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1. On 8 September 2025, I made the following orders in relation to the applicant's appeal from the orders of the ACT Civil and Administrative Tribunal (ACAT): (a) Leave is granted to the applicant to appeal the order of the ACT Civil and Administrative Tribunal (Tribunal) made on 14 April 2025 and amended on 30 May 2025 in AT142/2024 (Order). (b) The appeal is allowed. (c) Pursuant to r 5052 of the Court Procedures Rules 2006: (i) The Order is set aside; and (ii) The matter is remitted to the Tribunal for further hearing on only the issues that the Tribunal considered but did not finally determine in its reasons dated 10 June 2025. (d) There be no order as to costs.

2. I reserved my reasons, which are now set out below.

The decision appealed from

3. In AT 142/2024, the Tribunal made orders on 14 April 2025, which were then amended on 30 May 2025. The effect of those orders was to set aside the ACT Planning and Land Authority’s (ACTPLA) approval of Development Application (DA) 202342264, and to replace its decision with the Tribunal’s decision to refuse the application. The subject DA proposed a retirement village on land leased by the Federal Golf Club (the third respondent) (FGC).

4. The applicant appeals from the Tribunal’s order, noting that leave to appeal is required.

5. Somewhat unusually, the applicant (the developer of the retirement village) and the first respondent (an incorporated body opposed to the development) are in agreement that the decision of the Tribunal relies upon legal error such that the appeal should be allowed. The second respondent (the Territory Planning Authority) consents to the orders proposed by the applicant and the first respondent for the disposition of the appeal. The FGC as third respondent played no active part in the proceeding. Tribunal decision

6. The reasons for the decision of the Tribunal were published on 23 June 2025. These reasons include consideration of various issues put to the Tribunal, which are summarised below.

Preliminary question as to correct legislation

7. The initial question considered by the Tribunal related to whether the DA had been assessed under the correct legislation. The first respondent submitted to the Tribunal that the Planning and Development Act 2007 (ACT) (PD Act), under which the DA had been assessed, was repealed on 27 November 2023, and replaced by the Planning Act 2023 (ACT) (Planning Act). The first respondent submitted that the application should have been assessed under the Planning Act.

8. Relevantly, the documentation necessary for the DA to be assessed was submitted by the applicant on 11 October 2023, but the applicant did not pay the fees for lodgement of the application until 9 February 2024. The applicant then applied to amend the DA on 28 May 2024.

9. Particular consideration was given to s 613 of the Planning Act (erroneously referred to by the Tribunal in its decision as a provision of the PD Act), which includes a transitional provision to the effect that the repealed legislation continued to apply to a DA if that application was “made” before the repeal of the legislation, and that the application could be amended under the repealed Act for a further six months following the repeal of the Act (that being by 28 May 2024). Ultimately, the Tribunal determined that the applicant had “made” the DA prior to the repeal of the legislation, and had requested amendment of the DA within six months of the commencement of the Planning Act, as permitted under s 613. Accordingly, the Tribunal determined that the DA had been assessed under the correct legislation.

Whether the DA was properly signed and authorised

10. The second issue considered by the Tribunal in its reasons is that with which the present appeal is concerned; that is, whether the DA was properly signed and authorised. Under s 139 of the PD Act, if someone other than the lessee of the relevant land submits a DA, it must be signed by the lessee.

11. The first respondent submitted to the Tribunal that ACTPLA had no proper basis for assuming that the DA had been authorised by the lessee, being the FGC. The DA was submitted by the developer, and a Form 4 Authorisation was signed only by the president of the FGC. However, the provisions of the Corporations Act 2001 (Cth) require the signatures of two directors of a company, or one director and the company secretary, before any assumption can arise as to the execution of the document by that company.

12. In response, the applicant contended that the declaration was submitted as an “Applicant/Lessee Declaration”, on behalf of both it and the FGC as lessee, and that the applicant could validly complete the declaration because it had been expressly authorised by the Form 4 Authorisation to do so on the FGC’s behalf.

13. The applicant contended that it would be highly implausible that the president of the FGC had been acting outside of the authority of the FGC in signing the Form 4 Authorisation, having regard to the surrounding circumstances of the development process, including the approval of the development by the FGC’s membership, the FGC’s extensive consultation with community groups, its support for variation to the Territory Plan to enable development, and the public notification of the DA. Additionally, the applicant noted that the FGC board had later met and ratified the president’s decision to authorise the DA, and in so doing had removed all possibility that the DA was made without the authority of the FGC.

14. The applicant also drew the Tribunal’s attention to s 9 of the Electronic Transactions Act 2001 (ACT), which provides that the requirement for a signature can be met by an electronic communication, if the person’s consent to that use was communicated. The applicant submitted that the electronically submitted authorised form was the functional equivalent of a signature for the purposes of the PD Act, and that ACTPLA was therefore entitled to assume that the applicant had been duly authorised to sign the DA on behalf of the FGC.

15. The Tribunal ultimately determined the issue in two parts. In determining the question of whether the Form 4 Authorisation was required to be signed by two directors, the Tribunal determined that the electronic signing of the Form 4 Authorisation by the FGC president did not obviate the statutory requirement for the document to be signed by two directors under the Corporations Act. Accordingly, ACTPLA had no proper basis to assume the DA had been authorised by the lessee.

16. The Tribunal then considered whether the FGC board’s ratification of the approval of the DA acted to validate the prior actions of the president in signing the DA as a single director, and determined the ratification was not sufficient. In reaching this conclusion, the Tribunal noted the differences between the circumstances in the present case and those in Diethelm v ACT Planning and Land Authority [2024] ACAT 25 (Diethelm), a decision referred to by the applicant in its submissions. The Tribunal highlighted that s 139 of the PD Act functions to prevent “rogue applications” by a single director acting alone without the knowledge or agreement of other directors, whereas the company in Diethelm had only one director. In circumstances where the FGC had more than one director and only one of those directors had signed the Form 4 Authorisation, the Tribunal found it was not open to ACTPLA to assume the president’s signature was sufficient to evidence the FGC’s consent to the DA. The Tribunal also considered it significant that there had been a “time lag” between the original application and the board’s ratification.

Whether the DA was assessed in the correct track

17. The first respondent argued before the Tribunal that ACTPLA had assessed the DA in the wrong ‘track’, being the merit track. The first respondent submitted that ACTPLA had improperly acted as though the development table in respect of the zone in which the development was proposed was overridden by the precinct code in respect of the specific site of development. A development table is contained within the Territory Plan and sets out the development codes with which development proposals in respect of particular land zones must comply. Precinct codes more narrowly set out the requirements that apply to specific sites.

18. The first respondent submitted that the development table for the zone in which the applicant’s development is proposed, lists “retirement village” as a prohibited development, which can only be permitted if the crown lease permits the use and the development is assessed in the “impact track”. The first respondent contended that for the development to be approved, it was first necessary to vary the crown lease to permit the establishment of a retirement village, and then apply to have the DA assessed under the impact track rather than the merit track.

19. The applicant submitted that a retirement village was not a prohibited development under the relevant development table, because the terms of the development table allow developments identified in a precinct code as assessable under the merits track to be assessed without varying the crown lease. Relevantly, the applicable precinct code had been amended to permit retirement villages as an additional merit track development. Accordingly, there was no inconsistency between the relevant development table and the precinct code preventing the DA from being assessed in the merits track.

20. The Tribunal agreed with the applicant’s submission and determined the DA had been assessed in the correct track.

Compliance with zone objectives

21. Section 120 of the PD Act provides that in determining a DA in the merit track, the decision-maker must consider the “objectives”, contained in the Territory Plan, for the zone in which the development is to take place. The objectives under the Territory Plan for the relevant zone in this instance are: (a) Accommodate facilities that will meet the recreational needs and demands of the community and are appropriately located for the potential users of the facility. (b) Make provision for a range of sport and recreation facilities, whether in public or private ownership that may be commercial in nature. (c) Ensure the amenity of adjoining development is not unacceptably affected by the operation of sport and recreation facilities, particularly in terms of noise, traffic, parking, privacy and outside lighting at night. (d) Design and landscaping of development is to be compatible with the surrounding landscape. (e) Provide safe pedestrian and cycling access to recreation facilities to promote active living.

22. The first respondent contended that the proposed development is inconsistent with the zone objectives.

23. The applicant submitted that the DA is consistent with the zone objectives, and these objectives were considered by ACTPLA in its determination. Further, the applicant submitted that the objectives were simply matters for consideration by ACTPLA, and that the development could still proceed even if it were not compatible with the objectives.

24. The Tribunal determined it would have found the proposed development to be consistent with the relevant zone objectives, having regard to the nature of the development and its design.

Other issues

25. The Tribunal considered various other issues relating to access and environmental impact that are not relevant to the determination of this appeal.

Applicable principles

26. I summarised the relevant principles in an appeal from the ACAT in IP Property Botany Street Pty Ltd v Territory Planning Authority [2025] ACTSC 346 commencing at [91].

27. In short, there is a need for the applicant to first identify a question of law and, for a grant of leave to appeal, to show at least an arguable case that the Tribunal erred in its consideration of that question. The applicant also needs to show that if the question was determined in the manner contended for, the decision of the Tribunal may have been more favourable to the applicant.

Amended notice of appeal

28. The grounds of appeals set out in the amended notice of appeal filed on 27 June 2025 are as follows: (a) Ground 1: The Tribunal did not have jurisdiction to make the Order. The Tribunal’s jurisdiction under s 121(2) of the [PD Act] is limited, where a development proposal is made in the merit track, to considering whether the proposal complies with the applicable rules and criteria under the Territory Plan. The Tribunal refused the development application on the basis that the [ACTPLA] should not have assumed that the application had been validly authorised by the lessee, the [FGC] ... The compliance (or otherwise) of the development application with section 139 of the [PD Act] was not a matter prescribed by any rule or criterion of the Territory Plan, but rather by a section of the [PD Act]. Thus, the ground of refusal was beyond the scope of the Tribunal’s power on review under s 121(2) of the [PD Act], and the Tribunal did not have jurisdiction to make the Order. (b) Ground 2: The Tribunal erred in finding that the development application was not properly authorised at the time it was lodged. The Tribunal erred, as a matter of law, in: (i) [F]inding … that the development application was required to be executed in accordance with ss 127 and 129 of the Corporations Act 2001 (Cth) (the Corporations Act). The Corporations Act permits, but does not require, documents to be executed in accordance with ss 127 and 129. (ii) [F]inding … that the question of whether the development application was validly authorised was to be determined solely by reference to the Corporations Act. In doing so, the Tribunal overlooked other evidence before it that FGC had authorised the development application and failed to find as a matter of fact whether steps had been taken which amounted to the authorisation of the development application. (c) Ground 3: The Tribunal erred in finding any non-compliance with the signature requirement in s 139(2)(b)(i) of the [PD Act] could not be cured by the lessee’s ratification. The Tribunal erred, as a matter of law, in: (i) [F]inding … that the principles of ratification could not or did not apply in this case; (ii) Considering … whether ACTPLA had an adequate basis for assuming that the development application was authorised, rather than whether the Tribunal considered, on the material before it, that the development application was authorised. (d) Ground 4: The Tribunal erred in not concluding that the requirement for the lessee to sign the Form 4 was taken to have been met by the submission of an electronic communication in accordance with section 9 of the Electronic Transactions Act 2001 [(ACT)]. (e) Ground 5: The Tribunal erred by not concluding that pursuant to s 129(3) of the Corporations Act 2001 (Cth) the Applicant and [ACTPLA] were entitled to assume that, as Mr Bialkowski was held out by the FGC to be the President of the FGC (and therefore an officer of the FGC), that he had been duly appointed and had authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of the [FGC].

29. In the submissions summarised below the applicant identifies the third ground as the critical foundation for the appeal.

Applicant’s submissions

30. The primary reason for the decision of the Tribunal to overturn the planning approval given by the planning authority was that the DA was not authorised by the owner of the land, that being the FGC. Having reached the view that there was no valid authorisation, the Tribunal held that the planning approval was invalidly made and for that reason set it aside.

31. Before the Tribunal, the applicant contended that any issue with the FGC’s authorisation of the DA was overcome by its subsequent ratification of the decision to authorise the development. The applicant argued that the ratification removed any possibility that the application was made invalidly for want of appropriate authorisation. It submitted before the Tribunal that the ratification operated retrospectively so as to validate a decision made earlier without authority.

32. The applicant contends that the Tribunal erred in law in rejecting that submission. It says that ratification is a common law principle which operated in these circumstances to validate the authorisation of the DA on and from the date it was made. The evidence of the ratification was not challenged. The applicant relies upon the decision of the High Court in Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; 201 CLR 520 at [20] per Gleeson CJ, Gaudron, McHugh, and Hayne JJ: First, there is the question of Mr Patten's lack of authority, on or before 31 May 1991, to sign the purchase and sale agreement, and the ratification of his act by resolution of the board of directors of the respondent on 20 August 1991. North J, and the Full Court, applied the general rule that, where a principal ratifies the earlier act of a person acting as agent without authority, the ratification relates back to the date of the unauthorised act, and the principal is bound as if the agent had had authority at the earlier time. They were correct to do so. This is not a case in which the rights of third parties have intervened. Although the principle is sometimes described as operating upon the basis of a fiction, it is a well settled rule of common law, and is part of the background against which the taxation legislation operates. There is no reason to deny its application in the present case.

33. The applicant also relies upon the decision of the Full Court of the Federal Court of Australia in Kiwi Brands Pty Ltd v Commissioner of Taxation (Cth) [1998] FCA 1595; 90 FCR 64 as authority for the proposition that the common law principle of the retroactive operation of ratification operates notwithstanding that it may lead to a different statutory outcome.

First respondent’s submissions

34. With reference to ground 2 of the amended notice of appeal, the first respondent contends that the Tribunal erred in finding that ss 127 and 129 of the Corporations Act impose a requirement that must be met in order for the planning authority to conclude that the lessee authorised the lodgement of a DA. Both provisions are set out below: 127 Execution of documents (including deeds) by the company itself (1) A company may execute a document without using a common seal if the document is signed by: (a) 2 directors of the company; or (b) a director and a company secretary of the company; or (c) for a proprietary company that has a sole director who is also the sole company secretary—that director. Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company. (2) A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by: (a) 2 directors of the company; or (b) a director and a company secretary of the company; or (c) for a proprietary company that has a sole director who is also the sole company secretary—that director. Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(6) for dealings in relation to the company. (3) A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2). (4) This section does not limit the ways in which a company may execute a document (including a deed).

129 Assumptions that can be made under section 128 Constitution and replaceable rules complied with (1) A person may assume that the company’s constitution (if any), and any provisions of this Act that apply to the company as replaceable rules, have been complied with. Director or company secretary (2) A person may assume that anyone who appears, from information provided by the company that is available to the public from ASIC, to be a director or a company secretary of the company: (a) has been duly appointed; and (b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director or company secretary of a similar company. Officer or agent (3) A person may assume that anyone who is held out by the company to be an officer or agent of the company: (a) has been duly appointed; and (b) has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar company. Proper performance of duties (4) A person may assume that the officers and agents of the company properly perform their duties to the company. Document duly executed without seal (5 A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices. Document duly executed with seal (6) A person may assume that a document has been duly executed by the company if: (a) the company’s common seal appears to have been fixed to the document in accordance with subsection 127(2); and (b) the fixing of the common seal appears to have been witnessed in accordance with that subsection. For the purposes of making the assumption, a person may also assume that anyone who witnesses the fixing of the common seal and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices. Officer or agent with authority to warrant that document is genuine or true copy (7) A person may assume that an officer or agent of the company who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy. (8) Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.

35. The first respondent says that the fact of the Form 4 Authorisation having been signed in a manner not contemplated by s 127 did not necessitate a conclusion that the authorisation was invalid. The only effect was that the presumption in s 129(5) did not allow the planning authority, and in turn, the Tribunal, to assume in the absence of any other evidence that the DA had been authorised by the FGC. The Tribunal erred by failing to consider and make findings about these matters.

36. As to ground 3, the first respondent accepts that the error contended by the applicant is made out. It accepts that the Tribunal erred in finding that the ratification principles did not operate to validate the authorisation of the DA. The effect of the ratification was the Tribunal should have found that the FGC authorised the lodgement of the DA.

Second respondent’s submissions

37. Having considered the submissions of each of the applicant and the first respondent and the proposed orders agreed between those parties for the disposition of the appeal, the second respondent consents to the terms of the orders that are proposed.

38. The second respondent notes that although it takes an active role in these proceedings, its role is limited to the provision of assistance to the court, given that there is an active contradictor in place. In that regard, the second respondent relies upon the decision of Crowe AJ in Quanton Pty Ltd v ACT Planning and Land Authority [2021] ACTSC 139 at [13] to [15].

39. In terms of identified error, the second respondent agrees with the submissions of the applicant and the first respondent, both in respect of the treatment of ss 127 and 129 of the Corporations Act, and as to the effect of the ratification of the FGC’s prior authorisation.

Consideration

40. I am satisfied that legal error on the part of the Tribunal has been established both in respect of the application of ss 127 and 129 of the Corporations Act, and as to the effect of the ratification of the FGC’s authorisation. It is quite apparent that each of those determinations was critical to the decision of the Tribunal to overturn the earlier planning approval.

41. I am also satisfied that the determination of the identified questions of law in the manner contended for by the applicant and the first respondent may have resulted in a different outcome, and one that would be more favourable to the applicant.

42. Commencing at [3] of its decision, the Tribunal identified a number of issues raised before it that the Tribunal was not required to decide because of the determination it made that has formed the subject of this appeal. In the circumstances, it is appropriate that the matter is remitted to the Tribunal for further hearing to enable the consideration and determination of those matters.

Orders

43. As grounds 2 and 3 of the amended notice of appeal are made out, I made the following orders: (1) Leave is granted to the applicant to appeal the order of the ACT Civil and Administrative Tribunal (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 5052 of the Court Procedures Rules 2006: (a) The order is set aside; and (b) The matter is remitted to the Tribunal for further hearing on only the issues that the Tribunal considered but did not finally determine in its reasons dated 10 June 2025. (4) There be no order as to costs. I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: Amendments 16 September 2026 Replace “r 2052” with “r Paragraphs: Decision, 5052” Legislation Cited, [1] and [43]