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1. This application for judicial review is about the scope of a remitter this court made on appeal from proceedings currently before the ACT Civil and Administrative Tribunal (the Tribunal).

2. The underlying dispute concerns Mbark’s plan to develop a retirement village on the leasehold of the Federal Golf Course in Red Hill. In November 2024, the ACT Planning and Land Authority (the Planning Authority) conditionally approved Mbark’s development application. Friends of Federal Fairways (FOFF), an incorporated body describing itself as composed of environmentalists, golfers and Canberra citizens, applied to the Tribunal for review of the Planning Authority’s decision to approve the development.

3. In Friends of Federal Fairways v ACT Planning and Land Authority [2025] ACAT 44, the Tribunal set aside the Planning Authority’s approval and replaced it with a decision refusing the development application. The primary reason for the Tribunal’s refusal was a finding the application was not validly authorised by the owner of the land, the Federal Golf Course. The Tribunal’s finding was dispositive of the review, leading the Tribunal not to determine the other issues which arose. Mbark filed an appeal in this court to set aside the Tribunal’s order. Each of the active parties agreed the appeal should be allowed, and I made orders by consent on 8 September 2025 with reasons following in Mbark FCG Retirement Pty Ltd v Friends of Federal Fairways Inc [2026] ACTSC 5. The orders I made were: (1) Leave is granted to the applicant to appeal the order of the ACT Civil and Administrative Tribunal made on 14 April 2025 and amended on 30 May 2025 in AT142/2024 (Order). (2) The appeal is allowed. (3) Pursuant to r 2502 of the Court Procedures Rules 2006: a. The Order is set aside; and b. The matter is remitted to the tribunal for further hearing only on the issues that the tribunal did not finally determine in its reasons dated 10 July 2025. (4) There be no order as to costs.

4. The reference to r 2502 is clearly in error and is intended to be a reference to r 5052, which provides: 5052 Appeals to Supreme Court—general powers (1) For an appeal to the Supreme Court, the court— (a) has all the powers and duties of the court or tribunal that made the order appealed from; and (b) may draw inferences of fact; and (c) may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way; and (d) may make any of the following orders: (i) an order confirming, amending or setting aside the order of the court or tribunal appealed from; (ii) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and (e) may make any other order that it considers appropriate.

5. On remittal, the Tribunal made orders requiring written submissions and for parties to make an application if they wished to adduce further evidence. FOFF applied for leave to adduce further evidence including, relevantly to this application, two pieces of evidence raising for the first time the issue of Aboriginal cultural heritage concerning trees to be removed as a consequence of the development.

6. Mbark seeks judicial review of the decision to admit further evidence of the kind relied on under s 17 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), or alternatively prerogative relief in the nature of certiorari and prohibition. Mbark reads the affidavit of Paige Alexandria Hall, solicitor, affirmed 12 December 2025. FOFF reads the affidavit of Jiadi Liang, solicitor, affirmed on 20 January 2026.

Tribunal proceedings

7. In its application to the Tribunal at first instance, FOFF submitted a document entitled “Reasons for Applying for Review”. FOFF said at para [8(e)] the Tribunal was required to consider environmental impact under s 120(h) of the Planning and Development Act 2007 (ACT) (the PD Act): [e] the probable impact of the proposed development – s 120(h) – including environmental impacts (especially the destruction of trees and habitat). The Applicant will rely on evidence from the Conservator as well as expert evidence. No clear, coherent, definitive plans have been submitted to conclusively show what trees/habitat will be destroyed and the evidence will show that the proposed development will fragment critical roosting habitat for a variety of important species – including Sulphur-crested Cockatoos, Corellas (two species), Galahs, Rainbow Lorikeets and Gang-gangs, the ACT’s wildlife emblem and a gazetted endangered species;

