and Red Hill". Closure of stores and shops is recognised as a risk. However, that risk is not assessed as rendering it likely that the hierarchy of shopping centres will be abandoned as a result.

39 That is an economic judgment. Experts may differ on that point. It is not a question the resolution of which is open to review. It may have been otherwise had the matter been dismissed as irrelevant. It was not. Indeed, though raised in argument, it is not a matter addressed by the grounds relied on by the applicants.

40 This, as already noted, is an application under s5 of the ADJR Act. It is not a merits review. It follows that I cannot adjudicate upon issues concerning the finding of facts or preference given to one expert opinion over another.

41 It was for that reason that I was obliged to reject affidavits from various well qualified experts in architecture, planning and urban design. Whether in fact the proposed development will adversely alter the scale and character of the Manuka precinct, for example, does not constitute a matter capable of judicial review, save in the unlikely event that a decision to accept a particular view was so unarguably wrong as to make that decision "unreasonable". Otherwise judicial review is concerned with process and compliance with law rather than the merits of the decision in question.

42 In the present case, the challenge is based upon a contention that in a number of respects the decisions under challenge are inconsistent with the Plan.

"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".

44 It follows that if any of those contentions are made good then the affected decision will have been made contrary to law. Of course, such a finding does not automatically cause the impugned decision to be set aside. Section 17 of the ADJR Act confers a discretion to grant such relief up to and including the quashing of the decision in question, as is necessary to do justice between the parties.

45 The High Court in Park Oh Ho v MIEA [1989] HCA 54; (1989) 167 CLR 637 referred to the legislative purpose of the Commonwealth ADJR Act s.16, the equivalent of s.17 of the ACT ADJR Act, in the following terms:

"The legislative purpose to be discerned in the conferral by s16(1)(c) and (d) of power to grant declaratory and injunctive reliefÖis clear. It is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is "necessary to do justice between the parties" (s16(1)(d)) and which will avoid unnecessary re-litigation between the parties of those issues. The scope of the powers to make orders which the subsection confers should not, in the context of that legislative purpose, be constricted by undue technicality."

46 I now turn to the particular contentions raised by the grounds specified in the amended application.

Ground 1(a) - That the development application involves a change to the planned use of Section 41 in that it will no longer be predominantly used for car parking.

47 The Plan, under the section headed "Commercial `C' (Manuka Centre) Land Use Policies", limits the purposes for which Block 4 Section 41 Griffith may be used.

49 The Crown Lease cl.3(e), contains a covenant by the lessee, Manuka Plaza:

"To use the premises only for the purpose of:

(i) car park;

(ii) residential use;

(iii) shop;

(iv) office;

(v) health facility;

(vi) financial establishment;

(vii) business agency;

(viii) pedestrian plaza;

(ix) public agency and/or

(x) restaurant."

50 Each of these is a permitted use under the Plan. However uses (ii) to (x) inclusive are subject to the qualification:

"Only permitted where associated with a car parking structure."

51 Section 41 is one of two areas in the Manuka precinct designated for "Car Parking" identified by the code "d1". The other area is bounded by Furneaux and Bougainville Streets. It has a car parking structure erected on it. The frontage to Furneaux Street is a two storey structure incorporating an art gallery and commercial offices.

52 The contention of the applicants is that the relative scale of the areas to be used for the purposes listed (ii) to (x) above are so overwhelming that they cannot be described as "associated with a car parking structure".

53 It was also argued that as most of the car parking spaces to be provided - all but 138 spaces - are required to meet demand expected to be generated by the development, those spaces should be disregarded in assessing the purpose of the overall structure. It is accepted that no specific purpose would need to be specified to authorise use of the land for on-site parking needed to serve the purposes of commercial development on the land.

54 The case of Warringah Shire Council v Raffles (1979) 2 NSWLR 299 illustrates that point.

55 However, the mere fact that most of the on-site parking needed no separate provision in the purpose clause to justify it does not mean the site will not predominantly be used for the purpose of a car park for cars. It seems reasonable to me to include in that characterisation those car parking spaces the demand for which has been generated by the development.

56 There is, therefore, no substance in the contention advanced that the carparking generated by the development should be disregarded.

