McKenzie v ACT Planning & Land Authority & Ors [2004] ACTSC 80

2. The development application, which was lodged with the first respondent on 26 July 2002, sought approval for the demolition of the existing house and the construction of two single storey dwellings on Block 3, Section 46, Division of Watson (the "subject block"). Approval was taken to have been refused only because of the first defendant's failure to give such approval within the required period.

3. At the time the decision was taken to have been made, a draft variation to the Territory Plan (the "Plan") which then had interim effect, restricted the number of blocks on which a dual occupancy development could be approved to no more than 5 per cent of the total number of blocks in the relevant section used or originally allocated for single dwelling housing. However, it had been common ground that this restriction had ceased to have effect by the time of the hearing before the Tribunal.

4. The first respondent had recommended to the Tribunal that the development application be approved, subject to certain conditions, including one requiring the applicant to upgrade the existing fences on the north, east and south boundaries of the property to 1.8 metre high timber lap and cap fencing or another standard acceptable to the first respondent, assuming that the adjoining lessees provided written agreement for that work. It appears that the appellant was willing to accept these conditions.

5. Despite this recommendation, the second, third and fourth respondents, who were adjoining or near neighbours of the appellant, maintained objections to the development application and were joined in the proceedings before the Tribunal, though none elected to take any active part in the hearing of the appeal before me.

6. During the course of the proceedings before the Tribunal the second respondents, who owned Block 2, contended that, in order to ensure the necessary levels of privacy, the fence on the boundary of their property and that of the appellant would need to be at least 2.3 metres high. They also argued that, if the proposed development were to proceed, the private open spaces of units 1 and 2 should be separated with that relating to unit 2 being relocated to the rear of the block.

7. The third respondents, who owned Block 4, claimed that the impact of the proposed development on the amenity of their property would be greater than that suggested by the site plan and inimical to their enjoyment of bird life attracted to their landscaped rear yard and the adjoining open reserve at the rear of their property. They also argued that the proposed vehicle parking and circulation arrangements would require them to endure car noise, headlight glare and vehicle pollutants. They suggested that these problems could be addressed by separating the conjoined garages of the proposed development in accordance with a plan which they had prepared. The third respondents also contended that the proposed development would obstruct their outlook to the open reserve at the rear of their property. However, the Tribunal found that whilst there would be some reduction in the view from the house in certain parts of the rear yard, this did not provide any basis for the refusal of the development application and, in any event, the development would have no effect on the view immediately to the rear of Block 4.

8. The fourth respondents, who said that the driveway of the appellant's property faced the main living areas of their house, complained that the proposed development would result in more vehicles being parked in the street and that a crest in the road impeded driver visibility. However, the Tribunal carried out a visual inspection of the site and said that the degree of visual obstruction did not appear to be any greater than that encountered in other suburban areas and that the street was wider than other streets of similar road carrying capacity.

9. The Tribunal delivered written reasons for its decision on 24 December 2003. It noted that the appellant's submission that the "performance controls" of Pt 5 of the Residential Design and Siting Code for Multi-Dwelling Developments (the "Code") would be satisfied by the development had not been contested by the other parties, apart from one minor aspect of the application which the appellant had indicated she was prepared to modify. The Tribunal adverted to the decision of Lucian Nowicki v Brian Martyn [1996] ACTSC 17 (29 March 1996) in which Miles CJ observed at [47-48] that the introduction to the Code states that performance measures satisfy the objectives and relevant performance criteria "in most cases" and said that "normally no further evidence of performance is required" and that an applicant who complies with the performance standards may expect, "normally" or "generally" that the approval of the application will follow. Hence if the performance measures are satisfied, the Plan requires that there be something about the relevant circumstances surrounding the application which take it out of the category of most cases, so that there is justification for deciding to withhold approval which would otherwise generally or normally be granted upon satisfaction of the performance measures.

10. However, the Tribunal said that, whilst the performance measures in the Code addressed issues relating to vehicle parking and access and safe movement of vehicles on the street, they did not address the impact of parking and access on adjoining neighbours. The validity of this perceived distinction was not argued and it is unnecessary to consider the issue further because the Tribunal's decision was not based upon any view as to the likely impact of vehicular parking or access on any of the appellant's neighbours.

11. The Tribunal stated that when the evidence suggested that there was a potential for adverse impacts on amenity to be occasioned by the approval of a development application but did not enable it to "arrive at a conclusion on the matter with a reasonable degree of certainty", the Tribunal should not expose those whose amenity might be affected to the risk that such potential would be realised. I am unable to see any basis for the view that an applicant for a development approval carries any onus of proving that there is no real risk of any potential for an adverse impact upon the amenity of neighbouring properties being realised, let alone a burden of excluding any such risk to the point of reasonable certainty. However, the validity of these propositions was not argued and it is again unnecessary to address these issues further.