8. In the Tribunal’s decision prior to the remittal, it identified at [3]-[7] of its reasons the issues it did not determine. Paragraph [7] related to environmental impact and the issue of environmental impact was later discussed at [65]-[73] of the Tribunal’s reasons: Environmental Impact [65] As noted in the Tribunal’s orders, had the DA not otherwise been refused, it would have taken the decision to remit the DA to the Authority for further consideration, with an order that further advice be sought from the Conservator of Flora and Fauna (the Conservator). The following provisions of the PD Act are relevant in this regard. Section 119 provides that if a proposed development will affect a registered tree or declared site, the DA must not be approved unless such approval is consistent with the advice of the Conservator. Section 120(f) provides that when considering a proposal in the merit track the decision-maker must take into account the nature, extent, and significance of probable environmental impacts. Section 139(2)(e) provides that for a DA in the merit track, the DA that is lodged must be accompanied by an assessment of the extent and significance of possible environmental impacts. [66] All parties to the hearing agreed that the Tribunal should give consideration to environmental issues under the provisions of Section 120(f). A considerable portion of the five-day hearing was therefore devoted to environmental issues. [67] When Mbark, the developer, submitted the DA it was accompanied by an environmental assessment. On 12 October 2022 the Conservator issued a conditional environmental significance opinion (ESO) in relation to the proposed retirement village, concluding that the development was unlikely to cause a significant adverse environmental impact. It should be noted for the purposes of clarity that the Conservator’s ESO addressed a wider scope than simply the area of this DA, and included areas that would become subject to separate DAs. [68] During the hearing expert opinions were presented by both the Applicant and the First Party Joined relating to the possible impact on flora and fauna, including the nesting and foraging habits of endangered bird species, the number and nature of “hollow bearing trees”, and the number of regulated trees on and around the proposed development site. The Tribunal observed that there were notable differences of opinion between different witnesses on either side concerning, for example, the number of identified regulated trees, the height of certain trees, the nature and importance of tree hollows, the number of hollow-bearing trees that may be removed or affected by the development, the likely impact of removal, and the level of future hollow supply. [69] The size and condition of hollows is recognised as being crucial to the current and future habitat of the endangered Gang Gang Cockatoo. Extensive evidence was received and considered by the Tribunal in relation to this issue, as well as on competing assessments in relation to the size, depth, character, and value of various hollows in trees in the development area. [70] These competing assessments were reviewed and contested by reference to individual testimony and photographic evidence. Whilst it is not necessary for the Tribunal to form a definitive view as to the actual number of Hollow Bearing Trees on the development site, it is reasonable in our view to conclude that: (a) New and more detailed tree survey information for the development site is now available and it is valuable to the assessment of this DA. (b) The number of Hollow Bearing Trees of potential environmental significance that are proposed for removal appears to exceed the number described in the DA submission. (c) Further tree survey of potential HBTs should be considered. (d) The number of regulated trees appears to well exceed the number of 109 described in the DA submission. [71] The Tribunal further notes that the initial environmental assessment conducted by Mbark took place over a single day. Although an officer of the Conservator was present during that inspection, there were some 400 trees on or around the development site. In comparison, another arborist retained by the Applicant spent some 7 days inspecting the golf course and surrounds and described his assessment as ‘rushed’. The Tribunal is cognisant of the scope of the task in identifying the number and nature of trees on or around the development site that may have been relevant to the task. We are concerned that the additional information and advice that was adduced in the course of the hearing through the evidence of expert witnesses, along with details of more recent and detailed site surveys, is significant and, if available to the Conservator, may have resulted in the Conservator providing: (a) an ESO which was different in at least some respects from that issued in October 2022; and (b) advice as part of the assessment of the Development Application, which was different in at least some respects. [72] We note that the Gang Gang Cockatoo is listed in the endangered category of the threatened species list under the Environment Protection and Biodiversity Conservation Act 1999 [Cwth] (EPBC Act) effective from 2 March 2022. We also note that the ACT is a recognised stronghold of the Gang Gang Cockatoo. Had we remitted this matter to the Authority, we would have recommended that further advice be sought from the Conservator, including consideration of further evidence and survey information presented at the hearing as well the conduct of any further surveys and assessments that may be deemed necessary. We would also have been minded recommending ongoing monitoring, for an appropriate period, specific to the Gang Gang Cockatoo in the area of the development site. [73] In summary, given the importance of assessing any likely adverse environmental impact and potential ramifications for endangered species, even if the Tribunal had not otherwise had cause to refuse the application it would have been inclined to remit the DA to the Authority. This would have entailed an order that the Conservator should be provided with all environmental opinions and evidence presented at the hearing, for further assessment. In the event the application had been remitted, that would in our view have allowed the Conservator and the Authority to review and reconsider the scope of the EPBC referral.

9. After the matter was remitted, the Tribunal made orders on 16 September 2025, requiring parties to file written submissions: …in response to the Tribunal’s intention to decide the matter in a way that is consistent with its previous decision published 23 June 2025, including the remission of the application to the [Planning Authority] with a direction to seek further advice from the Conservator for Flora and Fauna.

10. The Tribunal also made an order allowing parties to apply for further evidence to be adduced “in relation to this application for review”.

11. FOFF sought leave to adduce the two pieces of evidence currently in dispute, which raised a concern that removal of certain trees would impact Aboriginal cultural heritage on the property: (a) A letter of advice written by Past Traces Heritage Consultants dated 2 June 2025, setting out a site visit was undertaken of the property which resulted in a finding of “[f]our potential culturally modified trees”. The authors took the view, after assessing the trees with representative Aboriginal organisations, any development or impact on the trees was not acceptable in light of their cultural significance. (b) A witness statement from Ms Sue Bestow, dated 17 October 2025, where she recounts asking Mbark at a presentation on the proposed development whether an Indigenous ethnographical and archaeological survey had been completed. The answer to which was apparently no.