57 I turn to the question of relative dominance of the use of the area for "car parking" purposes and those other purposes. For this purpose I note the "gross floor area" permitted or required of buildings to be erected on Section 41 is defined so as to exclude "basement car parking".

58 The "gross floor area" as so defined may not exceed 12,500m=. Each of the other allowed uses of the site, after the mandatory 3,500 m= for a supermarket is taken up, will need to be fully utilised if all the permitted gross floor area is to be utilised.

59 The Crown Lease addresses car parking in cl.3(h) and (i):

"(h) All car parking generated by the development is to be hard-standing and accommodated on-site at a rate which is consistent with the Territory Plan and is to the satisfaction of the Territory.

(i) In addition to the car parking provided in clause 3(h) the Lessee shall provide a further two hundred car parking spaces that will be available to the public at all times."

60 The power to grant Crown Leases over unleased land subject to the Plan is conferred by s161 L(P&E) Act upon "the Executive".

61 Section 36 of the Australian Capital Territory (Self-Government) Act (Cth) 1988 establishes the Executive. Under s.39(1) the Chief Minister and the Ministers appointed by her or him constitute the Executive.

62 The process for the grant of the Crown lease in respect of Section 41 officially commenced on 9 October 1996. By public advertisement, "Expressions of Interest" were called for. The grant of the lease and the premium to be paid for it was a part of the proposal sought from interested proponents.

63 Prospective lessees were required not only to specify the building works on-site they would propose to meet the on-site objectives, they were also to agree to carry out off-site works. Those works were to include the up-grading of Palmerston Lane.

64 Palmerston Lane is a narrow roadway presently bisecting the core shopping area. It is used as a service road for businesses facing both Bougainville Street and Franklin Street although a few premises address only Palmerston Lane. It receives quite large delivery trucks serving the supermarket on the corner of Flinders Way and Bougainville Street.

65 The prospective lessees were asked to assume that, with the redevelopment of Section 41 and the upgrade of Palmerston Lane, some lessees of premises abutting Palmerston Lane would wish to redevelop their areas so as to attract or commence further businesses which would address the Lane.

66 The successful tenderer was Morris Consolidated. After extensive discussions, the final form of the Lease and associated agreement for additional works was settled. Morris Consolidated nominated Manuka Plaza to be the Crown Lessee.

67 Before being granted the Lease or having its proposed development application approved, the developer was required to submit a Preliminary Assessment of its proposal. That was, as has been noted, a requirement imposed by ss113 and 114 of the L(P&E) Act. It needed to address the practicability of conformity with the requirements of the call for expressions of interest and the Plan. It needed also to address the environmental impact of the development in social, economic and architectural terms.

68 That assessment was subjected to both public and departmental scrutiny. It is clear that the Minister did require Morris Consolidated to amend its proposal to accommodate those concerns raised in that process which were accepted by the Minister as valid.

69 After that scrutiny and advice and after the ACT Legislative Assembly by resolution approved the proposal, the Lease was, on 27 November 1997, granted to Manuka Plaza as part of the acceptance of the proposal forwarded by Morris Consolidated. The Crown Lease was executed on 4 December 1997.

70 The development application associated with the Lease was formally approved by the Minister on 30 December 1997.

71 The approval was subject to a number of conditions, most of them technical.

72 Annexed to the "notice of decision" setting out the decision to approve the development application was a document entitled "Findings on Material Questions of Fact". It was, in form, a report to the Minister. There were, also, various other reports and assessments annexed to those "Findings". Curiously, the "Findings" document, though in form authored by a person addressing the Minister, is signed by the Minister himself. That mirrors the form of the "Preliminary Assessment Evaluation Report" - another such document. The latter document is undated but was apparently prepared between 7 December 1997 and 30 December 1997. It is also signed by the Minister, though in form a report to him.

73 However, nothing really turns on this. It may be accepted that the Minister was intending to endorse and adopt the contents of those documents and to incorporate that acceptance as part of his reasons for decision.

74 It is clear enough from the proposal and the final development application as approved that there is to be on Section 41 after the development is completed:

_ sufficient parking to accommodate the demand created by the development itself on that site;

_ sufficient parking to accommodate the additional demand occasioned by the redevelopment of Palmerston Lane; and

_ sufficient parking to replace the existing car parking capacity.