12. The Tribunal's decision was based substantially upon its perception of the likely effect of the proposed location of the private open space adjacent to each of the two proposed units which were to have been located on the same side of the subject block, adjacent to and oriented towards each other. The Tribunal had previously rejected such a proposal in an earlier case and took the view that this proposal was equally unacceptable. The Tribunal expressed some concern that whilst the amount of open space met the minimum requirement, a significant part of this area would be consumed by a wide screen hedge and said that the equivocal nature of evidence from an expert witness as to the need for a fence of greater than normal height to protect the amenity of the residents of the adjoining block lent some support to concerns that had been expressed by the relevant objectors. The Tribunal added that there was some basis for concluding that the concentration of noise, movement and activity, that would result from the location of the private open space adjacent to unit 2, would unacceptably affect the amenity of the occupiers of Block 2. The Tribunal was also concerned that requirements of the Code that "private open space be located to take account of neighbouring open space" would not be satisfied.

13. It appears that after the evidence had been concluded but before the provision of written submissions in accordance with the Tribunal's directions, the appellant entered into discussions with the owners of Block 2 and, as a consequence, submitted amended plans which they agreed would substantially meet their concerns. The appellant then sought to have consent orders made pursuant to s 43B of the Administrative Appeals Tribunal Act 1989 (ACT) (the "AAT Act") but the Tribunal declined to make them on the basis that such an approach would have required the agreement of all the parties to the appeal.

14. The Tribunal ultimately ruled that any alternative proposal would first need to be assessed and be the subject of a decision by the first respondent. The Tribunal added that the function of the Tribunal was to review the decisions of others and not to itself act as an original decision maker.

15. The appellant submitted that the Tribunal had erred in law in breaching the rules of natural justice and/or failing to accord procedural fairness in connection with the decision. She sought to support this ground on a number of bases.

16. First, she submitted that it had been unfair to refuse the development application when she had modified the plans and relocated the private open space to the north east of one unit in response to the Tribunal raising concerns about this issue during the course of the hearing; especially when the modified plans had been endorsed by those objectors most closely affected by this issue.

17. Ms Wong, who appeared on behalf of the first respondent, informed me that in a subsequent case the Tribunal had taken the view that it was entitled to consider an amended application and that the first defendant supported its right to do so. As she pointed out, the NSW Court of Appeal in Cambridge Credit Corp Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590, at 602, had distinguished between a deferral of approval pending the revision of some part of the plans and an implied rejection arising from a requirement for completely revised plans, observing that the distinction is a matter of degree and that it may be difficult to draw in borderline cases. In Pashalidis v ACT Planning & Land Authority [2004] ACTAAT 21 (24 May 2004) the Tribunal suggested at [30] that in addition to "the constraints upon the imposition of conditions" outlined by the Court of Appeal in Cambridge Credit Corp Ltd v Parkes Developments Pty Ltd, conditions specified pursuant to s 245 of the Land Act are required to be for a planning purpose, relate to the development for which permission is being given and be reasonable.

18. In my opinion, it is clearly open to the Tribunal to approve a development application subject to conditions which require some amendment to the plans for the proposed structure and I can see no reason to doubt that the Tribunal could take into account any proposal put forward to meet concerns expressed by objectors or, indeed, by the Tribunal itself. It would clearly not be entitled to consider a completely different development application and the distinction between these two situations may depend upon questions of degree. However, in the present case, there does not appear to have been any real consideration of the crucial question as to whether the amended plan involved such a substantial departure from those originally submitted as to properly be regarded as a different application rather than a revision of some aspects of the original application which could properly be considered by the Tribunal.

19. Ms Wong submitted that the amended plans had, in substance, merely relocated the private open space of unit 2 to the rear of the block and that this change had been motivated by concerns expressed by the Tribunal during the course of the hearing. The amendments could have been adopted as valid conditions of approval of the initial development application pursuant to s 245 of the Land Act. I accept this submission. In Pashalidis v ACT Planning & Land Authority, the Tribunal itself accepted that while the new plans involved design changes, the essential ingredients were "sufficiently similar to those of the plans originally submitted and that the changes did not justify a conclusion that the new plans involve the making of a fresh application". The same observation could be made about the amended plans put forward by the appellant.

20. A failure to consider a point which was worthy of serious consideration and had been seriously advanced may constitute an error of law: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276. In my opinion the implicit contention that it was open to the Tribunal to approve the appellant's plans subject to amendment involved such a point.

21. The manner in which this issue was resolved also involved, in my opinion, an unintended breach of the requirements of procedural fairness. As Ms Wong quite properly pointed out, the issue was raised only after the evidence had been completed and the appellant did not make any application to have the matter re-listed in order to seek leave to reopen her case. However, whilst the appellant was at one stage legally represented, her written submissions were signed by her personally and there is no reason to suppose that she was aware of the need to make such an application in a tribunal enjoined by s 3A of the AAT Act to conduct the proceedings as informally as possible. Furthermore, the first respondent had itself submitted that the correct and preferable decision had been to approve the application subject to the condition originally imposed by the first respondent and to a further condition agreed upon by the parties. Indeed, it seems clear that all parties had contemplated the possibility of approval of the application subject to some amendment to the plans. In this context, I think that if the Tribunal had intended to exclude any possibility of an approval subject to an amendment proposed by the appellant then it should have warned her of that possibility and given her an opportunity to address the relevant issues. I note that Miles CJ took a similar view in Lucian Nowicki v Bryan Martyn. It is now well established that, at least in administrative appeals, a flexible approach may be required to ensure due procedural fairness. In the present case that could have been accommodated by the simple expedient of re-listing the matter for further argument or even advising the parties of the position by letter and inviting further written submissions.

22. I have no doubt that the proceedings were conducted in good faith by all concerned and that it did not occur to anyone that the appellant might suffer real prejudice by the resolution of the proceedings in this manner. However, the test is an objective one and I am satisfied that, as a consequence of the course adopted, the appellant was effectively denied the opportunity to make submissions and perhaps adduce further evidence in respect of the amended proposal.

23. As Ms Wong suggests, it may, perhaps, have been open to the Tribunal to have declined to permit the appellant to reopen her case in order to raise the issue of the amendment application. However, even in litigation more closely regulated by rules of procedure, a party will normally be permitted to amend his or her claim so that the real issues can be duly litigated unless the late amendment is likely to cause prejudice of the kind that cannot be adequately cured by appropriate orders for costs. In any event, the fact that the Tribunal's discretion may have been exercised adversely to the appellant even if she had been duly heard on the issue, does not, in my opinion, provide an adequate answer to the complaint that she was not given the opportunity to be heard.

24. More fundamentally, the Tribunal seems to have approached the matter on the basis that "any alternative proposal" would need to be the subject of a separate decision by the first respondent and that it lacked the jurisdiction to take the proposed variation into account in considering whether the development application should be approved. For the reasons already expressed, I am satisfied that this was an error of law.

26. The appellant complained that a document had been admitted into evidence when the veracity of the assertions it contained could not be properly tested. The document had apparently been prepared by Mr Cohen, who was an expert town planner, and the transcript reveals that the appellant's solicitor had indicated that he would object to its admission only if it were intended to rely upon Mr Cohen's expertise to support the opinions expressed in it. He added that he had not believed that that had been intended and understood that the document was intended only to reflect the views and opinions of two objectors. The ensuing discussion makes it clear that the President accepted that approach and the solicitor subsequently indicated that on that basis he did not maintain his objection to the tender of the document. Whilst conceding that this had been the case, the appellant argued that her solicitor had not understood the potential significance of the document and that it should, nonetheless, have been rejected. I am unable to accept that any issue of procedural unfairness arose in these circumstances.

27. The appellant also complained that an application for an adjournment to obtain expert evidence had been refused and that the Tribunal had subsequently held that "In the absence of further evidence on the issue [of levels of noise from vehicle emissions]. . . the Tribunal . . . should refuse approval to the development application and remit the matter to the respondent with the recommendation that the issue be reconsidered in the light of any report provided by the applicant". It is clear from the transcript that whilst an objection was foreshadowed by counsel for the first respondent, no such application was made by the appellant. Furthermore, the finding in question did not ultimately form part of the Tribunal's reasons for its decision.

28. In addition, the appellant argued that the Tribunal had erred in holding that s 43B of the AAT Act required the agreement of all parties. However, I have no doubt that that is what the section requires. It would be absurd to imagine that the legislature had intended to permit the first respondent or other parties to proceedings before the Tribunal to be denied a hearing merely because the other parties had been able to reach an agreement among themselves.

29. Finally, the appellant argued that the Tribunal had erred in failing to deal with her written submissions. There is no substance to this contention. The Tribunal was not obliged to refer to any particular submissions and its reasons sufficiently disclose the reasoning process which led to the decision and the factual findings upon which those reasons were based.

30. Nonetheless, the appellant has demonstrated that the approach taken by the Tribunal was vitiated by error of law and the decision must be set aside. Whilst the appellant submitted that I should approve the application I think that the appropriate course is to remit the matter directly to the first respondent for reconsideration of the application in the light of the amended plans.

31. Ms Wong suggested that I should also recommend that the first respondent take into account any report provided by the appellant of the potential impact of vehicle noise on the third respondents. However, having considered the evidence that was adduced in the proceedings before the Tribunal and the likely effect of the amended plans concerning this matter, I am satisfied that such a recommendation would be unnecessary.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Counsel for the appellant: Ms C McKenzie (self represented litigant)