12. On 20 November 2025, the Tribunal granted leave to FOFF to adduce the two pieces of evidence “…in so far as the evidence is within the scope of the potential environmental impact of the proposed development”. The Tribunal also made orders for Mbark to provide submissions on the further material adduced by FOFF and set down a timetable towards another hearing.

What is the scope of the remittal?

13. In allowing the additional evidence, Mbark submits the Tribunal exceeded its jurisdiction beyond the terms of the remittal. Order (3)(b) of the remittal limited the issues to those the Tribunal “considered but did not finally determine in its reasons dated 10 June 2025”. This limitation narrowed the scope to consideration of issues commenced but not determined to conclusion in the initial review proceedings. Mbark submits it is evident from the Tribunal’s reasons at [65]-[73], the only outstanding issue relating to environmental impact was the Conservator’s view on evidence relating to trees. Nowhere was the issue of Aboriginal cultural heritage identified by the Tribunal as having been considered .

14. The Tribunal not considering Aboriginal culture heritage in its reasons follows from FOFF’s particularisation of its case. Mbark says it sought particulars of the grounds FOFF identified in its Reasons for Applying for Review at first instance. FOFF pressed certain paragraphs, including [8](e), in a document dated 18 February 2025 called “Confirmation of Applicant’s Grounds”. The effect of FOFF’s confirmation was to limit the assessment under s 120(h) to the bird species issue and the related issue of trees, and not the “environment” more broadly. This limitation was reflected in the submissions of the parties, transcript of proceedings and evidence led in the Tribunal prior to the remittal.

15. By contrast, FOFF submits the Tribunal acted within the scope of the remittal. Section 120(h) of the PD Act is a mandatory consideration and that was the ultimate issue the Tribunal had to determine. The Tribunal’s reasons at [7] adverts to this issue by beginning, “on the issue of the potential environmental impact”. The particularisation which Mbark sought does not change the ultimate issue the Tribunal must consider.

16. FOFF also points to its submissions on appeal which identified environmental impact as an issue remaining to be determined. This was not disputed by Mbark. It was also open to the parties to seek a limit to the scope of the remittal excluding further evidence pursuant to r 5052 of the Court Procedures Rules 2006 (ACT), and this was not done. Absent that limitation, the Tribunal was free to adopt whatever procedures it saw fit in reaching the correct or preferable decision – including granting leave for adducing evidence on an issue which was not apparent before the remittal.

17. The Planning Authority, as the second defendant, traverses the same subject matter as FOFF but adopts a neutral position. They point out the Tribunal’s order limited the relevance of the additional evidence to that within the scope of the proposal’s “potential environmental impact”.

18. The parties referred me to the decision of Jackson J in Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105; 403 ALR 498 at [42] and ff, in which his Honour observed the remitter is to be approached as a continuation of the original trial except in circumstances where it is expressly a remitter of the entire controversy between the parties. That is not the situation here and the remitter must be approached as one that is to proceed as a continuation of the original hearing, and limited to the determination of those issues identified as not determined previously. I accept, as Mbark submits, the jurisdiction of the Tribunal is limited by the scope of the remitter. The residual question in respect of environmental impact is what, if any, limitation did the terms of the remitter impose upon the scope of the determination to be made by the Tribunal. There was no limitation on the admission of new evidence per se, and whether or not such evidence is admitted is in these circumstances within the discretion of the Tribunal, subject to it being evidence relevant to the determination of an issue left undetermined at the time of the previous decision.

The matters not previously determined

19. The relevant portion of the refusal decision is at [7]: On the issue of potential environmental impact, the Tribunal notes that significant yet conflicting evidence was presented in the Tribunal proceedings additional to that available to the Conservator of Flora and Fauna when consulted in relation to the Development Application. Had it been necessary for the Tribunal to decide this matter, it would have remitted the Development Application to the Planning and Land Authority with a direction to seek further advice from the Conservator, taking full account of the additional evidence and any further checks the Conservator considered necessary in light of that evidence

20. The Tribunal considered it unnecessary to determine the issue of potential environmental impact as part of its refusal decision. Had it been called upon to do so, the Tribunal would have remitted the development application to the Planning Authority with a view to seeking further advice from the Conservator as to additional evidence placed before the Tribunal and not previously considered by the Conservator as part of his recommendation.