75 The Minister found that the proposal incorporates 3 basement levels of parking and that the area of the Section 41 development to be used for car parking will be 62% of the Gross Building Area. That is an area including the gross floor area of the commercial and residential spaces.

76 Above those three levels of carparking it is proposed to erect a lower ground floor, a ground floor, a "plaza level" (level 1), a second level, a "loft level" and over that, an "upper loft/roof level".

77 All of those levels are to be accommodated within a two storey building height above ground. There are to be 664 car parking spaces provided on site.

78 Granted that the area will continue to be available for use as a car park serving the remainder of the precinct at least to the same extent as before, and that all such carparking to serve those purposes and the demand generated by the development constitutes more than half the available space in the entire structure, it seems to me that the 12,500m= of commercial and residential development may appropriately be characterised as "associated with a car parking structure".

Ground 1(b)& 2(a) - Plot Ratio control of the Plan has been breached.

80 The objective in paragraph 2.8 of Part B2C of the Plan is:

"To ensure that development in group centres is of an appropriate scale compatible with surrounding development."

81 The "Performance Measures" related thereto include:

"Maximum plot ratio: 1:1 or existing plot ratio whichever is the greater except where alternative provisions are made under precinct policies."

82 It is conceded that the maximum plot ratio is exceeded.

83 However "Part B Land Use Policies B0 General" does state that, "Öperformance 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."

84 That confers a discretion to grant approval provided the measures actually proposed are deemed to satisfy the relevant objectives. That is essentially a value judgment. The decision made to consider the application, though the plot ratio was correctly assessed as exceeded, does not seem to me to be so unreasonable as to be inconsistent with the Plan.

Grounds 1(c) and 2 - breach of maximum height control/objective of the Plan.

86 Paragraph 2.8 of the "Manuka Group Centre" section of the Plan sets a maximum height of "2 storeys".

87 It is clear that, in context, a "storey" defines height not internal levels. In that section of the Plan dealing with "B1 Residential Land Use Policies", clause 2.2 indicates that basements and attics are not considered a "storey", although that concession is not expressly applied to commercial developments.

88 In relation to proposed commercial developments, some areas of the Plan define maximum heights in terms of "Relative Levels" (ie height above a given base line). That is a more accurate height restriction than a "storey" but not all limits are so expressed.

89 The "Expressions of Interest" document had drawn attention to the maximum height of 2 storeys. It had also acknowledged that the height between floor and ceiling was typically greater for commercial spaces than for residences.

90 The "Evaluation Report" on the Preliminary Assessment at page 8 addresses the issue. It states:

"An overall height limit of 10 metres is imposed and provision is made for the innovative and imaginative use of attic space and mezzanine floors."

91 The "Assessment", attachment A, considered and apparently adopted by the Minister, as part of his reasons for decision commented on the height issue in the following terms:

"It should be noted that the Territory Plan defines a "storey" and the use of attics, undercroft car parking and other structures. No absolute height limit or R.L. is set for this area. PALM [Department of Planning and Land Management] accepts that the floor to floor heights of commercial buildings exceed those of residential developments and that the functional requirements of some uses may dictate higher than usual buildings eg Capital Theatre."

92 That view may not, of course, be accepted by every architect or town planner. However, it does not offend, in my view, the natural and ordinary meaning of the term "storey". It does accord with the approach expressly authorised for residential developments. The plans in elevation do not give the appearance of greater than two levels above the basement levels.

93 It cannot, therefore, be concluded that the proposal was inconsistent with the Plan in this respect. It follows that this objection also fails.

Ground 3 - That the grant of the Crown Lease to Manuka Plaza was in breach of s161(1)(d) and s161(4) of the L(P&E) Act.

94 The process by which the Crown Lease came to be granted has been described above.

"The Executive may, on behalf of the Commonwealth, grant a lease of Territory Land by-

?a? auctioning the lease;

?b? calling tenders for the grant of the lease;

?c? conducting a ballot for the right to the grant of the lease; or

?d? a direct grant to an applicant for a lease.

96 In relation to s.161(1)(d) there are legislative restrictions, as follows. Section 161(4) and s161(5) state:

"(4) The Executive shall not grant a lease of Territory Land under paragraph (1)(d) otherwise than in accordance with criteria specified pursuant to subsection (5).

?5? The Executive may, for the purposes of this section, by instrument-

?a? specify criteria for the granting of leases under paragraph (1)(d); or

?b? amend or revoke criteria so specified."

97 It is not contended that this Crown Lease was granted to Manuka Plaza as "an applicant" for a "direct grant" or in accordance with specified criteria.

98 The process by which this Lease came to be granted seems so obviously to have been as a result of "calling tenders" that it is difficult to see how a contrary view could have been regarded as seriously arguable.

99 In defence of the applicants who advanced that argument, it appears that their solicitors wrote to the solicitor for the respondent on 20 March 1998 asking for particulars in the following terms:

"12. Question 12 (there are no questions 10 or 11). The Executive may only grant a lease of Territory Land by one of the methods specified in Section 161(1) of the [L(P&E) Act]. The Statement of Reasons provided by the decision maker in relation to the first decision does not state that the Crown lease was granted by auctioning the lease, calling tenders for the grant of the lease, or by conducting a ballot for the right to the grant of the lease.

The Applicants take that to mean that the lease of [Section 41] was granted by direct grant to [Manuka Plaza] under section 161(1)(d), of the [L(&E) Act]. If the Respondent (sic) disputes this allegation and contends that the Crown lease was granted by a different method, the Applicants reserve the right to amend their grounds of review in relation to the first decision."

100 There was no response to this statement. Hence counsel for the applicants contended that it should be taken to be admitted that s161(1)(d) was applicable. However, there is no rule in proceedings such as the present that silence should be taken as consent. Nor can such consent enable this Court to declare that this Lease was conferred by direct grant when that clearly is not so.

101 I accept that it was remiss of the solicitors for the respondent not to reject the applicants' contention and dispel their obvious misunderstanding.

102 There is nevertheless, no substance in the contention that s.161(1) has not been complied with. It follows that this objection also fails.

Grounds 4 and 5 - Sufficiency of provision of car parking spaces

103 Each of the classes of area on the precinct maps (ie a1, a2, b1, b2 and d1) have specific policies applied to them. For example - and this is relevant to Palmerston Lane - a development proposal within the "a1" area on each side of Palmerston Lane may exceed 1:1, (para 4.1(a)) only:

"Öwhere such development is undertaken in association with the development of car parking structures and there remains an overall increase in parking accessible to the public."

104 Paragraph 4.1(b) of the Plan requires additional parking "Öto be provided as part of a comprehensive parking scheme in Precinct d1".

105 It is clearly intended that Manuka Plaza will provide 200 extra spaces over and above the estimated demand generated by the site. Part of that - 60 spaces - is intended to accommodate demand generated by the re-development of Palmerston Lane. However, that redevelopment will not itself create extra demand. That demand is anticipated to arise from existing lessees becoming induced by that upgrade to redevelop frontages to Palmerston Lane. That process of reasoning would not make sense unless "additional parking" takes account of that already provided by or required of lessees of the two "a1" areas under the precinct specific policies.

106 Generally the policy of the Plan is to require on-site parking if demand for it is to be generated by a proposal for re-development.

107 The controls specified in the Plan for the two "d1" areas are:

s4.4(b) "The existing car parks shall be retained and the intensification of parking facilities in the form of low rise structures shall be encouraged."

S4.4(d) "Commercial development associated with a car parking structure shall be considered provided that it will result in an overall increase in parking accessible to the public."

108 Consistent with the interpretation I have adopted in relation to paragraph 4.1 - that a broad interpretation is to be preferred taking account of precinct-wide objectives - it seems to me that the "overall increase" must be that remaining after the foreseeable increase in demand resulting directly and indirectly from the development of Section 41 has occurred.

109 There are some apparent discrepancies between the "Findings" document and Attachment A, "Assessment Against The Territory Plan", though they seem to me to be relatively insignificant.

"The majority of the site is covered by asphalt car park comprising 138 car parking spaces."

111 At para 2.0 (page 10) reference is made to the "PA" (Preliminary Assessment) where conditions had required that, during construction, the developer was to agree that:

"Öparking requirements for the workers on the site Ö be provided in addition to the 140 spaces required for use by the general public."

112 The "Assessment" comments at page 10, both in relation to para 4.4(b) and (d) of the Plan:

"The existing car parks (approximately 140) have been retained on-site in the basement car parking structure. In addition, the development will provide for all the car parking it generates plus provide spaces (approximately 60) to facilitate the development of commercial uses which address Palmerston LaneÖ"

113 That, the comment asserts, represents "an overall increase" in publicly available parking. That would be correct if 138 was the correct pre-development number of parking spaces on-site, rather than 140.

114 Attachment B to the "Notice of Decision" is a document entitled "Assessment Against Lease and Development Conditions". Against clauses 3(h) and (i) of the Lease it is commented:

"Total car parking provided to satisfy the Territory Plan requirements generated by this proposal is 464;

Plus an additional 200 spaces are proposed on-site and available to the public."

115 Additional comments, at page 8, refer to the Plan requirements for car parking:

"All the car parking associated with this development is hardstanding and on-site (basement car parking). The proposal is for 652 spaces on site, plus 12 spaces in the drive-through queue (total 664 on-site). The parking guideline requirement for this development is 677 and this condition is considered to be satisfied."

116 Parking guideline requirements are not rigid rules. They may be modified if circumstances warrant it.

117 Attachment C comments on issues raised by public comments and objections and responses. As to "parking generally", the comment is made,

"The carparking provided as part of the development proposal will be sufficient to provide for:

_ the current carparking accommodated on the site as public car parking

_ the car parking generated by the proposed GFA and uses proposed for the site calculated on the basis of the ACT Draft Access and Parking Guidelines

_ an additional 60 car parking spaces to provide for parking demand generated by the future redevelopment of leases fronting onto Palmerston Lane."

118 In Attachment D it is commented that the provision of at least 7 disabled spaces should be required with an extra 3 for future increased demand. That assessment suggests that such a provision should be a condition of approval. That part of the assessment, however, seems to be only partly reflected in condition (c) of the decision.

119 In the reasons for decision, reference was made to the Preliminary Assessment. That was prepared for, and in consultation with, Morris Consolidated. It was critically appraised by the Minister and his officers, among others. The parking and traffic flow report was done by Ove Arup & Partners, Canberra (ARUP). So far as it expresses opinions concerning the parking demand to be generated by the development both of section 41 and Palmerston Lane, it was open to the Minister, as he did, to prefer other opinions. However, it does expand on the physical features of the pre-existing parking arrangements. The ARUP report, at 2.1, refers to "138 car parking spaces".

120 According to the report, provision is made for a "queue" of 12 spaces to serve a drive-through fast food outlet space. The ARUP report accepts that the Parking Guidelines would require 669 spaces (The Minister's advisers suggest it was 677). The report suggests that that requirement is met by including the 12 spaces in the drive-through queue, and 5 spaces "on street". The actual demand calculated in accordance with the Parking Guidelines ARUP found to be 681 but they deducted 4 to allow for a bicycle parking discount for on-site workers. They assessed the "realistic" requirement at 539. The number then planned by Morris Consolidated was 652 plus the queue and loading dock. Although 5 spaces may be created off-site in addition to existing curbside parking, it was conceded that "some" existing curbside spaces would be taken out by access driveways. The net result on-street is therefore uncertain.

121 It is apparent that the queue space and off-site parking could not reasonably be regarded as car parking on-site "accessible to the public". To "park" a motor vehicle is defined under the Motor Traffic Act 1936 (ACT) to mean:

"Öcause or permit the motor vehicleÖto remain standingÖ".

122 To constitute a parking space the relevant area must permit a vehicle not only to stop or stand there but also to remain there.

123 That is consistent also with the relevant definition accepted by the Shorter Oxford English Dictionary (3rd ed) namely:

"Öto leave (a vehicle) in a car-park or other reserved space

Öto leave in a suitable place until required."

124 In contrast, to "stand" a vehicle is to stop it, even for a moment - see Snodgrass v Kuhr (1986) 42 SASR 477.

125 In the context of the Plan, the designation of Section 41 for "car parking" suggests that it is to be an area providing places where persons resorting to the Manuka Precinct may leave their vehicles while they use the services of nearby traders, business and professional persons.

126 It follows that for the purpose of deciding whether 4.4(b) and (d) of the Plan are complied with, only car parking where persons may leave their vehicles in that fashion should be counted. It does not include loading, unloading or queuing areas.

127 The on-site proposal was determined to generate a need for 464 car parking spaces (see page 2, Attachment B). The Minister accepted that figure. The off-site works were assessed to generate a need for 60 further spaces which the Minister also accepted. Thus the overall development generated demand, as found by the Minister, for 524 spaces.

128 It was necessary over and above that to replace existing spaces and to provide an overall increase in publicly available spaces. The degree of increase is not defined in the Plan.

129 The "Findings" describe the number of "car parking spaces" proposed as 674. If the 12 queue spaces were excluded from it, the proposal would nevertheless exceed the replacement requirement as the Minister had accepted it to be. However, that figure is not correct.

130 The breakdown is explained in Attachment B at page 8. The explanation is that "the proposal is for 652 spaces on site, plus 12 spaces in the drive-through queue (total 664 on-site). The parking guideline requirement for this development is 677 and this condition is considered to be satisfied".

131 It is, therefore, apparent that "674" where it appears in the "Findings" was intended to be 664. It includes the 12 queue spaces. Thus the parking proposed to be provided to meet the three required purposes was, in fact, only 652 spaces.

132 If the number of pre-existing spaces was 140 then the planned provision is not less than 13 spaces short of an "overall increase". If 138 was the correct figure then 11 further spaces would be required to avoid inconsistency with the Plan. Given that 138, whilst less than estimates of up to 147 appearing in some of the supporting documents, is the figure the Minister accepted, it would seem that to avoid inconsistency with the Plan the Minister should have required Morris Consolidated/Manuka Plaza to satisfy a requirement that the development create at least 663 parking spaces open to the public and those residing or employed in the development. The current approval does not impose this requirement.

133 It follows that the Minister's findings do not lead to the conclusion nor could he lawfully have found that there would, after the development had concluded, be an overall increase in parking accessible to the public, be it by 58 or any other number.

134 In so finding, I conclude that the 60 spaces to meet demand generated as a consequence of redevelopment following the upgrading of Palmerston Lane must be part of the on-site requirement for parking for the purposes of considering the consistency of the proposal with the Plan.

135 It follows that, in this respect, the development proposal was inconsistent with the Plan.

136 The challenge to the first decision is dismissed. In terms, that decision does not necessarily require an overall increase in parking accessible to the public. However, it does not prevent it. The terms of the Lease granted are, therefore, not inconsistent with the Plan. Nor is it granted otherwise than lawfully.

137 As to the second decision, I declare that decision to be contrary to the Plan in that it does not, as required by the Plan, provide an overall increase in parking accessible to the public.

138 I will hear the parties as to the form of relief appropriate in consequence of that declaration and as to costs.

I certify that this and the twenty-four (24) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Counsel for the Respondents: B Walker SC & P Walker

Administrative Decisions (Judicial review) Act 1989(ACT)

Land (Planning and Environment) Act 1991(ACT)

(Planning and Environment) Act 1991(ACT)

(Design and Siting) Act 1964

Administrative Decisions (Judicial review) Act 1989(ACT)

Land (Planning and Environment) Act 1991(ACT)

(Planning and Environment) Act 1991(ACT)

(Design and Siting) Act 1964

Manuka Business Association Inc., Cranley Nominees Pty Limited, Manuka Village Pty Limited and Hamib Pty Limited v The Australian Capital Territory Executive and Minister for The Environment, Land and Planning [1998] ACTSC 86

At a glance

Court

Decision date

Before

Source

Judgment (192 paragraphs)

Manuka Business Association Inc., Cranley Nominees Pty Limited, Manuka Village Pty Limited and Hamib Pty Limited v The Australian Capital Territory Executive and Minister for The Environment, Land and Planning [1998] ACTSC 86 (27 August 1998)

Parties

Legislation Cited (10)

Cases Cited (10)