21. The need for the Tribunal to ultimately consider environmental impact as a component of the development application review is not in contest. Its obligation to do so arises under s 120(h) of the PD Act (now repealed): 120 Merit track—considerations when deciding development approval In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following: … (h) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts. …

22. In applying s 120(h), McWilliam J observed in Campbell v ACT Planning and Land Authority [2024] ACTSC 10; 384 FLR 310 at [167]–[168]: [167] The Dictionary to the Planning Act defines “environment” as: “environment—each of the following is part of the environment: (a) the soil, atmosphere, water and other parts of the earth; (b) organic and inorganic matter; (c) living organisms; (d) structures, and areas, that are manufactured or modified; (e) ecosystems and parts of ecosystems, including people and communities; (f) qualities and characteristics of areas that contribute to their biological diversity, ecological integrity, scientific value, heritage value and amenity; (g) interactions and interdependencies within and between the things mentioned in paragraphs (a) to (f); (h) social, aesthetic, cultural and economic characteristics that affect, or are affected by, the things mentioned in paragraphs (a) to (f). Note Environmental has a corresponding meaning to environment (see Legislation Act, s 157).” [168] The note to this definition carries significance here, in that the reference to “environmental impacts” in s 120(h) includes all parts of the definition of “environment” as set out above. Further, the reference to “probable environmental impacts” must be seen as an example of the type of “probable impact” envisaged by s 120(h) – it is not prescriptive of the entire scope of the provision.

23. The point of difference between Mbark and FOFF is not the adducing of additional evidence. Both parties sought and were granted leave to do so. It is the scope of the evidence relevant to probable environmental impacts of the proposed development as that term was applied at first instance. The issue is whether the matter the Tribunal “did not finally determine in its reasons dated 10 July 2025” is limited to a narrower category of probable environmental impacts, to be determined with reference to the particularisation of that component of the claim prior to the delivery of the refusal decision and the submissions made in the context of that claim. It is not suggested by FOFF that Aboriginal heritage was raised previously. What is suggested is that matters concerning Aboriginal heritage clearly fall within the definition of environment and, in turn, within the meaning of “probable environmental impact” for the purposes of s 120(h).

24. I do not accept the remitter is limited in the manner contended for by Mbark. The Tribunal made no error in finding it unnecessary to determine the issue of probable environmental impact in its refusal decision having regard to the primary determination it reached, albeit erroneously. In circumstances where the scope of the remitter did not prohibit an application to rely upon fresh evidence, it was open to either party to make such application even in circumstances where the fresh evidence concerned an aspect of environmental impact not previously ventilated. Whether or not the evidence was admitted was a matter within the discretion of the Tribunal and not one confined by the terms of the remittal. The exercise of such a discretion will only be interfered with on appellate review in well prescribed circumstances: House v The King [1936] HCA 40; 55 CLR 499 and Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251 at [55] (Besanko and Robertson JJ). Section 23 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) is in the following terms: 23 Tribunal decides own procedure (1) The tribunal may decide its own procedure at any stage in dealing with an application if no procedure is prescribed for the application under this Act or an authorising law. Note 1 The procedures of the tribunal must be as simple, quick, inexpensive and informal as is consistent with achieving justice (see s 7 (a)). Note 2 A reference to an Act includes a reference to any statutory instrument made or in force under the Act (see Legislation Act, s 104). (2) The tribunal may, by order, dispense with the application of a provision of the rules to a particular proceeding on any conditions it considers appropriate. (3) The tribunal may make an order under subsection (2) on application by a party, another person or on its own initiative.

25. The Tribunal was free to determine its own procedures for the continued hearing within the confines of the remittal.

26. Mbark contends the topic of Aboriginal heritage cannot properly be regarded as a matter before the Tribunal and not determined, because it was not even raised in the earlier claim as particularised and it was not addressed in submissions. However, with reference to s 120(h) and the definition of “environment”, evidence concerning Aboriginal heritage issues may have relevance as a component of the considerations for determination of probable environmental impact. The terms of the remitter did not prohibit the admission of new evidence in the continued hearing - a restriction which it was open to either party to pursue as a condition of the remitter. It is the scope of the evidence relevant to the issue of probable environmental impact which has been broadened by the admission of the subject documents, not the issue for determination itself.

27. I am satisfied probable environmental impact was a matter not determined by the Tribunal as an element of its refusal decision. I am also satisfied the breadth of that term for the purposes of s 120(h) may extend to consideration of evidence concerning Aboriginal heritage issues of the kind identified in the two documents now sought to be placed before the Tribunal. It was within the scope of the remittal, and consistent with the discretion resting in the Tribunal, to determine whether the subject documents should be admitted in its consideration of probable environmental impact. There was nothing in the terms of the remittal preventing that course. As a consequence, it has not been demonstrated the Tribunal exceeded its jurisdiction in admitting the documents nor is any relevant error identified warranting intervention by this court on appeal.

Orders

28. For the reasons set out above, I make the following orders: (1) The originating application is dismissed. (2) The plaintiff is to pay the first defendant’s costs. I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: Date: