Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 10, 22P

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Decisions (Judicial Review) Act 1989

Associations Incorporation Act 1991

Environmental Planning and Assessment Act 1979 (NSW) ss 79C, 90

Human Rights Act 2004 ss 12, 21, 28, 40B

Land (Planning and Environment) Act 1991

Planning and Development Act 2007 ss 59, 119, 120, 121, 148, 156, 162, 407, 408, 408A, 409, 419 & Sch 1

Subordinate

Legislation cited: Commercial Zones Development Code

Local Centres Zone

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Argos Pty Ltd v Corbell & Ors [2014] HCA 50; (2014) 254 CLR 394

Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377

Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3

Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91

Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galetti Holdings Pty Ltd [2010] ACAT 24

Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; (2015) 303 FLR 49

Darkan v The Queen [2006] HCA 34

De Angelis v Wingecarribee Shire Council [2013] NSWLEC 1148

Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27; (1997) 93 LGERA 373

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489

Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96

Isgro v Gold Coast City Council [2002] QCA 233; (2003) QPELR 41

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

Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675

Lewiac Pty Ltd and ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2002] QPEC 80

Mason and ACT Planning and Land Authority and Ors [2009] ACAT 7

Thomson v ACT Planning and Land Authority [2009] ACAT 38

Texts cited: J Middleton, Statutory Interpretation - Mostly Common Sense?, Melbourne University Law Review Annual Lecture, 14 April 2016

Having decided that Noah's Ark Resource Centre Incorporated is not an eligible entity for the purposes of the Planning and Development Act 2007 and does not have standing to bring the application, the Tribunal orders that:

1. The application by Noah's Ark Resource Centre Incorporated for review of the decision by the ACT Planning and Land Authority to approve Development Application 201528713 is dismissed.

**1. On 17 October 2016, the ACT Planning and Land Authority (Authority) decided to approve with conditions under the Planning and Development Act 2007 (P&D Act) Development Application 201528713. That Development Application (DA) proposed the construction of a child care centre and associated works, and a variation of a Crown Lease to permit the use of Block 2 Section 28 at Rivett, Australian Capital Territory (the subject site) for a child care centre.

2. Noah's Ark Resource Centre Inc (Noah's Ark) operates a child care centre near the subject site. It has applied to the ACT Civil and Administrative Tribunal (Tribunal) under the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) for a review of the Authority's decision. Noah's Ark submits that the correct or preferable decision is to set aside the Authority's decision to approve DA 201528713 and to substitute for it a decision refusing DA 201528713.

3. The Authority submits that the decision under review should be affirmed, and the application by Noah's Ark be dismissed.

4. The lessee of the subject site, Nikdia Hume Pty Ltd (Nikdia Hume), submits that the DA should be approved.**

5. The application gives rise to three main issues:

(a) whether and how the proposed development on the subject site will adversely affect Noah's Ark;

(b) whether Noah's Ark has standing to bring the application; and

(c) whether the Tribunal has jurisdiction to hear the application.

If the Tribunal has jurisdiction, it will be necessary to consider how its power should be exercised.

**6. Although the second and third issues can be characterised as threshold issues, they can only be determined in light of the evidence about whether and how the proposed development will adversely affect a particular aspect of the operations of Noah's Ark. Consequently, it is necessary to consider the evidence and make findings in relation to the first issue before deciding the other issues.

7. It is appropriate to mention two procedural issues briefly.**

**8. Before the hearing of this application, the legal representatives of Noah's Ark sought a direction from the Tribunal that this application be heard together with a separate and subsequent application by Noah's Ark in relation to a decision by the Authority to approve another child care centre (AT 10 of 2017). The later decision was made on 20 February 2017 in relation to DA 2012629784. The proposed 110 place child care centre would be on Block 22 Section 28 at Rivett Place, Rivett. That site is approximately 100 metres from the existing child care centre operated by Noah's Ark, as is the site which is the subject of the present application. Indeed, the locations of the current and proposed centres are at points of an equilateral triangle whose sides are 100 metres long.

9. The representatives of Noah's Ark stated that the issues raised in the two proceedings would be identical, as would be much (if not all) of the effect of the evidence. They submitted that hearing the two proceedings together would allow significant efficiencies and savings in time and costs for the parties and the Tribunal, and would avoid the risk of conflicting findings of fact and applications of principle arising out of the same factual matrix.

10. For reasons given at a directions hearing on 6 March 2017, the Tribunal (constituted by the President) dismissed the application for the two matters to be heard together. Among other things, the Tribunal noted that if the scheduled hearing of the present application was vacated, the Tribunal would not be able to determine the matter within 120 days of the application being made as required by section 22P of the ACAT Act.

11. As it happens, the hearing of this matter occurred on 8, 9 and 10 March 2017, just few days before the expiration of that period on 15 March 2017. Hence the President decided, under section 22P(3) of the ACAT Act to extend the period for deciding this application because it was in the interests of justice to do so.**

12. The parties agreed that, given the issues before the Tribunal in this application, the hearing could proceed without a view of the subject site and the child care centre operated by Noah's Ark. Accordingly, the Tribunal did not inspect those premises.

**13. The subject site is at 57 Bangalay Crescent, Rivett, on the corner of Bangalay Crescent and Rivett Place. It has an area of 1,371 square metres.

14. The site was previously used as a petrol service station (demolished many years ago), and has been remediated. Development Approval was issued subject to the need to obtain written endorsement of the Environmental Protection Agency prior to commencement of works (Condition A3).

15. The subject site is located in a Commercial Zone 4 (CZ4) - Local Centres Zone under the Territory Plan. Consequently the Commercial Zones Development Code (CZDC) and the CZ4 - Local Centre Zone Development Table, which contains the relevant objectives and development table for the zone, apply to the subject site.

16. The CZ4 zone is surrounded by land zoned Community Facility Zone and Residential Zone 2 to the west. The CZ4 - Local Centre Zone Development Table prescribes the merit track for the proposed kind of development, 'community use'.

17. The purpose clause of the current Crown Lease (Volume 2123 Folio 58, issued on 20 August 2007), states that the land is to be used for one or more of the following purposes:**

(a) non-retail commercial use;

(b) residential use limited to multi-unit housing; and

(c) shop.

**18. The gross floor area shall not exceed 887 square metres.

19. The approved variation to the Crown Lease adds to the list of uses in the purpose clause "community use limited to child care centre." It does not vary the gross floor area limit.

20. The community and recreational facilities in the immediate locality of the subject site include shops, playing fields, an aged persons' facility and the Noah's Ark Resource and Child Care Centre (Noah's Ark Centre Rivett). On the opposite side of Bangalay Crescent is a residential area.

21. Kids Club Rivett Pty Ltd (Kids Club Rivett), an associated entity of Kids Club Early Childhood Learning Centres Pty Ltd (Kids Club), proposes to operate a 91 place child care centre on the subject site if DA 201528713 proceeds.

22. Corie Stone, the Managing Director of Kids Club, gave evidence about the general approach of Kids Club to child care centres and the proposal for the subject site.[1] He stated that Kids Club places a high priority on the inclusion of children with additional needs. Its Inclusion of Children with Additional Needs Policy states, among other things, "All enrolled children are treated without bias regardless of ability, gender, religion, culture, family structure, or economic status or disability." One of the stated aims of that policy is to "enable children with additional needs and abilities to have access to our program specialised equipment and specific resources."

23. According to Mr Stone, Kids Club "accepts children for who they are and how they learn." It currently provides for children with diagnosed conditions of autism, and has previously catered for many children with a variety of additional needs and physical disabilities. It applies to the Commonwealth Government for support workers to assist with the care and education of particular children with additional needs. Kids Club has provided, and continues to provide, additional support workers at its own cost.[2] It works with a variety of special needs consultants and ensures that its staff have access to specialist training for those children.

24. In his oral evidence, Mr Stone described how a child at a Kids Club centre who might have special needs would be assessed, and how arrangements are made for a special needs teacher to help with that child. Sometimes another teacher is included until the child is assessed. He conceded that if a child exhibits difficult behaviours which are disruptive, but that child is not eligible for funding, the child would be asked to leave. However, he said that in 21 years of being in child care he has never asked a family whose child had a disability to leave, whether or not Kids Club had funding for them.

25. At the time of the hearing, Kids Club did not operate a child care centre in the ACT. It was preparing to open one in Symonston. Kids Club had been chosen to provide that centre for Geosciences Australia.

26. Consistently with Kids Club's current and past practice, it is intended that Kids Club Rivett would provide care for children with a range of conditions, physical disabilities and additional needs. Mr Stone asserted that Kids Club Rivett will become an important educational facility in the community of Rivett and surrounding areas.[3]**

**27. In essence, Noah's Ark seeks the setting aside of the Authority's decision to approve DA 201528713 because the Noah's Ark Centre Rivett operates near the subject site, surplus funds[4] from that centre are used to finance a range of community programs operated by Noah's Ark in conjunction with other bodies, and the proposed development would adversely affect the profitability of the Noah's Ark Centre Rivett and hence put in jeopardy the community programs that Noah's Ark resources from the surplus funds derived from that centre.

28. To assess the strength of the case advanced at the Noah's Ark Centre, it is necessary to understand:**

(a) the objects and philosophy of Noah's Ark;

(b) the range of community programs provided by Noah's Ark; and

(c) the services offered at the Noah's Ark Centre Rivett and how the surplus funds from that centre are applied to subsidise community programs.

**29. It will then be necessary to consider the submissions by Noah's Ark in the context of the extent of the threat to the profitability of its Rivett operations said to be posed by the proposed development.

30. Written and oral evidence was given on behalf of Noah's Ark by:**

(a) Donnald McMichael, the Chief Executive Officer and Business Manager of Noah's Ark;[5]

(b) Anthony Wilson, a chartered accountant and Principal Consultant of the accounting firm Accountability;[6]

(c) Janice Brennan, the Manager, Early Childhood Programs based at the Noah's Ark Centre Rivett;[7] and

(d) Dr Brenda Abbey, the principal of Childcare by Design, who has more than 35 years of experience in early childhood education and care including as the director of child care centres, and as a consultant since 2000 in developing and reviewing child care centres.[8]

31. Written and oral evidence was given on behalf of Nikdia Hume by:

(a) Mr Stone;[9] and

(b) Phil Henry, the Principal and Managing Director of Business Geographics Pty Ltd, a location research company specialising in the analysis of geographic and demographic information to assist Australian companies with marketing and strategic planning including specialist child care research.[10]

32. Noah's Ark is a not-for-profit entity incorporated under the Associations Incorporation Act 1991 (ACT). Its objects are:

(a) To support the cognitive, emotional, experiential, physical and social development of children and their families.

(b) To support the therapeutic and educational value of play and its role in the development of children through provision of resources, professional support and advice.

(c) To encourage and foster the inclusion of children with special needs into all services and activities of the Association.

(d) To encourage and foster skills and knowledge of those involved in parenting and providing care for children.

(e) To work with all individuals and organisations to further the objectives of the Association.

(f) To seek government and non-government involvement to achieve the above objectives.

33. The operating philosophy pursued by Noah's Ark has been to meet the needs of families in relation to early childhood education and care which are not otherwise met by the government or private sector.[11]

The range of community programs provided by Noah's Ark

**34. Since 1973, Noah's Ark has conducted early learning community programs in furtherance of its objects at various locations in the ACT and Queanbeyan. It currently provides community programs at premises in Giralang, Lyons, Weston, Jerrabomberra and at two locations in Rivett, including the Noah's Ark Resource Centre at 79 Bangalay Crescent. The only long day care centre operated by Noah's Ark is at that address.

35. Dr Abbey's report provided information about the five programs provided by Noah's Ark in collaboration with other organisations - Playschool, Play and Learn, Resource Library (often described as the Toy Library), Paint and Play, and the Schools as Community Centres.[12] Mr McMichael's witness statement also provided information about the programs.[13]

36. Dr Abbey described the community programs as "important to the well-being of disadvantaged, vulnerable, and isolated families and their children in the ACT and Queanbeyan." She stated that those who use these programs may feel they have "no suitable alternative" if the programs are discontinued. In her view, this eventuality "should not be considered lightly" as it is her professional and personal experience that families and children look forward to, value, and rely on as few as two hours in programs such as these. Dr Abbey also stated:**

The benefits children receive are exponential as they commence pre-kindy with enhanced development, understanding of routines, dispositions towards learning and social awareness that they may not have acquired otherwise or elsewhere ... In addition, their families have learnt the basics of how to support their children, and become familiar and more confident in what would otherwise be a daunting experience.[14]

**37. Ms Brennan is based at the Noah's Ark Centre Rivett. She gave evidence about the range of programs run by Noah's Ark that she oversees,[15] their distinctive features, and their benefit to local families. She stated that because the Noah's Ark Playschool has the financial support of the long day care program, this model of Playschool can be offered at an hourly fee less than or equal to other Playschool programs in Canberra, ensuring that it is affordable to most in the community (although some of their families struggle to meet even this fee level).[16]

38. Ms Brennan gave oral evidence about the nature and extent of the different contributions that Noah's Ark makes to specified community programs such as Playschool, Play and Learn, and the Paint and Play programs. For example, Noah's Ark provides a qualified educator to facilitate the playgroup and provides resources (such as play dough and puzzles), while other bodies provide the venues (which Noah's Ark hires), advertising and some other staff.

39. That oral evidence was supported by the Playschool 2017 Parent Information Booklet, Welcome to Play & Learn Sessions Booklet, and the Memorandum of Understanding between Communities@Work, Noah's Ark Family and Community Centres, Woden Community Services Inc and The Smith Family dated January 2016 about the Paint and Play program.[17]

40. Ms Brennan pointed out that, so far as she was aware, the provision of a qualified facilitator for playgroups run by Noah's Ark distinguishes those playgroups from others in the ACT (such as those run by the parents of participating children).

41. Ms Brennan provided a letter from the mother of one child who started Playschool at the beginning of the 2017 school term. The mother wrote with appreciation about Noah's Ark accepting her severely disabled son into the program when other ACT playschools did not.[18] Ms Brennan also referred to a "success story" involving a child with physical disabilities who gained confidence and independence by attending Playschool.[19]

42. Despite the distinctive features of these programs, Ms Brennan confirmed Dr Abbey's understanding that they are not owned, in the sense that someone else could conduct the same or similar programs (such as Playschool), subject to complying with the licensing process.

43. According to Noah's Ark, those community programs enable families, who would otherwise have difficulty in doing so, to give their children an early learning experience to assist them in later education and development and to obtain support and information generally. The programs provide benefits to participants which are not provided by a long day care program, and, to the extent that some benefits may also be provided by a long day care program, enable families for whom long day care is not suitable to have access to those benefits.

44. Indeed, Mr McMichael described these programs as unique in the ACT and Queanbeyan. Although other play schools operate on a "cooperative" basis, they do not provide the same level of facilitation or are available to parents who are unable to participate in the running of the operation.[20]

45. In Noah's Ark's submission, the community programs are of benefit to members of the community who participate in them and to the community generally.**

**46. Noah's Ark has been operating at 79 Bangalay Crescent, on the site of the former Rivett Primary School, since 1998 under a license agreement with the Australian Capital Territory. The licence to occupy the premises was initially on a month-to-month basis. It was extended to a 12 month term from May 1998, and was monthly thereafter.[21] During the term of its licence, Noah's Ark's operations have been relocated to a different part of the school premises, but the change of location was not reflected in the licence.

47. There was some evidence that recently Noah's Ark was offered a 12 months term under a new licence, but that document had not been signed at the time of the hearing.

48. In 2009, Noah's Ark commenced to operate a long day care centre there. Initially the day care centre was licensed for 15 places per day for children between 12 months and five years of age. Since 2010 it has been licensed for 89 places, 81 of which are of practical utility. Accordingly, the Noah's Ark Centre Rivett offers a maximum of 81 places.

49. According to Mr McMichael, Noah's Ark promotes its operations, including day care, as having a special needs focus. To that end it is prepared to take on children of any level of need. He gave as examples:**

(a) an infant child with cerebral palsy who would otherwise have been excluded from mainstream early childhood services and who remained with Noah's Ark from July 2011 until graduating to formal schooling in 2015; and

(b) another infant with severe cerebral palsy who was taken on in early 2015.[22]

**50. He also stated that places for numbers of other children with diagnosed autism spectrum disorder, Asperger syndrome and global development delays were available from the inception of the long day care program and continue to the present time. The total number of children in that category at the Noah's Ark long day care program depends on available teaching resources and/or government funding to enable one-on-one care if necessary. Noah's Ark has not refused child care to any child with a disability, providing the appropriate resources are available. It will often fund a considerable part of a child's first months under its care, particularly if the child has no formal diagnosis of their condition. An assessment of the child's behaviour is organised after classroom observations by trained teachers and subsequent discussions with the parent. After diagnosis, Noah's Ark is then able to apply for funding, currently amounting to $16.00 per hour of the $24.00 per hour that the carer is paid. The remaining $8.00 per hour is a cost to Noah's Ark.[23]

51. Mr McMichael provided an email message dated 15 February 2017 from the grandmother of a boy with a quadriplegic condition describing the support provided by Noah's Ark to the boy a couple of years earlier. That support included arranging financial assistance so that a one-on-one carer attended solely to the boy's needs while at Noah's Ark. She continued:

Many more little people of all ages and backgrounds were given the same consideration and care, and I know just how indebted to Noahs Ark we all are for this inclusive initiative of your organization.[24]**

**52. Historically, Noah's Ark's early learning community programs were made possible by the assistance of government funding. However, such funding is not guaranteed. Consequently Noah's Ark has, from time to time, been forced to discontinue programs when funding for them has ceased.[25] While some funding continued for specific programs, it was on a short term basis. The only government grant currently received is for the Toy Library.[26]

53. Noah's Ark commenced to operate the long day care centre in Rivett in 2009, predominantly to provide a continuing source of income so that it could maintain its community programs to provide care for children with disabilities whose family could not otherwise afford it or whose children would not be accepted in other day care centres because of their disability. The income generated by the day care centre operations which is surplus to needs in respect of maintaining the operations of the day care centre is used to subsidise the cost of the community programs. By that means Noah's Ark is able to keep those programs operating, and also meet the cost of supporting children with special needs enrolled in the day care centre.

54. According to Mr McMichael, the long day care program employs approximately 30 staff. A further 8 to 10 staff are involved in the community programs and only two of those are employed as casuals. The long day care program and the community programs operate largely independently, with only two staff members being involved in both. Most of the operating expenses of the community programs are met from the income they generate. However the overheads associated with those programs are covered by funds generated from the day care centre operations. That amounts to approximately $80-100,000.00 per annum. However, Mr McMichael said there had been no separate recording of the cost of meeting the special needs of children in the day care centre. That cost varies from time to time according to the level of one-on-one attention that a child may require.[27] He estimated that the resources provided have, on average been the equivalent of one full-time educator each year at a cost of approximately $50,000. That cost is met out of the day care income.[28]

55. Having prepared the annual financial accounts for Noah's Ark Centre Rivett for the previous three years, Mr Wilson gave evidence that the total amount of the subsidy provided by the operation of the long day care centre in favour of the community programs is $64,500.00 per annum. Based on those figures, he estimated that the long day care program needs to maintain occupancy rate in excess of 91% in order to be able to continue to provide that subsidy. He also noted that Noah's Ark has sustained losses in several previous years and, as a result, its equity has diminished. He concluded that the ability of Noah's Ark to continue to absorb losses is "quite limited."[29]

(a) it needs to be able to maintain its present day care centre occupancy rate in order to be able to keep the other programs operating;

(b) the operation of a 91 place child care centre approximately 100 metres from its long day child care centre will reduce the occupancy level of its centre;

(c) that would reduce and probably eliminate the level of surplus such that Noah's Ark would not be able to maintain its community programs and meet the costs of supporting children with special needs enrolled in the day care centre;

(d) cessation of the community programs and support for children with special needs in its day care centre will mean the loss of services and benefits presently enjoyed by the community; and

(e) that loss will not be made good by the operations of the proposed new long day care centre on the subject land.

57. In order to assess the potential impact of the proposed development on Noah's Ark's operations at Rivett, and hence its community activities, it is necessary to understand:

(a) the number of child care places currently available in the catchment area of the Noah's Ark Centre Rivett;

(b) whether the number of current places meets, exceeds or falls short of local demand or need;

(c) the anticipated level of demand for child care places in that area in the foreseeable future; and

(d) whether the addition of the proposed development is likely to affect the operations of Noah's Ark.

58. The evidence discloses that, in addition to the proposed development on the subject site, there are other proposed or imminent child care centres that are also potentially relevant to the viability of Noah's Ark's operations at Rivett.

The estimated demand for, and potential impact of, the proposed development on the subject site

**59. Noah's Ark contends that there is sufficient supply of child care places in the catchment area for the subject site, additional child care centres in Rivett or Weston Creek are not necessary (noting that a centre is being constructed in Coombs, a few kilometres to the north of the subject site), and the proposed development would adversely affect Noah's Ark's operations by attracting some current or prospective children from the Noah's Ark Centre Rivett. Evidence in support of its submissions was given by Mr McMichael, Ms Brennan and Dr Abbey.

60. On the other hand, Nikdia Hume contends that there is an unmet need for child care places in the catchment area for the subject site, and the proposed development will meet that need as well as attracting some people who currently do not use child care facilities inside or outside the catchment area.**

61. The Noah's Ark Centre Rivett has a capacity of 405 places each week. According to Mr McMichael, at the time of the hearing it had a current vacancy rate of 69 places (17%).[30] He attributed the vacancy rate to:

(a) the normally lower-level of uptake in places offered at the start of the year;[31] and

(b) the impact of the opening in May 2014 of the YMCA day care centre which operates on Dixon Drive in Holder (a matter considered later in these reasons).

**62. Mr McMichael stated that, prior to May 2014, the vacancy rate at the Noah's Ark Centre Rivett was "very low." In 2014 and 2015, the vacancy rates increased "significantly." The figures he provided for each calendar year record the total number of positions offered and the total number of vacancies for that year. Those figures show percentage vacancies to be about 9% in 2013, 13% in 2014 and 14% in 2015. Although the vacancy rate has improved (i.e., lessened) since then to about 10% in 2016, he does not expect that it will improve greatly in the near future given that the YMCA centre has excess capacity and has yet to open two rooms. In his opinion, there was "no other reasonable explanation" for the rise in the vacancy rate at the Noah's Ark Centre Rivett. That experience leads him to expect that the opening of a 91 place day care centre on the subject site "will have a significant impact on the Noah's Ark vacancy rate and its profitability and the subsequent community based services that it is able to provide/underwrite."[32]

63. In support of those opinions, Mr McMichael referred to the financial accounts of Noah's Ark for the years to 31 December 2014 and 31 December 2015. He stated that Noah's Ark has reported losses in varying amounts in eight of the past 12 years. The income and expenditure statements in evidence showed a net loss in 2013 and, despite the drop in occupancy, a net surplus in 2014 and 2015. The accountant for Noah's Ark had provided a budget that projected a substantial loss for 2017.**

64. Ms Brennan gave evidence that, for the purposes of these proceedings, she contacted the following long day care centres in the Woden and Weston Creek areas to ask whether they were operating at capacity.[33]

(a) Weston Creek Children's Centre - offers 105 places and had only a couple of vacancies on a Monday and Friday;

(b) Stirling Child Care - offers 24 places and operates at about 80% occupancy;

(c) YMCA Early Learning Centre in Holder - offers 124 places and operates at 87% occupancy;

(d) Woden Early Childhood Centre - offers 61 places and operates at 86% occupancy (having operated at capacity for the previous three years);

(e) Lollipop Centre at Woden - offers 60 places and operates at around 84% occupancy;

(f) Lyons Early Childhood Centre - offers 77 places and operates at 86% occupancy.

**65. Dr Abbey prepared an expert witness report on the impact of the proposed child care centre on ACT community programs.[34] That report assessed the potential impact of a new child care centre nearby on Noah's Ark's operations at Rivett.

66. Based on the level of vacancies in four centres within the postcode area within which the Noah's Ark Centre Rivett is located, Dr Abbey stated that it is:**

reasonable to suggest that the existing childcare centres in Rivett and nearby areas already provide more childcare places than are required to meet the demand and a new centre will need to target these existing enrolments, rather than seek to meet any unmet demand of families who cannot find care for their children.[35]

there is already availability of child care places in every age group for every day of the week in existing centres in this postcode, including in a centre that was opened just over two years ago, and which has still to open all of its rooms. As a result, a new centre in such a situation must first attract its enrolments predominantly from families using existing centres.[36]

**68. Those conclusions were supported by enquiries made by Dr Abbey doing a 'secret shopper' survey of vacancies at those centres.

69. Based on her observations, Dr Abbey stated that when a new centre opens it "invariably" attracts a percentage of the children enrolled in existing nearby centres (sometimes as high as 20% to 25% of enrolments), regardless of the preventative steps taken by the existing centres. This percentage is affected by a range of factors.[37]

70. Dr Abbey recorded that the opening of the YMCA Early Learning Centre at Holder 2004 impacted upon enrolments at the Noah's Ark Resource Centre and stated that "it is reasonable to expect that a centre opening in the same street will have a greater detrimental effect."[38] In her opinion:**

While Noah's Ark Long Day Care Service appears to be well-connected to the local community and its parents express satisfaction with the quality of care and education provided to their children, together with the consistency, knowledge and skill of its educators, the Service is likely to lose a percentage of its enrolled children to the new centre, particularly as this centre is within 100 metres of Noah's Ark Long Day Care Service, minimising logistical disruption for parents.

Further, Noah's Ark Long Day Care Service operates out of a building that has existed for some time and naturally shows its age and use.[39]

**71. Consequently, based on her experience and local information, Dr Abbey concluded that it "seems likely that a reduction in enrolments of even a relatively small percentage could have a significant dual impact," that is, an impact on the continuing viability of the Noah's Ark service and the proceeds available to it to subsidise the family and community programs.[40]

72. In her report, Dr Abbey suggested a number of practical actions available to Noah's Ark in an attempt to mitigate the effect on its enrolments of the opening of a similar centre nearby. One of the strategies is to consider raising its fees both in the long day care centre and for the family and community programs. That strategy has the risk of reducing access to the services to disadvantaged and isolated families and those with children with additional needs. However, taking into account the well-recognised 'pricing perception paradox', there might be a perception that other centres are better because they charge more.[41]

73. In his submissions about Dr Abbey's evidence, Mr Erskine SC for Nikdia Hume did not quarrel with her expertise and experience, but sought to establish that:**

(a) it was limited to assessing how child care centres operate (particularly whether they comply with national standards and licensing requirements); and

(b) did not include demographic analysis, financial and accounting matters.

74. Dr Abbey conceded that her report did not contain relevant demographic information (for example, about the adjoining suburbs of Coombs and Wright in Molonglo) because that is not her area of expertise.

**75. Mr Henry is the CEO of a demographic research company specialising in child care research analysis. Although he does not have university qualifications in demography or statistics, he has a background in analysing geographic and demographic data and has had more than 15 years of experience researching the child care sector in Australia. Mr Henry has developed a Childcare Needs Assessment Report to support due diligence and feasibility for child care centre development and acquisition.[42] Dr Abbey told the Tribunal that she recommends him to people to have feasibility studies done. Although Mr Henry's experience and expertise were not in dispute, aspects of his analysis and opinion evidence were. Those criticisms are noted later in these reasons for decision.

76. Mr Henry gave evidence in relation to the demand for child care services in Rivett and its catchment area. There was an issue about the appropriateness of the boundary of the catchment area that he used. According to his report,[43] the boundary of a relevant catchment area is assessed by taking into account the unique geographic characteristics of each site. Mr Henry gave oral evidence that the criteria for determining the boundaries of a catchment area included accessibility to the subject site (the neighbourhoods from where people are likely to travel to the site), whether public transport or private vehicles are used, road networks, geographical considerations (such as the location of parklands and major roads), and the presence of other child care centres in the area that provide suitable services at an appropriate price. Apart from child care facilities near workplaces (a factor discussed later), most people will not travel too far to a child care centre. About 70% to 80% of enrolments will be drawn from an area within two to three kilometres of the child care centre. According to Mr Henry, there is usually some consistency between centres in that "enrolments come from the local area."

77. For the purpose of advising about the proposed development at the subject site, he described the catchment area as bounded by the Tuggeranong Parkway, stopping at Chapman in the south and extending north to include Coombs. The major catchment area (or study area) is the area from which an estimated 80% or more of enrolments at the subject site would come.[44] He said that catchment areas are "obviously subjective" and vary from site to site. In this case, the Tuggeranong Parkway was used to define the catchment area for the subject site as a separate market from Lyons and areas east of the Parkway. It is assumed that people follow such major commuter routes into the city.

78. Mr Henry agreed that if the catchment area had been described differently (for example, to exclude most or parts of Coombs well to the north of the subject site and include Kambah, the next suburb to the south of the subject site), the figures would be different as the catchment would not include an area which has a large growth in young families. As he put it, "the definition of the catchment certainly will affect those demand and supply figures." He stated that Coombs was included in the catchment area because there was no child care centre there at the time his report was prepared. That centre was under construction at the time of the hearing.

79. In the absence of any evidence of a more appropriately circumscribed catchment area for the subject site, the Tribunal is content to proceed on the basis that the catchment area is as described by Mr Henry

80. According to Mr Henry, Noah's Ark has a "very different catchment to other centres because it provides a specific service to a specific market, so it would have a much broader and larger catchment." However, there was no data from Noah's Ark to support that assertion.

81. Mr Henry set out information and assessments of population growth and demand for child care places in the 2611 postcode area (which includes but extends well beyond the boundary of the catchment area). In preparing his report, Mr Henry relied on Australian Bureau of Statistics (ABS) data from the 2011 census and made estimates based on ABS estimates up to 2015 and information from the ACT Treasury up to 2015, as well as his firm's research into the development of land in different areas. He observed that new estates tend to attract young families with a higher proportion of adults of childbearing age and children. Within the 2611 postcode area, there are variations between established areas and new suburbs such as Coombs, which will have a "much different population profile" once it is developed fully.

82. In summary, his written evidence was that:[45]**

(a) the ratio of children per child care place is a useful indicator of the local long day care market, and a ratio of less than 3:1 is often typical of markets that are oversupplied whereas a ratio greater than 4:1 can sometimes indicate a market that has some supply restriction or undersupply;

(b) there are five long day care centres in the major catchment area that supply a total of 394 places to an estimated market of 1,847 children under five years of age, which represents a high ratio of 4.69 children per child care place;

(c) the average annual occupancy rate at existing centres is estimated at 87.14% (a rate that is proximate to the data provided by Ms Brennan, noted earlier), which suggests a supply restricted market in which some parents might have difficulty finding child care in the local area that meets their needs;[46]

(d) although the estimated current demand for places in the major catchment exceeds the available local supply, due to the suburbanite/commuter nature of the local market and the limited supply of places up to 100 places per day leave the major catchment to utilise long day care services elsewhere (such as near parents' workplaces);[47]

(e) it is assumed that a future increase in the supply of places (from the subject site and other proposed developments) will provide an attractive alternative to some commuters and further reduce this net loss;

(f) the two new centres established in 2014 in Holder (the 126 place YMCA Early Learning Centre and the 50 place St Jude's Early Learning Centre) alleviated the immediate unmet demand in the major catchment, and likely picked up some market share from existing centres as well as retaining some enrolments that previously left the area;

(g) although that increase in supply is relatively significant as a proportion of the original supply (a change of +80.7% since 2011), most centres (including the Noah's Ark Centre Rivett) still report high occupancy rates; and

(h) on the assumption that a future increase in supply (that is, one or two new purpose-built centres) attracts the unmet demand that currently leaves the catchment due to the limited availability of places (and that it would attract to the area some people from places such as Lyons), it is estimated that the market could support an additional 200 to 250 places by 2021[48] without creating significant long-term oversupply of places.

83. Where child care places are not available locally, families may make alternative arrangements such as:

(a) using child care closer to the workplace;

(b) using licensed and regulated family day care facilities;

(c) using extended family care;

(d) not returning to work.

**84. Mr Henry conceded that an unquantified proportion of parents would always use child care elsewhere. He seemed to acknowledge that some of the children in the catchment area go to family day care but said that he did not look at family day care as part of his standard report. He explained that the Productivity Commission looks at a family day care separately, so that the figures he uses for participation and attendance are for long day care only. He described the two types of care as "separate demands."

85. For the purposes of the analysis in his report, Mr Henry proceeded on the basis that:**

(a) average occupancy rates over 100% indicate an undersupply;

(b) average occupancy rates over 85% indicate restricted supply;

(c) an average occupancy rate of 80% "tends to indicate a balanced market;"

(d) average occupancy rates below 75% "suggest a tendency to some oversupply" and

(e) average occupancy rates below 70% indicate an oversupply.

**86. In the previous two years, the average occupancy rates nationally were between 75% and 80%.[49]

87. Mr Henry explained that a balanced market is one where there is sufficient supply to meet the demand. If a child needs care, they can obtain it. When average occupancy rates exceed 85%, the availability of places in the area is limited. For example, some centres might be full while others only have positions for certain ages on specific days. Consequently, a family might not be able to have their child care needs met. It is rare for a centre to be fully occupied, and the numbers of vacancies might vary from day to day (for example, due to cancellations).

88. An occupancy rate approaching 80% is the benchmark for sector profitability, although individual features of a centre's expenses and income will affect its profitability. Some might be profitable with an occupancy rate closer to 70%.

89. Mr Henry described his projections for 2021 as an attempt to identify what the market can support to meet the need without creating an oversupply in the market. On present calculations, the current 87% occupancy indicated a supply restriction. There is a need for more places. Looking ahead he would like to see a more balanced market where average occupancy was lower so that people who are looking for care could obtain it. The benchmark for profitability is 80% and that is what he was aiming for. Accordingly, his forecast for the number of places needed in 2021 used a figure of 81%.

90. Mr Henry noted that, in addition to the subject site (with 91 places), there is an approval in place for a 120 place centre at Coombs, and applications for a further 110 place centre at Rivett and a 103 place centre at Weston. In his view, if all of these developments were to proceed contemporaneously before 2021, that potential development of 424 places would more than double the existing supply of places and "may result in an oversupply."[50]

91. On the basis of research conducted by his company, Mr Henry observed that the opening of a new child care centre can have variable impacts depending on the market and existing competitive profile in which it operates. In particular, he noted that enrolments at a new centre can be generated:[51]**

(a) because the new child care centre is seen as an attractive alternative to existing older centres, for example where a new centre is perceived to offer better facilities and/or quality of care than existing options;

(b) from local enrolments that were previously lost to other areas because there was previously a limited choice of child care services locally (in other words, a new centre might attract a particular market segment whose needs are not currently being met); and

(c) in a way that increases the long day care participation rate and generates additional demand in a given market (for example where some families have delayed a return to the workforce or have made alternative informal arrangements for care but are willing to utilise new services).

**92. Mr Henry also noted that, despite the factor listed at [91](a), in many cases well-managed, high-quality not-for-profit centres maintain high occupancy rates and long waiting lists even in markets with new purpose-built entrants. He referred to examples in Melbourne where some small cooperative centres have full occupancy and long waiting lists despite the increased availability of places in other centres. That reflects the different preferences for the types of child care parents like to use.

93. Mr Henry explained in some detail how the figures he relied on were calculated and verified. The estimated average occupancy rate referred to in his report represents a statistical estimate of the occupancy level at all existing centres in the catchment area. It is calculated by dividing the total estimated daily demand by the observed daily supply of places.[52] The estimated daily demand draws on data collected on a quarterly basis by the Office of Early Childhood Education and Child Care and information published annually by the Productivity Commission. The participation rate is the proportion of children in the zero to four years of age group who attend child care services subsidised by the Australian Government. Nationally, the proportion of those children is about 43%. In the ACT, the proportion of children in the zero to five years of age group is about 53%.[53] Mr Henry's report excluded five-year-olds, as their participation rate is lower because that is the age at which children start attending preschool and prep. The participation rate is half the children in the zero to four years age range, probably around 55% to 60%.

94. For the 2611 postcode area, he adopted a "conservative approach" and used an estimated participation rate of 40% as that was "indicative" of the area where the market was fairly established with an older local population. A lot of the demand is from new people moving into the area, particularly the northern part of the catchment area. The 40% included people accessing child care near the parents' workplace outside the catchment area. Even with that low participation rate, he estimated that there was a significant proportion of demand which was not being met adequately in the area. In order to reach the average occupancy rate of 87% for the catchment area, he assumed that about 100 places leave the area to utilise services elsewhere or are not using child care.

95. The estimated average occupancy is based on the number of places demanded in the area divided by the number of places supplied. In this case, the estimated participation rate is 40% of the total number of children (739 of 1,847 children). Daily demand is based on an average attendance rate of three days or 28 hours each week, that is, 60% (443 children). That figure is divided by the number of places supplied to reach the 87.14% average occupancy calculated by Mr Henry's firm.

96. Mr Henry noted that one of the characteristics of the ACT market is that there is a lot of employer-sponsored and not-for-profit child care on or near workplaces. That was factored into his report in terms of the net loss from the catchment area. He accepted that there was a combination of people who prefer to have their child close to them at work and those who have children at such centres because child care is not offered locally, but he did not know which is the dominant factor.

97. If 100 places per day leave the area to use long day care services elsewhere, the figure is 343. The number of places currently available in the catchment area is 394. On that basis, the average occupancy rate is 87% of the available places.

98. To check or validate the 87% figure, Mr Henry's firm also used a 'mystery shopper' telephone enquiry technique to ascertain whether a centre has vacancies for individual children of specific ages (one at a nursery room and one in a toddler room), rather than asking how many vacancies there are at the centre.

99. There was evidence that the 120 place development in Coombs was being constructed at the time of the hearing of this case. In Mr Henry's opinion, once the additional 120 places become available at Coombs (giving a total of 514 places in the catchment area), the net loss would decrease. That would occur because:**

(a) places that currently leave the catchment area would decline; and

(b) people from outside the catchment area would come in to use the child care facilities.

**100. Indeed, he suggested that the number of people coming into the area would equal the number going out. That result is "what we see happening," and would be supplemented by the likely increase in the currently "quite low" participation rate as a result of a new centre in the area where no centre currently exists. In other words, a person who currently is not putting a child in child care would use the new centre. Mr Henry went further to suggest that a child care centre is an important community service that attracts people to live in an area. In his experience, even where developers have built or provided significantly more places than he had anticipated would be needed, there have been high occupancy rates in those areas. In other words, the actual participation rate increased.

101. Mr Henry agreed that there was no survey or other empirical basis for his opinion that the number of children going elsewhere would equal the number of coming in. Rather, "we're just trying to make our best estimate." He stated that there is "a lot of interaction between areas and there is a lot of movement in demand between areas and we do our best to model it."**

**102. As noted earlier, no issue was taken with Mr Henry's experience and expertise. There was some criticism of Mr Henry's methodology, the reliability of his forecasts and the veracity of some conclusions in his report. Broadly speaking, he was criticised for not identifying local conditions that apply in the ACT. Most of the detailed critique came from Dr Abbey. Her key concerns can be summarised relatively briefly.

103. Dr Abbey queried the meaning of "average occupancy rate" because occupancy rates vary over a year. She suggested that relevant data includes how many vacancies there are per centre, and on what days those vacancies occur, rather than the average occupancy percentage.

104. Dr Abbey agreed that an increase in the order of 10,000 people spread across two suburbs, some further developments in parts of Weston Creek, and some thousands of homes under construction or planned (including in Denman) would be relevant to an assessment of the need for child care places in the area, and would indicate a possible increase in demand for them. However, that data would need to be analysed by reference to such things as where people work, and the number of children under five years of age.

105. Although there could be an undersupplied market currently, for various reasons not all parents put their children in the area where they live. For example, Dr Abbey noted that parents use child care services close to their work because they do not have to rush to leave work to pick up their child, they are nearby if the child is injured or unwell or needs breastfeeding and for birthday activities, and they can use driving time to talk with their child. Also, some employers subsidise or support child care near the workplace. So it is an "informed choice" not just a choice based on the lack of appropriate child care close to home. In Dr Abbey's opinion, when Mr Henry was writing about undersupply, he did not take into account family day care, and parents' choice to put children in child care close to work. She also queried his assumption that up to 100 places per day leave the major catchment to utilise places elsewhere, for example near a parent's workplace.

106. According to Dr Abbey, where there are child care centres in an area that are 85% or 87% full, parents have "quite a bit of leeway for care." In other words, with such an average figure, there is "some latitude" for parents to find some day care for their children. Her "secret shopper" enquiries suggested that there were vacancies for children of different ages at child care centres in the catchment area.

107. Dr Abbey also took issue with two other of Mr Henry's statements.**

(a) He stated that in "some" cases new child care centres are seen as attractive alternatives yet, in Dr Abbey's view, they are seen as attractive in "many" cases.

(b) He stated that in many cases well-managed, high quality, not-for-profit centres maintain high occupancy rates and long waiting lists even in markets with new purpose-built entrants, yet Dr Abbey had not found that to be the case. Indeed, she could only recall one such child care centre, and that involves exceptional circumstances that do not apply at the Noah's Ark Centre Rivett.

108. Nikdia Hume submitted that some of those and other criticisms of Mr Henry's evidence were "quibbles" which did not detract from his overall demographic assessment that there is an unmet and increasing demand for childcare in Rivett and its surrounding areas. That assessment is supported by the rapid growth of surrounding suburban areas, with an estimated population of 10,300 in the Molonglo Valley (comprising Coombs and Wright) by 2019 and current approval for construction of 2,900 dwellings in Denman Prospect, as set out in Ms Gallacher's witness statement.[54] It was submitted that, although his estimates are estimates, his evidence should be preferred in the absence of any empirical evidence from witnesses for Noah's Ark.

109. The case for Noah's Ark has been outlined earlier and is clear from the evidence and submissions referred to above. In summary it submits that:

(a) Noah's Ark has conducted and continues to conduct various early learning community programs in furtherance of its objects, including from the Noah's Ark Centre Rivett;

(b) those programs provide benefits to participants which are not provided elsewhere, and hence are of benefit to members of the community who participate in them and to the community generally;

(c) Noah's Ark uses income generated by the Noah's Ark Centre Rivett, and which is surplus to its needs in maintaining that centre, to subsidise the cost of the community programs;

(d) the centre being constructed at Coombs will meet child care needs in the northern part of the catchment area, and there is no present need for a further long day care centre in Rivett or Weston Creek; and

(e) the proposed development will reduce the occupancy rate at the Noah's Ark Centre Rivett and thereby reduce and probably eliminate the level of surplus funds derived from that centre so that Noah's Ark will not be able to maintain its community programs and meet the cost of supporting children with special needs enrolled in the centre. In other words, Noah's Ark would have to reduce and probably cease its community program.

110. The Authority did not provide a detailed analysis of, or make detailed submissions in relation to, the evidence. Rather, it submitted that the suggested effect of the proposed development on the business operations of Noah's Ark is too speculative or remote to constitute a material detriment. That submission is developed more fully in relation to the question of standing, considered later in these reasons the decision.

**111. There are three limbs to the submissions by Nikdia Hume in relation to the evidence summarised above. First, Nikdia Hume submits that the evidence provides insufficient support for Noah's Ark's case. Second, Nikdia Hume submits that, despite identifying the impacts of competition as the basis for its application to the Tribunal, Noah's Ark has not indicated how such a consideration is relevant to the Tribunal when considering the DA under the Territory Plan and the P&D Act. Third, it is doubtful whether Noah's Ark has standing to make the application.

112. The second and third limbs of that submission are considered later in these reasons.

113. As to the first, Nikdia Hume submits that there is insufficient evidence that Noah's Ark provides unique community-based programs and special needs child care, or that such services would be undermined by the DA.

114. In its submission, the argument that provision of Noah's Ark's services would be undermined by the DA cannot be maintained. That argument assumes that:**

(a) Noah's Ark's services are unique;

(b) there is insufficient demand for additional long day care in the Rivett catchment area; and

(c) cross-subsidisation from Noah's Ark's child care centre at Rivett is the only way to provide its particular services.

**115. Nikdia does not dispute that Noah's Ark's extended programs are of merit to the community. However, Nikdia submits that the evidence provided by Noah's Ark is little more than a recital of the evidence of its own staff with minimal independent observation by its expert Dr Abbey, let alone comparison to other services in the market. Furthermore, Noah's Ark failed to expand on its evidence in relation to special needs child care. The evidence appears to be confined to three children with disabilities who have been cared for since 2011(see [49], [51]).

116. In Nikdia Hume's submission, cross-subsidisation from the Noah's Ark Rivett Centre is simply the business model chosen by Noah's Ark. It is also one which assumes (improbably in Nikdia Hume's submission) that no change will ever occur in the child care market. However, Noah's Ark ignores other potential sources of change which may affect its operations, such as:**

(a) a decision by the Government to reopen the Rivett school, or rezone and sell it (with the consequent need for the relocation of Noah's Ark's long day services);

(b) the Board of Management of Noah's Ark adopting a different business strategy, as it has done in the past (such as government funding).

**117. Nikdia also notes that Noah's Ark's current long day care venture is relatively recent (having commenced in 2009) and requires an occupancy rate of 90%, which is well above the accepted profitability norms established by the Productivity Commission.

118. Nikdia points to the evidence from Mr Henry about the ability of boutique, not-for-profit centres to survive in competitive markets which, it submits, was more robust than the pessimistic conclusions of Dr Abbey. Furthermore, Nikdia suggests that there is potential for Noah's Ark to rely and expand upon its well-established brand, and cites an email from a former client to Ms Brennan that spoke with some passion about "another future" for Noah's Ark, specialising in expanded special needs care.[55]

119. In essence, Nikdia submits that it is far from clear how the DA would impact upon the viability of Noah's Ark's extended services. On the other hand, it is clear that if the DA were refused the residents of Rivett would be deprived of an increase in access to child care services, including for children with special needs.**

**120. The question whether and how the proposed development on the subject site would adversely affect Noah's Ark can be answered, although not in precisely quantified terms, by reference to the evidence summarised earlier.

121. There were differences of degree between witnesses about the extent of the current and foreseeable demand for child care places in the catchment area of the subject site. Those differences are understandable when one examines closely the statistical data on which they were based. It is clear that at key steps in his calculations Mr Henry was making certain assumptions, and in his analyses he was drawing on experience outside the ACT. His evidence was much more than an educated guess, and his assumptions and workings were clearly articulated. Nonetheless, the apparent precision of figures in tables in his report belies the uncertainty inherent in predicting not only population trends within the catchment area but also human behaviour on such complex decisions as whether people will use child care facilities, how often they will use them, and which centre or centres they will choose. The differences between the opinions of some witnesses can be attributed partially to different estimates of the number of children whose needs are met and will continue to be met outside that area (especially at centres near parents' workplaces) and/or whether a new child care centre would attract some people from outside the catchment area. Such differences are to be expected given the somewhat speculative nature of estimating current and likely demand for child care facilities in the catchment area surrounding the subject land. We conclude that, although Mr Henry was sufficiently qualified to give his evidence and his evidence was generally credible, Mr Henry tended toward optimism in his estimates of the future demand for child care facilities in the catchment area and the number of child care places that would be used in the foreseeable future.

122. With those cautions in mind, we find on the basis of the evidence that:

(a) having regard to national figures and taking into account the demographics of the catchment area and the data about occupancy rates provided by Ms Brennan and Mr Henry, there is currently a slight oversupply of child care places for that area;

(b) the Noah's Ark Centre Rivett has an occupancy rate at or above 83% which is comparable to other child care centres in the catchment area[56] and within the range at which child care centres are usually able to operate at a profit;

(c) there will continue to be an increase in the population of the catchment area, particularly in the northern suburbs such as Coombs, and that increase will comprise a higher proportion of families with young children than in the more established southern suburbs which have a generally older population;

(d) there will be some increase in demand for child care places in the catchment area as a result of the change in the number and ages of people in the area;

(e) some parents will choose to place their young children in child care outside the catchment area (usually close to where the parents work) even if there are otherwise suitable facilities in the catchment area; and

(f) because there is no evidence that the establishment of new child care centres in or near the subject site would attract any or many children to the catchment area, we are not satisfied that, if one or more new centres were opened, the number of children attracted to centres in the area would offset those using child care facilities outside the area.

123. More specifically, it is clear from Mr Stone's evidence that Kids Club Rivett would provide not only general child care facilities and services but would also provide care for children with a range of conditions, physical disabilities, and additional needs. Having considered that evidence alongside the evidence provided for Noah's Ark (including its special needs focus), we find that the proposed development would be in direct competition with the Noah's Ark Centre Rivett in terms of the range of children it would seek to attract.

124. We accept that Noah's Ark has a good reputation in the community for the nature and standard of child care services it provides and that, as a consequence, it might have a larger catchment area than might be usual for a child care centre. It should be able to operate successfully in a more competitive marketplace. The loyalty and support it has attracted since 2009 is likely to continue. However, having regard to the evidence about what Kids Club Rivett would provide, the proximity of the subject site to the Noah's Ark Centre Rivett and the general evidence about the usual impact that a new child care centre will have on a neighbouring centre (including where the existing centre has older accommodation and facilities), we find that a child care centre on the subject site would attract some people who currently use, or in the future would otherwise have used, the Noah's Ark Centre Rivett.

125. Although it is not possible on the basis of the evidence before the Tribunal to quantify the numbers of children who might be lost by (or not attracted to) the Noah's Ark Centre Rivett, we are satisfied that there would be some reduction and hence a loss of revenue to Noah's Ark. That impact is likely to be increased if other developing or proposed centres in the catchment area proceed.

126. Noah's Ark has a licence to use premises at 79 Bangalay Crescent which seems to be on a monthly basis. The licence provides less security than a licence for a longer term or a lease of the premises used as the Noah's Ark Centre Rivett would offer.[57] However, there was no evidence that the licence will not continue to be renewed, as has been the case for about 18 years. Nor is there any evidence to suggest that the ACT Government intends to reopen the Rivett school, rezone the land or sell it. Consequently, we do not consider that the apparent insecurity of the legal basis for Noah's Ark's continuing to use those premises constitutes a significant impediment to its use and enjoyment of the land. The apparent offer of a new licence in recent months lends support to that conclusion.

127. There was no dispute, and we find, that Noah's Ark finances and provides (in collaboration with other organisations) a distinctive range of community programs that would not otherwise be available. Those programs are valued by disadvantaged, vulnerable and isolated families and their children in the ACT and Queanbeyan. For that reason, the programs provide a benefit to the community and not just the direct participants. We also find that:

(a) most of those programs receive little or no financial support from governments; and

(b) the financial and other support provided by Noah's Ark for those programs is critical, if not essential, for their continuation.

128. The financial statements provided to the Tribunal, particularly the income and expenditure statements, do not separately identify the amounts directed by Noah's Ark each year to individual community programs. Consequently, it is not possible to say by reference only to that evidence how much financial support Noah's Ark provides. We have had to rely on the evidence of Mr McMichael and Mr Wilson for that information. Given the fluctuating annual financial results achieved by Noah's Ark, it seems that in some years the provision of that support led to a net loss in terms of annual income and expenditure. It appears from the evidence provided by Noah's Ark that its operations at Noah's Ark Centre Rivett are not currently sufficiently profitable to sustain the level of financing its community programs it has provided in the past and wants to provide in the future.

(a) the financial support that Noah's Ark provides to community programs is derived from the income (though not always surplus to expenses) received by the Noah's Ark Centre Rivett;

(b) to attain and sustain a level of surplus to provide that financial support, the Noah's Ark Centre Rivett would need an occupancy rate at or above 90%, a rate which it has not sustained in recent years; and

(c) any reduction in enrolments as a consequence of the proposed development reaching fruition would reduce Noah's Ark's income and hence the potential for surplus funds and, although not necessarily threatening the viability of the Noah's Ark Centre Rivett, would reduce further and perhaps eliminate its capacity to support the community programs from its surplus funds.

Does Noah's Ark have standing to bring the application?

130. As noted early in these reasons for decision, there are two threshold issues in this case:

(a) whether Noah's Ark has standing to bring the application; and

(b) whether the Tribunal has jurisdiction to hear the application.

**Having considered the evidence about whether and how the proposed development would (albeit indirectly) adversely affect the community programs operated by Noah's Ark, it is possible to deal with those issues.

131. The question whether Noah's Ark has standing to bring the application is to be resolved by reference to the scheme in sections 407, 408A and 419 and Schedule 1 of the P&D Act. In summary, the section 408A allows an 'eligible entity' for a 'reviewable decision' to apply to the Tribunal for a review of the decision. Section 407 defines:**

(a) 'reviewable decision' to mean a decision mentioned in Schedule 1 column 2 made by a decision-maker; and

(b) 'eligible entity' for a reviewable decision to mean an entity mentioned in Schedule 1 column 3 for the decision.

132. Item 4 of Schedule 1 lists as a 'reviewable decision' a decision under section 162 to approve a development application in the merit track, whether subject to a condition or otherwise. An entity is an 'eligible entity' in relation to such a decision if:

(a) the entity made a representation under section 156 about the development proposal or had a reasonable excuse for not making a representation; and

(b) the approval of the development application may cause the entity to suffer 'material detriment'.

133. Section 419 sets out the scope of, and limits to, the expression 'material detriment'.

material detriment_, in relation to land - an entity suffers material detriment in relation to land because of a decision if - _

(a) the decision has, or is likely to have, an adverse impact on the entity's use or enjoyment of the land; or

(b) for an entity that has objects or purposes - the decision relates to a matter included in the entity's objects or purposes.

(2) However, an entity does not suffer material detriment in relation to land because of a decision only because the decision increases, or is likely to increase, direct or indirect competition with a business of the entity or an associate of the entity.

**134. Both the Authority and Nikdia Hume submit that Noah's Ark does not have standing to bring the application to review the Authority's decisions. They correctly distinguish between whether Noah's Ark has standing and whether Noah's Ark has any legislative basis to challenge the Authority's decisions. In other words, even if Noah's Ark has standing to bring the application, that does not mean that Noah's Ark will succeed. If Noah's Ark has standing to bring the application, it would still have to establish that the application is well founded (an issue dealt with later in these reasons).

135. Although the Authority and Nikdia Hume submit that Noah's Ark lacks standing, their submissions adopt somewhat different reasoning.**

**136. The Authority submits that Noah's Ark does not raise any planning issue. Rather it asserts a future effect on its business operation of direct or indirect competition from the proposed development. As such, Noah's Ark does not meet the standard required of 'material detriment' under section 419 and Schedule 1 of the P&D Act. That section is a 'statute-specific' standing rule that must be applied in this case. There is no occasion for the application of any general law rule. The Authority also submits that, in any event, Noah's Ark does not have a right to protection from competition via the planning and development process.

137. In support of its submissions, the Authority relies on the judgments in Argos Pty Ltd v Corbell & Ors[58] (Argos), Kentucky Fried Chicken v Gantidis[59] (Gantidis), and Jewel Food Stores v Minister for the Environment Land and Planning[60] (Jewel Food Stores).

138. In Gantidis, the subject of the dispute was a decision of the Supreme Court of Victoria disallowing the grant of a permit to use certain land for takeaway food premises. The proprietors of a similar shop in a street adjacent to that land had objected to the grant of the permit. The High Court unanimously allowed the appeal. Stephen J (with whom Gibbs, Mason and Aickin JJ agreed) wrote:**

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.[61]

**139. Barwick CJ wrote that "economic competition feared or expected from a proposed use" was not a planning consideration within the terms of the planning Ordinance governing that matter.[62]

140. In the subsequent case of Jewel Food Stores, Higgins J considered an application seeking a declaration that the proprietors of various supermarkets in the relevant area had a right to lodge objections and make application for review in respect of a decision to approve redevelopment of land (which incorporated Belconnen Fruit Markets) made under the Land (Planning and Environment) Act 1991 (ACT). The question was whether the proprietors were persons "who may be affected" by the approval of the redevelopment. The applicants contended that the prospect of increased economic competition as a result of the carrying out of the proposed improvements to the markets was a relevant effect on them. Higgins J was prepared to accept that there would be some adverse economic effect likely to be created by the proposed expansion of the markets which would be felt by some persons who supplied similar goods and services in the region. However, it was not possible to conclude that the effect would be adverse to any of the applicants in particular.[63]

141. His Honour referred to decisions of the Federal Court, including Australian Foreman Stevedores Association v Crone[64] (Crone) in which Pincus J did not deny that a sufficient economic effect caused by the decision attracted a satisfactory basis for the application under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

142. Higgins J's decision was founded on the evidence before him. He noted that the evidence that the applicants sought to tender which purported to estimate the economic impact of the planned improvements on retailers was "purely speculative as to the level of economic impact on the applicants or any of them."[65] The report did not address the likelihood that the applicants might alter their competitive behaviour so that demand would not divert to the enhanced markets. Such variables as trading hours and cost structures were not considered. His Honour observed that if the cost structure of the enhanced markets was greater than that of the applicants, a directly competing business would not necessarily have an adverse effect on the applicants.

It need hardly be added that neither 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).

Thus, although the applicants have shown that the proposal could cause an economic impact upon them and that it is possible that the impact might be adverse, such an effect is not, in my view, sufficient to be a satisfactory basis for an application. They have merely shown, as in Crone's case, that their economic prospects have become less favourable.

I do not consider the effect to be "sufficient". Indeed, it seems to me to be contrary to the public interest in increased competition to accept the contrary opinion. The applicants were, therefore not persons who were, or could be, objectors.[66]

**144. In Argos, the High Court considered whether the appellants (who included the operators of supermarkets situated near a proposed commercial development) were entitled to seek judicial review of the decision by the Minister to approve a proposal for the new commercial development. Central to the outcome of that case was the provision in the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ACT AD(JR) Act) that a person aggrieved by a decision was entitled to apply to have the decision reviewed on one or more specified grounds. A 'person aggrieved' by the decision included a person whose interests are adversely affected by the decision. As French CJ and Keane J put it, the test for standing was "expressed in that Act."[67] The High Court held that, by reason of the likely loss of profitability, the supermarket operators were persons aggrieved by the decision and therefore were entitled to seek its review.

145. In their reasons for judgment, French CJ and Keane J noted that the decision of Higgins J in Jewel Food Stores was based on the conclusion that the evidence at the level of economic impact resulting from the decision sought to be challenged was "purely speculative" and did not show that a competing business would have an adverse effect on the applicants' business. That conclusion was "critical" to Higgins J's decision.[68] Their Honours also noted that in Crone's case,[69] Pincus J denied standing to applicants who could not show that the success of the challenge to the decision in question would be a practical benefit to them.

146. Moving from the ACT AD(JR) Act to the ACT planning regime relevant to that case, French CJ and Keane J stated that, as also under the general law, "no trader has an interest in hindering competitors or being protected from competition. It is a matter of public policy that no trader has an interest in being protected from 'competition per se' or 'mere competition'."[70] Their Honours continued:**

Neither the Planning Act nor the Territory Plan evinces any intention to permit decision-makers to accommodate private traders' desires to be protected from competition per se. In this case, however, the second and third appellants demonstrated, as a matter of fact, that their businesses will suffer a loss in profitability as a result of the decision which they sought to challenge. And if their challenge to the lawfulness of the decision proves to have merit, the consequences of the competitive pressures resulting from the decision they seek to challenge can properly be described as a situation of "unfair competition", rather than mere competition.[71]

**147. The Authority distinguishes the approach to standing taken in those cases from the circumstances of the present case where section 419 of the P&D Act provides the statute-specific standing rule that must be applied.

148. Also in the Authority's submission, the suggested effect of the proposed development on Noah's Ark's business is too speculative or remote to constitute a material detriment.**

149. Nikdia Hume's submission starts with and goes beyond the statutory criteria for standing. It notes that Item 4 of Schedule 1 of the P&D Act states which eligible entities have standing to apply for a review of a decision under section 162 to approve a development application in the merit track, whether subject to a condition or otherwise. Column 3 of Item 4 states that an entity will only be 'eligible' if:

(a) the entity made a representation under section 156 about the development proposal or had a reasonable excuse for not making a representation; and

(b) the approval of the development application may cause the entity to suffer material detriment

**150. Nikdia Hume submitted that Noah's Ark is an 'entity' for the purpose of section 419. By using that word, section 419 cast a wide net to include not-for-profit bodies (such as Noah's Ark)[72] and commercial entities. They all operate in the same marketplace in competition with each other.

151. Although Noah's Ark made a representation under section 156, Nikdia Hume submitted that it was unlikely that Noah's Ark has suffered a 'material detriment' as defined in section 419 of the P&D Act. Although section 419(1) provides that an entity suffers 'material detriment' in relation to land because of the decision if the decision has, or is likely to have, an adverse impact on the entity's use or enjoyment of the land, section 419(2) states that an entity does not suffer material detriment in relation to land because of a decision "only because the decision increases, or is likely to increase, direct or indirect competition with a business of the entity or an associate of the entity."

152. Nikdia Hume submits that Noah's Ark's objection to the DA is squarely founded upon its concerns that the decision will increase, or be likely to increase, direct or indirect competition with Noah's Ark. Because such detriment is expressly excluded under section 419(2), Noah's Ark does not come within the scope of section 419. Nikdia Hume also describes as irrelevant the contention by Noah's Ark that it will lose the profits that would been used for another purpose.

153. Nikdia Hume also points to the 'Statement of Strategic Directions' of the Territory Plan, particularly the following principle in relation to economic sustainability:**

1.12 Planning policies will facilitate the widest possible range of commercial, retail, industrial, rural, tourism, and other forms of economic activity in order to promote new investment and a more diversified economy, to underpin employment growth, and to respond to changing economic opportunities.

**154. Nikdia Hume emphasises the reference there to "widest possible range" of economic activity, the promotion of "new investment and a more diversified economy." It notes that, as Mr Henry stated, it is Commonwealth Government policy that child care centres be encouraged because they promote more participation in the workforce of parents of young children when child care is provided.

155. Nikdia Hume also relies on the following principle in the Statement of Strategic Directions in relation to social sustainability:**

1.18 Provision will be made for a comprehensive range of readily accessible community ... facilities, distributed according to the varying needs of different localities and population groups. ...

**156. It submits that not only is Noah's Ark wrong in law in contending that its standing to bring this application is not precluded by section 419(2), the corollary of Noah's Ark's submission is that Rivett and the surrounding area (uniquely in Canberra) would be denied the same sort of access to choice, competition and other advantages from the provision of a multitude of child care facilities in the area. That would be contrary to relevant paragraphs of the Statement of Strategic Directions and to the general law, as illustrated by the statement of French CJ and Keane J in Argos that it is a matter of public policy that no trader has an interest in being protected from "competition per se" or "mere competition."[73]

157. Nikdia Hume also submits that Noah's Ark's right to occupy the premises of the Noah's Ark Centre Rivett is tenuous, being limited to a month-to-month non-exclusive license, apparently for a part of the building other than that currently occupied. In other words, it has no right to occupy its current premises or, at best, could be evicted with one month's notice.**

**158. Noah's Ark submits that there is no present need for a further long day care centre in Rivett or Weston Creek and that, for so long as there is no need for extra child care in the catchment area, the status quo should remain. Noah's Ark is not asking to be protected forever from competition. It is only when circumstances change and a need emerges that, if the challenge is made to any new development, the Tribunal would have to engage in a balancing exercise. At that point, the matters listed in section 120 of the P&D Act (and possibly paragraph 1.12 along with paragraph 1.23[74] of the Statement of Strategic Directions in the Territory Plan) might be relevant. Counsel for Noah's Ark submits that, to the extent that paragraph 1.12 of the Statement of Strategic Directions is relevant, it refers to "changing economic opportunities." That is a dynamic situation, not one that necessarily prevails at all times. Circumstances might change in the future, but for the present it is appropriate for Noah's Ark to remain.

159. He also submits that Noah's Ark is not asking to be protected from "competition per se" or "mere competition."[75] In this case, the competition brings with it other implications by impacting upon another person or entity, giving it a different character. In the present circumstances it is Noah's Ark (working in collaboration with other organisations) that delivers the community programs both at the Noah's Ark Centre Rivett and elsewhere.

160. Addressing the operation of section 419(2) of the P&D Act, Noah's Ark submits that the word 'only' should be read adopting its ordinary English meaning of 'without others' or 'nothing else besides'. On that basis, the subsection means that an entity does not suffer 'material detriment' in relation to land where the decision increases competition without other factors or where there is nothing else beside. That reflects the principle in Gantidis. If nothing more than competition impacts upon an entity then market forces are allowed to play unrestricted. There is no planning consideration and the party disputing the decision to approve the development has no standing. However, Noah's Ark submits, if the impact is something more than a result of mere competition, then standing is not precluded by section 419(2).**

161. The applicable law on this question is the scheme set out in sections 407, 408A and 419 and Item 4 of Schedule 1 of the P&D Act. For Noah's Ark to have standing to bring this application for review:

(a) it must be an entity;

(b) it must have made a representation under section 156 about the development proposal; and

(c) the approval of the development application may cause Noah's Ark to suffer 'material detriment'.

**162. Noah's Ark is an entity and it made a representation under section 156.

163. Consequently, for section 419 to apply in this case, Noah's Ark would have to establish that it would suffer "material detriment" (as that expression is defined) in relation to land because the decision to approve DA 201528713:**

(a) is likely to have an adverse impact on Noah's Ark's use or enjoyment of the land at 79 Bangalay Crescent; or

(b) relates to a matter included in Noah's Ark's objects or purposes.

**164. However, Noah's Ark would not suffer 'material detriment' as defined if it would suffer material detriment by reason only that the decision increases, or is likely to increase, direct or indirect competition with a business of Noah's Ark or an associate of Noah's Ark.

165. The words of section 419 govern the outcome in this case. It is not to the point that other statutes, such as judicial review legislation considered in other cases, gave a broader basis for standing to bring different proceedings in similar circumstances. The threshold standing issue in this case has to be decided by reference to the specific words of the P&D Act. As Refshauge ACJ wrote in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority),[76] there is "no link between" section 419 of the P&D Act and the definition of a person aggrieved under the ACT AD(JR) Act. It goes without saying that one must be careful to identify the statutory context in which other judicial decisions were made before seeking to apply what appear to be statements of principle to circumstances governed by section 419.

166. To the extent that general legal principles are relevant, it is apparent that planning laws do not protect businesses from competition where the proposed development will not result in an overall adverse effect on the extent and adequacy of facilities (in this case, child care facilities) available to the local community. Those principles, developed or recited in relation to a range of other legislation, serve only to reinforce what is apparent from the words of section 419(2).

167. That conclusion is consistent with paragraph 1.12 of the Statement of Strategic Directions in the Territory Plan that:

Planning policies will facilitate the widest possible range of commercial, retail, industrial, rural, tourism, and other forms of economic activity in order to promote new investment and a more diversified economy, to underpin employment growth, and to respond to changing economic opportunities.

168. The evidence of the likely effect of the decision to approve DA 201528713 on the use or enjoyment by Noah's Ark of the land at 79 Bangalay Crescent was considered in detail earlier in these reasons for decision. It is sufficient to note here that this Tribunal concluded that:**

(a) a child care centre on the subject site would attract some people who currently use, or in the future would otherwise have used, the Noah's Ark Centre Rivett;

(b) as a consequence of the reduction in numbers of children at the Noah's Ark Centre Rivett there would be some loss of revenue to Noah's Ark; and

(c) although the reduced income of the Noah's Ark Centre Rivett would not necessarily threaten its viability, it would reduce further and perhaps eliminate the capacity of Noah's Ark to support community programs from its surplus funds.

**169. Accordingly, we accept that the approval of the DA "may cause"[77] Noah's Ark to suffer detriment in the sense that the decision is likely to have an adverse impact on its use of the land at 79 Bangalow Crescent to operate the Noah's Ark Centre Rivett as profitably as it has done in some previous years. Arguably, the approval of the DA also relates (albeit indirectly) to a matter in Noah's Ark's objects, in the sense that Noah's Ark could have less capacity to subsidise community activities consistently with its objects.

170. We are not persuaded to adopt Noah's Ark's submission about the limited operation of 'only' in section 419(2). As we understand the submission, the interpretation would mean that if the party objecting to development approval in favour of a competitor could show some other collateral or consequential implications for the objector of the decision (for example, because the objector would not have sufficient profits to engage in some community-oriented activities other than its business) it is not prevented from seeking a review by the Tribunal of the decision. It is difficult to see how the use or uses to which an entity puts its profits or surplus can determine whether that entity is immune from exclusion to challenge the decision to approve a development that would increase competition with that entity's business. Section 419(2) refers to the effect of the decision on competition with a business of an entity, not the use to which the profits of that business are put.

171. We conclude that Noah's Ark will not suffer material detriment for some reason other than because the decision increases, or is likely to increase, direct or indirect competition with Noah's Ark's business at the Noah's Ark Centre Rivett. In the words of section 419(2), it will 'only' suffer material detriment for that reason.

172. Consequently, the exception to or qualification of the definition of 'material detriment' contained in section 419(2) of the P&D Act applies in the circumstances of this case.

173. It follows that Noah's Ark is not eligible to apply to the Tribunal for a review of the decision by the Authority to approve DA 201528713.**

Does the ACAT have jurisdiction to hear the application by Noah's Ark?

**174. Given the conclusion that Noah's Ark lacks standing to apply for the review of the decision to approve DA 201528713, it is not necessary to decide whether (if Noah's Ark had standing) the Tribunal would have jurisdiction to hear the application.

175. However, it is clear from the way the case was argued that the parties sought a ruling from the Tribunal as presently constituted on this matter. We agree to express our conclusions because, if we are wrong in the decision about standing, then it is necessary to decide the other threshold issue.

176. This aspect of the case involves the interpretation and interaction of sections 119, 120 and 121 of the P&D Act, which are set out in Attachment A to these reasons for decision.

177. Only parts of these sections are, or were submitted to be, relevant to this case. The focus of the submissions was on the provisions that:**

(a) development approval must not be given for a development proposal in the merit track unless the proposal is consistent with the "relevant code" (as defined)[78] (section 119(1)(a));

(b) development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 unless the person deciding the application is satisfied that any applicable guidelines and any realistic alternative to the proposed development have been considered and the decision is consistent with the objects of the Territory Plan (section 119(2));

(c) in deciding a development application for a development proposal in the merit track, the decision-maker "must consider...the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts" (section 120(g));

(d) if there is a right of review under chapter 13 of the P&D Act in relation to a decision to approve an application for development approval for a development proposal in the merit track, "the right of review is only in relation to a decision, or part of the decision, to the extent that -

**(i) the development proposal is subject to a rule and does not comply with the rule; or

(ii) no rule applies to the development proposal" (section 121(2)).

178. Written and oral evidence in relation to some of these matters was given:**

(a) on behalf of the Authority by Dominic Riches, a Development Assessment Officer, with the Environment, Planning and Sustainable Development Directorate who is a delegate of the Authority, but who was not the assessing officer for DA 201528713;[79]

(b) on behalf of Nikdia Hume by Rebecca Gallacher, a town planner who is the Director of Town Planning at Knight Frank Town Planning, a specialist town planning consultancy.[80]

The operation and implications of section 119 of the P&D Act

**179. The Code that applies in relation to the proposed development is the CZDC. It is the 'relevant code'.

180. The Introduction to the CZDC states that the code has a number of parts, each part a number of elements and each element one or more rules. Each rule has an associated criterion (unless the rule is mandatory). Rules provide quantitative, or definitive, controls. In contrast, criteria are chiefly qualitative in nature.[81]

181. Element 2 of the CZDC ('Use') is intended to "ensure that community and recreation facilities remain available to the community." In relation to 2.1 "Existing community and recreation sites," Rule 2 states "A development proposal does not reduce the range of community or recreation facilities available." Criterion 2 states "A proposal that reduces the range of community or recreation facilities available demonstrates through a social impact assessment that there is enough land or sufficient other facilities in the locality to meet anticipated demand."

182. In his witness statement,[82] Mr Riches wrote that he had reviewed the relevant codes of the Territory Plan and concluded that economic viability or future business capabilities are not a consideration of the Territory Plan. He acknowledged that the issues raised by Noah's Ark relating to the reduction of community services "does somewhat relate" to Rule 2 Criterion 2 of the CZDC. Nonetheless, in his opinion, DA 201528713 meets the requirements of Rule 2 "as the rule is referring to reducing the range of community facilities." The intention of this rule is to retain existing land and facilities already allocated for community use, and not reduce them by replacing them with other uses. He explained that DA 201528713 is for a child care facility on a vacant site which has not been occupied for some time. The registered Crown Lease does not currently include the use for a community facility and is located in a zone that would otherwise be used for a range of commercial activities. Therefore, in his opinion, the proposed development would increase the opportunity for community use and would not reduce the range of community or recreational facilities on the site.

183. The Authority submits that Rule 2 does not require that a development add to the range of such facilities, only that it does not reduce the range. In the circumstances of this case, the proposed development complies with Rule 2 of the CZDC because it does not replace any existing community or recreation facility, nor does it reduce the range of facilities, but it adds another facility similar to the existing Noah's Ark facility.

184. Like the Authority, Nikdia Hume states that Rule 2 is the only rule under the CZDC which might be relevant to Noah's Ark's case.[83] Nikdia Hume refers to the expert evidence of Ms Gallacher as a town planner that Rule 2 is directed towards development applications which would displace an existing community or recreational facility on the land that is the subject of the DA. Rule 2 does not contemplate development competition between facilities or sites.

185. In her evidence, Ms Gallacher stated that 2.1 'Existing community and recreation sites' confirms that this control is only relevant to the assessment of development proposals on existing community and recreation sites. It does not contemplate community and recreational sites outside commercial zones, nor does it contemplate sites which are not already used for these purposes (such as the subject site). Further, this control does not contemplate development competition between facilities or sites. The development of the subject site will not reduce the range of facilities available on that site.[84]

186. Accordingly, Nikdia Hume highlights the reference to "Existing" community and recreation sites in 2.1 and the fact that Criterion 2 enables a development application to demonstrate that there is either enough land or sufficient other facilities in the locality to meet anticipated demand for community or recreational facilities. That statement implies that the development application in question must be displacing an existing community use site, i.e. for commercial/non-community use ends.

187. In this case, the subject site is vacant. The Authority's assessment report assessed the DA as being compliant with Rule 2 on the basis that it would increase the provision of community facilities, as "the site was an existing service station which has been removed. It is proposed to construct a Child care centre."

188. In relation to criterion 2 of CZDC, the Authority also notes that:**

(a) because the proponent regarded the proposal as rule-compliant (CT 315), a social impact assessment was not provided;

(b) as to "enough land" there are several vacant blocks in the surrounding Community Facility zone (Blocks 11, 21 and 22: see aerial photographs T 178-179); and

(c) as to "sufficient ... facilities ... to meet anticipated demand," Noah's Ark contends (albeit speculatively) that there may be some oversupply of child care places as a result of the proposal.

**189. We are satisfied that the relevant rule has been complied with, and the proposed development is consistent with its relevant code. Accordingly, section 119(1)(a) is satisfied.

190. We are satisfied on the evidence that section 119(2) was satisfied by the inclusion of conditions.

191. Having concluded that the development proposal is consistent with the relevant code, the question arises whether the Tribunal has jurisdiction to go further. If the Tribunal has jurisdiction to consider the issues set out in section 120 then (under that section) as the decision-maker on review, it "must consider" them where relevant. If section 121(2) denies that jurisdiction, then the Tribunal cannot consider these issues.**

The operation and implications of section 121 of the P&D Act

192. It is necessary to consider the operation of section 121 because, Nikdia Hume and the Authority submit, the Tribunal's consideration of matters under section 120 in this case is excluded by section 121(2). That section applies where an applicant has standing to bring the application for review of a decision. The right of review is only in relation to the decision, or part of the decision, to the extent that:

(a) the development proposal is subject to a rule and does not comply with the rule; or

(b) no rule applies to the development proposal.

193. The Note to Item 4 of Schedule 1 of the P&D Act repeats that a decision under section 162 is reviewable only to the extent that the development proposal:

(a) is subject to a rule and does not comply with the rules; or

(b) is not subject to a rule (see section 121(2)).

194. Because there are some differences in the legal arguments advanced separately by Nikdia Hume and the Authority, it is appropriate to outline each submission.

195. Nikdia Hume describes section 121 as a "difficult" section. It relies on the following statement of the Tribunal in Mason and ACT Planning & Land Authority and Ors[85] (Mason):

1. The Tribunal does not have the same responsibility as the original decision maker in relation to approval or otherwise of the DA. While it is bound by the prohibitions set out in s 119 of the Planning Act, it is not able to have regard to the matters set out in s 120 ... Section 121(2) of the Planning Act makes it clear that any review is to be limited to the extent that the proposed development complies with the relevant Rules and Criteria. If a Rule is complied with, then the DA cannot be disapproved by the Tribunal on that aspect of the proposal, even if it considers that the associated Criteria are not fully satisfied or that the Zone's general objectives have not been achieved.
2. Nevertheless, the Tribunal is entitled to satisfy itself from the evidence given whether or not a Rule has been complied with; it is not obliged to accept the decision of the original decision maker.
3. If it is established that a Rule has not been satisfied, or if there is no Rule, then the Tribunal is free to consider the extent to which the proposal satisfies the Criteria and, if it concludes that any of the Criteria are not satisfied, then it may set aside and approval of the proposal or impose conditions that will overcome the deficiencies identified.

196. Nikdia Hume notes that, on appeal from Mason,[86] the Appeal Tribunal relied on Thomson v ACT Planning and Land Authority[87] (Thomson) in which the Tribunal quoted that passage from Mason and had regard to the comments of Mr Andrew Barr MLA, when presenting the Planning and Development Bill 2006 to the Legislative Assembly, that "if a design feature fully complies with the relevant rule, then it cannot be reassessed on appeal."[88] Affirming Thomson and Mason, the Appeal Tribunal wrote that the decision in Thomson:

confirms that the Tribunal's jurisdiction to review decisions about development proposals in the merit track is limited by section 121(2) of the Planning Act and that the limiting factor is compliance with a relevant rule. If a development proposal complies with a relevant rule, the Tribunal cannot review the decision to approval (sic) the proposal on that point.[89]

**197. Nikdia Hume also refers to, but is critical of, the subsequent decision of the Tribunal in Glass v ACT Planning and Land Authority and Anor[90] (Glass) in which the Tribunal concluded that it had jurisdiction to consider the objectives of the zone where development is approved to occur, "subject to the constraint that where a development is subject to a rule concerning an issue or point and is compliant with that rule the Tribunal cannot further consider the issue or point."[91] In Nikdia Hume's submission, the Tribunal was wrong to characterise section 121 in that way. Rather, it submits, section 121 is intended to limit consideration solely to qualitative (but mandatory) considerations of criteria under section 119, not to discretionary considerations under section 120.

(a) in considering the DA the Tribunal is limited to a consideration of matters under section 119 only;

(b) the relevant rules have been complied with; and

(c) hence, the discretionary considerations under section 120 are irrelevant to an application for review of an approved development application.

199. The Authority submits that the proposed development complies with CZDC Rule 2 which, as noted earlier, deals with development proposals that may "reduce the range of community or recreation facilities available." That Rule does not require that a development add to the range of facilities, only that it not reduce the range. The proposed facility is similar to the Noah's Ark Centre Rivett and so would add another such facility, rather than reduce the range of facilities. There could be no suggestion that the Rule is not met. The Authority submits that if the proposal complies with Rule 2 then, by operation of section 121, it is not open to the Tribunal to review the part of the decision relating to the range of community or recreational facilities.

200. The Authority also submits that the Rule operates in relation to 'facilities' as distinct from the particular mix of sub-operations or goods or products that might be used by a particular operator of a facility. This case is not about the loss of a facility but a change to the mix of business operations within the facility, one of which is profitable (i.e., the Noah's Ark Centre Rivett) and others which are run at a loss. According to Mr Riches, the Authority does not consider the specifics of each business that is a permitted use (such as the mix of specific products or services they may offer) when determining DAs, and the Territory Plan and the P&D Act do not include any provisions in relation to protection from competing businesses.[92] The Authority submits that the Tribunal's jurisdiction is to examine whether or not the matter complies with the Rule. It does not descend to the sub-facility level.

201. The Authority further submits that, in any event, the mix or location of permitted uses in the zone is generally not reviewable by the Tribunal. The Territory Plan does not attempt to prescribe the particular mix or location of permitted uses in a zone. It does not require the decision-maker for a DA to decide whether one, two or three child care centres (or one, two or three shops or restaurants) are appropriate in a Local Centre. If the proposed development is a permitted use in the zone, as is the case here, then, subject to the considerations in section 120 of the P&D Act, the Territory Plan leaves such commercial decisions to the market.

202. The Authority also submits that (contrary to the submission put by Nikdia Hume) there is scope for the Tribunal to entertain matters set out in section 120 in certain circumstances. That argument proceeds on the basis that:**

(a) the case concerns a decision to approve an application;

(b) there are several categories of decision to approve an application for which a right of review is conferred by the P&D Act;

(c) section 121(2) refers to a right of review under Chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track;

(d) sections 408 and 409 (in Chapter 13) contain standard provision conferring on eligible entities the right to apply to the Tribunal for a review of certain decisions;

(e) section 121 qualifies that general conferral of jurisdiction;

(f) Schedule 1, headed 'Reviewable decisions, eligible entities and interested parties', includes:

• (i) Item 3, which allows an applicant for development approval to apply to the Tribunal for review of a decision under section 162 to approve a development application subject to a condition or to refuse to approve an application; and

• (ii) Item 4, which allows certain other entities to apply to the Tribunal about an approval, including an approval subject to conditions;

(g) if a condition on a development approval relates to a matter listed in section 120, a developer who wishes to appeal against that condition may apply to the Tribunal by way of section 121(2)(b) because no rule applies to the development proposal (see Glass).[93]

**203. However, in this case, there is a rule and the proposal complies with that rule. Noah's Ark seeks to come to the Tribunal via section 120(g), but that is precluded by section 121.

204. Counsel for Noah's Ark was content to agree with the Authority's submissions generally in relation to section 121(2). He noted that subsection (2) refers to rules and does not mention criteria, yet it seemed to be accepted by the other parties that the subsection does not preclude the right to apply for a review of a decision involving criteria. Neither criteria nor section 120 are mentioned in section 121(2). In his submission, it makes no sense that the former is allowed to give rise to an application, but the latter is not.

205. He referred to the decision in Baptist Community Services v ACT Planning and Land Authority and Ors[94] in which the ACT Court of Appeal rejected the Authority's argument that a proposal in the merit track must not be approved if it is inconstant with a "relevant zone" objective, and the appellant's submission that a proposal in the merit track must be approved if it is code-compliant.

206. The Court of Appeal continued:[95]

This in our view leaves s 120 open to being interpreted, according to its terms, as giving a discretion to approve or reject a proposal that is code-compliant (and therefore not required to be rejected under s 119), such discretion being exercisable only after consideration of the matters set out in paragraphs 120(a) to (f)[96] (to the extent that they are relevant to a particular proposal). That is the alternative submission put by ACTPLA, and is in our view the only meaningful way in which to interpret s 120.

207. Although counsel acknowledged that section 121 was not relevant to that appeal,[97] he submitted that the decision leaves no room for any conclusion other than that, in the Court of Appeal's view, there is discretion to approve or reject a proposed act that is compliant with the relevant code.

208. The scope and operation of section 121(2) of the P&D Act has been, and continues to be, the subject of debate before the Tribunal.

209. Nikdia Hume relies on the statement of the original Tribunal in Mason quoted at [195]. However, that statement has to be considered in light of subsequent Tribunal decisions in Thomson and Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd and Galeotti Holdings Pty Ltd (Rudder).

210. Like the present case, Thomson concerned an application to review a decision by the Authority to approve a DA with conditions. The Authority contended that the Tribunal's jurisdiction to review the DA was limited by section 121(2) of the P&D Act in the sense that, because of section 121(2):

(a) the scope of review that is permissible by the Tribunal is limited to the extent to which the development proposal which accompanied the DA did not comply with a relevant rule; and

(b) matters in relation to which the original proposal did comply with the relevant rule are not subject to review by the Tribunal.[98]

211. Further, the Authority submitted, the Tribunal's power to review the application was limited to any failures to comply with the relevant rules under the Code and not to the consideration of matters listed in section 120, except to the extent that the general provisions of section 120 do not address the same issues as the specific rules.[99]

212. The Tribunal referred[100] to the ACAT Act for the propositions that the Tribunal may only exercise such jurisdiction as is conferred upon it by an authorising law[101] and that the right under an authorising law to make an application to the Tribunal is subject to any conditions stated in the authorising law.[102] The P&D Act was the relevant "authorising law". The introduction to the relevant Code controls are expressed as rules (which are generally definitive and quantitative) and criteria (which are qualitative). The Tribunal described as "noteworthy" that the Authority has additional obligations under section 120 when considering development applications in the merit track. In particular, it must consider a list of matters set out in section 120.[103]

213. As noted earlier, the Tribunal quoted[104] from the speech of Mr Barr introducing a government amendment to the Bill that "if a design feature complies with the relevant rule, then it cannot be reassessed on appeal." The Tribunal referred to the "disparity between the partial rights of review" that the Tribunal can exercise under section 121(2) of the P&D Act and the Authority's obligations under section 120.[105] The Tribunal also stated that the ambit of the partial merits review "may be very narrow" given that the Tribunal's jurisdiction "may only be invoked by a breach of the Code rules and the Code rules are generally definitive and quantitative."[106]

214. The Tribunal quoted, apparently with approval and without qualification, the statement at paragraph [29] of the differently constituted Tribunal's decision in Mason (quoted at [195]). The Tribunal in Thomson seemed to accept that the limits imposed by the P&D Act on the scope of its review allowed it to consider "only a sub-set of the matters required to be considered by [the Authority] as the initial decision maker." In particular, it could not take into account the factors listed in section 120 when reconsidering the approval decision.[107]

215. Much of the discussion in the reasons for decision in Thomson was devoted to the operation of section 121(2) and the operation of the Human Rights Act 2004, particularly the sections of that Act referring to privacy and reputation and the right to a fair hearing,[108] because the Tribunal as a public authority must act consistently with human rights.[109] The Tribunal considered in some detail whether the limit to the right of a fair hearing[110] created by section 121(2) was reasonable. The Tribunal decided that it was reasonable in terms of section 28 of the Human Rights Act.[111]

216. The Tribunal stated that the statutory rights of the applicant in Thomson "only extend to partial review in circumstances where there is either no rule or where the rule has not been complied with."[112] Having decided the Human Rights Act issues, the Tribunal addressed "the aspects of merits review which remained permissible after the carve-out created by" section 121(2) of the P&D Act,[113] namely whether the proposed development complied with two rules of the relevant Code.

217. The Tribunal agreed that where a rule was complied with, the effect of section 121(2) was that the Tribunal was precluded from reviewing that aspect of the proposed development.[114] However, the Tribunal proceeded to make some comments on the issue and recommended action that it was precluded from including as a condition of approval.

218. In summary, the Tribunal as constituted in Thomson[115] proceeded on the basis that the ambit of section 121(2) as described by a differently constituted Tribunal in Mason[116] was correct, and dealt with the Human Rights Act issues and the DA issues in that case accordingly.

219. After the decision in Thomson, the Appeal Tribunal in Rudder first dealt with a ground of appeal that the original Tribunal in Mason erred in holding that it did not have the same responsibility as the original decision-maker in relation to the approval or otherwise of the DA and that it was not able to have regard to the matters set out in section 120 of the P&D Act. At the hearing, counsel for the appellant submitted that, while the original Tribunal was correct in stating that the Tribunal's responsibility on these matters is different from that of the original decision-maker, the original Tribunal made a mistake when it said that reviews are limited to the extent that the proposed development complies with the relevant rules and criteria. Counsel for the Authority (and counsel for the developer) agreed that this part of the original Tribunal's analysis was not correct. However, it was merely a matter of loose expression, which did not constitute an appealable error and on which the original Tribunal had not acted.

220. In that context, the Appeal Tribunal qualified and overruled aspects of the decision in Mason about the operation of section 121, stating that:**

(a) when the original Tribunal referred to the "responsibility" of the Tribunal it was referring to the Tribunal's jurisdiction in these matters;[117]

(b) the Appeal Tribunal accepted and adopted the Tribunal's decision in Thomson, which confirmed that the Tribunal's jurisdiction to review decisions about development proposals on merit track is limited by section 121(2) and the limiting factor is compliance with a relevant rule. If a development proposal complies with the relevant rule, the Tribunal cannot review the decision to approve the proposal on that point;[118]

(c) however, compliance with relevant criteria does not limit the Tribunal's jurisdiction (and hence the original Tribunal's statement was incorrect in so far as it referred to compliance with relevant criteria as a limitation on the Tribunal's jurisdiction).[119]

**221. The Appeal Tribunal then considered the nature of appeals under the ACAT Act and noted the general principle that not every error of fact or law should lead to the setting aside of a decision of an original Tribunal.[120] The Appeal Tribunal stated that, as a general rule, it should only set aside the original decision "if it is satisfied that the error was so material that it affected the conclusion reached, or where allowing the decision to stand despite the error would otherwise cause a miscarriage of justice."[121]

222. The Appeal Tribunal concluded that the original Tribunal did not act on its misstatement of the effect of section 121(2) of the P&D Act. Rather, the Appeal Tribunal highlighted the extent to which the original Tribunal reviewed the Authority's decision in so far as that decision related to whether the development proposal complied with relevant criteria, such as the considerations in section 120 of the P&D Act.[122] Because the other grounds of appeal were not made out, the appeal was dismissed.

223. The Tribunal in Glass[123] accepted the submission of the Authority that the Tribunal must consider the matters set out in section 120 of the P&D Act and address them where relevant, except that, where the particular part of the development complies with the rule, the Tribunal cannot review it on the basis that it is inconsistent with an objective.

224. The Tribunal reached that conclusion for three reasons:[124]**

(a) because the passage in Mason on which the applicant relied was overruled on appeal by the Appeal Tribunal in Rudder which interpreted section 121 in a manner consistent with the position taken by the Authority in Glass;

(b) if the legislature intended to confine the Tribunal's jurisdiction on review to consideration of whether applicable criteria are met, it could have easily said so, but instead, when no rule applies, the Tribunal's jurisdiction stated in section 121(2)(b) is at large; and

(c) an interpretation about the operation of section 121(2) which causes compliance with a rule concerning a point (i.e., the subject of the rule) to be determinative of the point, but otherwise places the Tribunal in the same position as the Authority, should be preferred where the Tribunal's overarching function is de novo review.

**225. Accordingly, the Tribunal in Glass concluded that it had jurisdiction to consider the objectives of the zone where the development is approved to occur (as listed in section 120(a)), subject to the constraint that where a development is subject to a rule concerning an issue or point and is compliant with the rule the Tribunal cannot further consider the issue or point.[125]

226. We have carefully reviewed the decisions in Mason, Thomson, Rudder and Glass. By giving primacy to the relevant sections of the P&D Act, we have concluded that, in order to invoke the jurisdiction of the Tribunal, an entity which has a right to review under Chapter 13 in relation to a decision or part of a decision must:**

(a) identify the decision, or part of a decision, to which the right to review applies; and

(b) identify the rule to which the development proposal is subject and with which it does not comply; and/or

(c) to the extent that no rule applies to the development proposal, identify the criterion or criteria that apply to that proposal and with which it does not comply.

**227. Our conclusion in (c) is a necessary consequence of reading section 121(2)(b) in light of the relevant code referred to in section 119(1)(a). Where a rule applies and is met there is no need to consider the criterion or criteria next to that rule. Where no rule applies to the development proposal, the decision is made by the decision-maker by reference to the relevant criterion or criteria.[126] The decision-maker's discretion is not at large. Nor is the Tribunal's merits review jurisdiction.

228. That interpretation of section 121(2)(a) and (b) gives effect to, or is supported by, the words "only ... to the extent that." These are words of limitation. As differently constituted Tribunals have stressed, section 121(2) is meant, and is expressed, to apply in limited circumstances.

229. In our view, section 121 sets out the limited circumstances in which an eligible entity can ask the Tribunal to conduct a merits review of the Authority's decision to approve a DA. It governs the decision, or part of the decision, that can be the subject of a merits review. However, section 121 does not expressly proscribe the powers that the Tribunal can exercise when conducting the review.

230. If an eligible entity can demonstrate that the requirement of section 121(2)(a) or section 121(2)(b) is met, the role of the Tribunal is to conduct a merit review of the Authority's decision to approve the DA. At that point, the Tribunal is the decision-maker. It would be inconsistent with this scheme of decision-making to conclude that, at that point, the Tribunal cannot consider the matters listed in section 120 in the way that the Authority, as the original decision-maker, was required to do.

231. That interpretation conforms with the approach to statutory interpretation in Australia. Writing extra-judicially, Middleton J has noted that:[127]**

the High Court of Australia by its actual analysis ... has indicated the current approach to statutory interpretation involving the use of text, context and purpose. This approach to statutory interpretation is based upon various assumptions and a basic common sense approach to interpreting a statute. ...

The starting point should always be to look at the words, their context, and the purpose of the legislation, then applying that to produce a result that is both fair and workable in the particular fact situation you have before you. In addition, a judge should also recall, having regard to the common law principles of precedent, to be mindful of the application of the interpretation of the statute to other cases.

232. In particular, in our view, the interpretation of section 121(2) which we have adopted:

(a) flows directly from the text of that subsection;

(b) fits in the context of section 119 and section 120 as well as, more broadly, the provisions in Chapter 7 for different prerequisites for review of decisions in the code track[128] and the impact track[129] and the provisions in Chapter 13 (review of decisions);

(c) is consistent with the purpose of the P&D Act as set out in section 6 (Object of the Act), and the extract from the speech of Mr Barr quoted in Thomson.[130]

**233. In this case, Noah's Ark did not identify a rule or a criterion with which, in its submission, the decision to approve the DA, or part of that decision, did not comply. Indeed, counsel for Noah's Ark expressly stated at start of the hearing that "we concede that this proposal meets all of the rules and criteria in the case."[131]

234. The only rule to which Nikdia Hume and the Authority referred was Rule 2 of CZDC which relates to existing community sites. For that reason it does not apply to the subject land. Alternatively, if by some strained reading it was thought to apply, its requirements are met because the purported development would add to rather than reduce the range of community facilities available.

235. Because Noah's Ark did not identify a rule or a criterion with which, in its submission, the decision to approve the DA, or part of that decision, did not comply, we conclude that, even if Noah's Ark had standing to bring the application, it would not have invoked the jurisdiction of the Tribunal under section 121(2)(a) or (b).

236. Consequently, the Tribunal could not exercise any discretionary power to review the decision to approve a DA because Noah's Ark failed to invoke the Tribunal's jurisdiction.

The operation and implications of section 120 of the P&D Act

237. If we are wrong in our interpretation of section 121(2), then it is appropriate to consider the parties' submissions in relation to section 120.**

238. Noah's Ark submits, in summary, that only section 120(g) applies in this case. Consequently the focus is on that provision's requirement that:

In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:

(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

(a) when deciding a development application for the proposed development, the decision-maker must consider the matter referred to in section 120(g); and

(b) the proposed development will have a significant probable environmental impact in the sense that the anticipated reduction in the surplus funds that Noah's Ark would expect to receive if the proposed development goes ahead will be such that it could not support its other community activities.

**240. The argument for Noah's Ark proceeds on the basis that 'environmental impacts' referred to in section 120(g) include 'economic characteristics' because 'economic characteristics' are part of the 'environment' as defined in the Dictionary at the end of the P&D Act (see section 3).

241. To understand and assess that argument it is appropriate to consider that definition of 'environment' as a whole.**

environment_ - each of the following is part of the environment:_

(a) the soil, atmosphere, water and other parts of the earth;

(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).

**242. The reference to 'economic characteristics' is found in paragraph (h) of that long and detailed definition.

243. Mr Arthur sought to put section 120 (and hence its interpretation) in the context of provisions that preceded it in time, and analogous provisions in legislation elsewhere. He described section 120 as a new provision of the P&D Act in the sense that there was no equivalent section in the previous Land (Planning and Environment) Act 1991 or preceding legislation. However, he submitted, Part A3 of the Territory Plan 2002 (titled 'Plan Administration Policies') was intended to ordain how the Territory Plan was to be read or administered. Section 9 ('Consideration of Land Use and Development Proposals') included provisions that were in similar terms to sections of the P&D Act that are relevant to the present case.

244. Paragraph 9.1 stated that the relevant authority "shall not approve" a development or proposal for the use of land that would be "inconsistent" with 12 specific policies, codes, plans and legislation. According to Mr Arthur, that paragraph was, in effect, the equivalent of section 119 of the P&D Act. It provided that if an application did not comply with the code it must be refused.

245. Paragraph 9.2 set out nine matters that the relevant authority must "carefully consider" in relation to an application to undertake a development or a proposal to use land.

246. Paragraph 9.3 stated that, in addition to matters in paragraph 9.2, the relevant authority shall carefully consider those of the following 25 matters that are "of relevance to the proposal" including:**

(c) any significant short or long term effect which the relevant authority considers the use or development may have on the environment, including social and economic effects and potential cumulative effects.

**247. Mr Arthur referred to the evidence of Ms Gallacher who, in cross-examination, agreed that it was appropriate to consider probable social and economic impacts when considering the requirements of section 120. In his submission, the interpretation he puts on section 120 accords with the practice of the town planning profession.

248. He submitted specifically that section 120 refers not to economic effects generally but to economic effects of a particular kind. He relied on the following passage from the judgement of Stephen J in Gantidis, quoted earlier:

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.[132]

249. In Mr Arthur's submission, that is a leading statement of principle that has been applied in other Australian jurisdictions. For example, the original section 90 of the Environmental Planning and Assessment Act 1979 (NSW) was the equivalent of section 120 in the P&D Act. Section 90(1)(d) provided for a consent authority to take into account "the likely impact of that development including ... environmental aspects on both the natural and built environments and social and economic impacts in the locality."

250. In Fabcot Pty Ltd v Hawkesbury City Council[133] (Fabcot), Lloyd J wrote that "economic competition between individual trade competitors is not an environmental or planning consideration to which the economic effect described in s 90(1)(d) is directed." His Honour continued, "It seems to me that the only relevance of the economic impact of a development is its effect 'in the locality'; that is to say, in the wider sense described in ... Gantidis."[134] Having considered various arguments and circumstances of the case, Lloyd J concluded that none of those were relevant considerations under section 90(1) of the Act. They were matters "to be resolved by market forces. They are not environmental or planning considerations."[135]

251. In De Angelis v Wingecarribee Shire Council[136] (De Angelis), Commissioner Brown considered the operation of section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (a provision that replaced section 90(1)(d) in 1997). It provides that, in determining a development application, a consent authority is to take into consideration such of the specified matters as are of relevance to the development application, including "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality." The Commissioner quoted from the decision of Lloyd J in Fabcot and made statements to the same effect.

252. The question in De Angelis was whether the subject shopping facilities would be put in jeopardy by the proposed development, and whether any resultant community detriment would not be made good by the proposed development. On the evidence in that case, Commissioner Brown found that the proposed development could not reasonably be expected to disadvantage or detrimentally affect the life or existence of the town centre, neither did it give rise to a real chance or possibility that it would have a detrimental impact on the existing or potential function of the town centre.[137]

253. Mr Arthur also referred to Lewiac Pty Ltd and ING Real Estate Joondalup BV v Gold Coast City Council & Ors[138] (Lewiac). That case was an appeal against the deemed refusal by the Gold Coast City Council of an application for a development permit for a material change of use and a preliminary approval for building work for development for an extension to a shopping centre development and other shops and retail outlets.

254. Newton DCJ considered the evidence of expert witnesses about economic impact analyses, and stated that he was unable to conclude that economic impact formed a basis with respect to any existing or proposed centre for refusing approval of the proposal. Having expressed concerns in relation to the impact of the proposal on some shopping centres, his Honour concluded that the evidence in that regard was not so compelling as to warrant refusing approval in light of the observations of Stephen J in Gantidis. Adapting the language used by Stephen J, Newton DCJ concluded that, although there was evidence to demonstrate that if the proposed development proceeded there would be some significant adverse implications for the sales of established centres and of proposed new centres, those implications were unlikely to "result in an overall adverse effect" of such a degree as to "threaten the extent and adequacy of available facilities" to the Gold Coast community. Overall, the evidence did not support a finding that any "shopping facilities presently enjoyed by any community in the city of the Gold Coast will be jeopardised by the proposed development."[139]

255. In Bassingthwaighte v Roma Town Council,[140] (Bassingthwaighte) the Planning and Environment Court of Queensland heard an appeal against the decision of the Roma Town Council to refuse the approval of cattle saleyards on the outskirts of the town of Roma. It was significant that the site of the proposal was identified as good quality agricultural land. Having considered many issues raised in the appeal, the Court concluded that the proposal was materially in conflict with the planning scheme of Roma.[141] The decision of the Court could not conflict with the planning scheme unless there were sufficient grounds to justify the decision despite the conflict.[142] In that case, many of the areas of conflict were significant.[143]

256. R Jones DCJ noted that 'need', insofar as it relates to matters of public interest, can constitute a sufficient ground for approval.[144] The Court had previously stated that need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of community. A need had to be found to exist despite the presence of similar businesses in the locality. Generally speaking, those decisions had been confined to circumstances where the proposals were likely to provide benefit by way of a greater level of convenience to patrons (as contrasted with cases where the new facility would add to a consumer's area of choice but not noticeably improve the well-being of the community, or improve the services and facilities available in a locality where existing businesses plainly met demand).[145]

257. By reference to Gantidis, his Honour stated that the fact that a proposal constitutes a threat of competition to the respondent council was not of itself a relevant consideration. He continued:**

Private economics are not the province of appeals such as this. That accepted, it is still relevant in my view that the proposal would, in due course, lead to the loss of funds now used for the public benefit. This may not be a significant consideration but it is a relevant one.[146]

**258. Later in his reasons for judgment, his Honour wrote that it was "of less importance but still of some relevance that the proposal would place in jeopardy income used to subsidise community facilities."[147]

259. In Bassingthwaighte, although the existing cattle yards were somewhat dated and the proposal would be superior in some respects to the existing cattle yards, the appellants had not shown that the existing saleyards were not adequately meeting the demands of the cattle industry in an acceptably efficient manner. Overall, the evidence as to need was "unconvincing."[148]

260. In light of those authorities, Noah's Ark accepted that it needed to establish that:**

(a) it provides services or facilities to the public which it will no longer be able to provide if the effect of the competition from new operator is such that Noah's Ark loses a substantial proportion of its business; and

(b) those services are not services that the new facility on the subject site will provide and hence will be able to replace if Noah's Ark ceases to operate so that the community would still have available to it all services it previously enjoyed.

261. Mr Arthur noted that section 120(g) of the P&D Act refers to the 'probable impact' of the proposed development and does not distinguish between adverse or beneficial impacts. In his submission, impacts of both types are to be taken into account. In this case, child care facilities are to be provided that are beneficial to the community. If provision or addition of one benefit leads to the exclusion or cessation of another benefit (i.e., the provision of community services or programs provided by Noah's Ark), the Tribunal needs to undertake a balancing exercise to decide whether it is better for the community overall that the new child care facility be allowed to proceed.

**262. The Authority criticises Noah's Ark's submission that the potential loss of some sub-components of Noah's Ark's operations is an unacceptable impact of the proposed development because there would be a loss of services to the community, and hence section 120(g) applies. As is clear from the submissions made by Noah's Ark, the particular sub-components of its business said to be vulnerable to the 'probable impact' of the proposed development are the uneconomic or loss-making components. They are said to be vulnerable because competition against the profitable day care component of Noah's Ark's operations will reduce revenue so there will be insufficient funds (i.e. surplus funds or profits) to subsidise the loss-making components.

263. There are three elements to the Authority's submissions. First, the Territory Plan does not generally attempt to prescribe the particular sub-operations within a permitted use, as distinct from general controls such as active ground floor, building height or gross floor area (see CZDC, R50, R51, R51A, and R52). The term 'child care centre' refers to a use at a general level, within the permitted use of 'community facility' in the CZ4 table (see also Plan Definitions part A). The DA decision-maker has no power to prescribe the mix of sub-operations within the use (e.g., in order to reduce competition with a neighbouring business). The Territory Plan leaves such matters to the commercial decisions of the business operator.

264. As noted earlier, in his witness statement,[149] Mr Riches wrote that he had reviewed the relevant codes of the Territory Plan and concluded that economic viability or future business capabilities are not a consideration of the Territory Plan. In his experience of assessing development applications there are generally potentially competitive uses, but the Authority would not comment on them during assessment. In his opinion, because the proposed development would increase the opportunity for community use and would not reduce the range of community or recreational facilities on the subject site, the DA would be consistent with section 120(g) of the P&D Act as the proposal increases social opportunities for the area.

265. Second, the Authority submits that one would ordinarily expect a business to undertake strategic change to its mix of operations in response to changing economic circumstances. Noah's Ark does not have a right to protection from such circumstances via the planning and development approval process. In support of that submission, the Authority refers to the statement of Higgins J in Jewel Food Stores quoted earlier (at [143]), and to the statement of Stephen J in Gantidis,[150] quoted earlier, ([138] and [248]).

266. Noah's Ark might also consider increasing its prices for some services, or charging for services that it currently provides without charge.[151] As a consequence, some services that are said to be threatened by the proposed development could be saved. Others might be lost. There might be other ways to rationalise Noah's Ark's operations to enable it to maintain the facilities it states are threatened. In other words, Noah's Ark could undertake an internal reorganisation to minimise the impact of the proposed development on its operations.

267. Further, the Authority submits that if Noah's Ark's business at Rivett is less competitive because of its ageing premises, then there is less justification for protecting it from competition from new purpose-built facilities. Indeed, it might spend money upgrading its premises and curtail what it spends on other things.

268. Third, the Authority submits that a possibility that a sub-operation of the business may be lost is too speculative or remote an impact. In particular:**

(a) it assumes that the demand for child care places at the future time of opening of the proposed facility will be such as to reduce patronage of Noah's Ark day care program at Rivett (even though Noah's Ark's own figures suggest that demand is increasing, or has increased, by about 600% since 2009);

(b) it assumes that the relevant programs will be "lost" yet there is nothing to suggest that the new facility, or other facilities, will not offer similar programs in response to demand or need. Indeed, the evidence from Mr Stone about the proposed Kids Club Rivett (summarised at [22]-[26]) suggests that the new facility would provide a program for disabled people and could avail itself of Commonwealth Government support. Given that there is no proprietary interest in the programs currently operated by Noah's Ark, there would be nothing to stop the Kids Club Rivett or some other centre nearby from offering those programs. Nor would Noah's Ark be prevented from moving a particular program to one of its other venues; and

(c) it is speculative to suggest that Noah's Ark's business over its six New South Wales and ACT locations could not raise or lower fees, obtain additional government grants, or otherwise rationalise its operations so as to maintain some or all of its uneconomic programs.

**269. The Authority agreed that 'probable' in section 120(g) should be read with its ordinary English meaning, being more than a possibility and in contradistinction to fanciful, remote or speculative. It submits that:

(a) Noah's Ark does not have a right to protection from the mere possibility that changing circumstances might affect its business; and

(b) far from the proposed development having a probable impact, including probable environmental impacts, the possibility that a sub-operation of a business may be lost is too speculative or remote an impact.**

**270. Counsel for Nikdia Hume pointed out the tenuous link, if any, between the 'probable impact' of the proposed development and the 'environmental impacts' for which Noah's Ark contend by reference to the definition of 'environment'. He submitted that the 'economic characteristics' in paragraph (h) of the definition of 'environment' need to affect or be affected by the things mentioned in paragraphs (a) to (f) of that definition, which he described as "more earthy, organic, environmental, greenie type considerations." In other words, he submitted, the definition does not include a "stand alone" reference to economic characteristics. In this case, the economic impact of the proposed development does not flow from matters listed in paragraphs (a) to (f) of the definition of 'environment' but flows from the way in which a particular land occupier uses the profits from the business.

271. As noted earlier, Nikdia Hume submitted that the discretionary considerations under section 120 are irrelevant to an application for review of an approved DA. However, for completeness and to limit the potential for remittal of this matter, Nikdia Hume asked the Tribunal to consider whether the discretionary considerations under section 120 have been complied with.

272. Much of what Nikdia Hume submitted on this matter was considered earlier in these reasons in relation to the potential implications of the proposed development for the operations of the Noah's Ark Centre Rivett. It is not necessary to repeat those submissions or the evidence on which they rely.

273. Nikdia Hume also relied on the evidence of Ms Gallacher. She gave expert opinion evidence as a town planner in relation to DA 201528713 to the effect that,[152] although she could not comment on the matters which are at the heart of Noah's Ark's case,[153] she could comment on whether competition and the impacts of competition are a relevant consideration when assessing a DA under the Territory Plan and the P&D Act. In her opinion (which extended beyond the operation of section 120):[154]**

(a) Noah's Ark has not identified how DA 201528713 fails to comply with the Territory Plan or the P&D Act:

(b) section 119(1)(a) is relevant to this matter;

(c) only some codes deal with the principle and substance of the proposal;

(d) the CZDC (including Rule 2 and Criterion 2) does not require consideration of competition or the impacts of competition arising from this proposal;

(e) the Community and Recreational Facilities Location Guidelines General Code does not require consideration of the competition impacts of community and recreational facilities to one another;

(f) the Lease Variation General Code does not contain any requirement to consider competition or the impact of competition when considering proposed lease variations;

(g) the matters listed in section 120(a) to (f) were either not relevant or had been satisfied;

(h) it is open to the decision-maker to consider competition impacts of a development under section 120(g) provided that those impacts are "probable" (not fanciful or unlikely). Section 120(g) is not exclusive. Although it does not mandate consideration of the "nature, extent and significance" of probable social or economic impact, the decision-maker may consider these. The decision-maker maintains the discretion to approve any development, irrespective of the probability, nature, extent and significance of its impacts.[155]

274. Having determined that section 120(d) and (g) raise the potential for the consideration of competition and the impact of competition when deciding a development application in the merit track, Ms Gallacher expressed the opinion[156] that the appropriate weighting to be attributed to these matters is influenced by:

(a) the fact that the Territory Plan does not contemplate or attempt to mediate economic competition between community uses or types of community uses, and limits consideration of competition in the impact of competition to a small number of defined situations,[157] none of which is relevant here;

(b) the fact that the Territory Plan encourages the delivery of community uses in commercial centres;[158]

(c) the provision in section 120(d) that the right to review conveyed by Schedule 1 Column 1 item 4 is limited a situation where an entity made a representation and the approval of the development application may cause the entity to suffer 'material detriment' (an expression which is defined by section 419 to specifically exclude consideration of competition impacts, be they actual, likely, direct or indirect);

(d) section 120(g) does not limit consideration to probable negative impacts. Considering the object of the P&D Act and the Territory Plan, it is reasonable to balance considerations of the probable negative impacts of a development with its probable positive impacts. In this instance, it would be appropriate to consider the probable positive impacts of delivering additional child care spaces to the community, within the context of established community need.

**275. Ms Gallacher described the context of established community need as referring to the general presumption in government policy that the delivery of community facilities is a positive outcome. Conversely, the removal of community facilities would not be a desirable outcome.

276. In her opinion, the weighting attributed to probable negative competition impacts arising from the proposed development should be "moderated." Further, although competition and the impact of competition may be considered, in her view they are "not significantly relevant considerations."[159]

277. Nikdia Hume submits that it is far from clear how the DA would impact upon the viability of Noah's Ark extended services. Yet it is clear that if the DA is refused, residents of Rivett would be deprived of an increase in access to child care services, including for children with special needs.

278. Nikdia Hume also submits that, in considering section 120(g) of the P&D Act, the Tribunal should find that:**

(a) there is insufficient evidence of the probability of the impacts alleged by Noah's Ark; or

(b) any such impact does not weigh in favour of a refusal of the DA.

279. As noted earlier, Noah's Ark submits, in summary, that only section 120(g) of the P&D Act applies in this case. That provision states:

In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:

(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

**280. We note that in the Statement of Findings the delegate of the Authority wrote in relation to section 120(g) of the P&D Act, "Based on the matters to be considered by the relevant Codes there are no probable environmental impacts of significance associated with the proposed development." In a formal sense, it would appear that the requirement of section 120(g) was met. However, it is not clear that the delegate reached that conclusion based on the wide reading of 'environmental impacts' advanced by Noah's Ark. There is a question whether the Authority should have interpreted section 120(g) in that way.

281. Section 120(g) directs attention to 'the probable impact' of the proposed development (in this case, the approved child care facility) and within that, the nature, extent and significance of 'probable environmental impacts' of that development. In other words, where more than one environmental impact is probable, the decision-maker must consider aspects of those probable environmental impacts when considering the probable impact of the proposed development as a whole.

282. There is judicial authority for the approach advanced by each party to the meaning of the phrase 'probable impact'. For example, in Darkan v The Queen[160] the High Court considered in detail the use of the word 'probable' in the phrase 'a probable consequence'. Gleeson CJ, Gummow, Heydon and Crennan JJ made two preliminary points about the use of the word "probable" in expounding and applying rules of law.**

(a) The application of legal tests that turn on questions of probability will vary with the context in which the questions asked. 'Probability' can denote a variety of degrees of confidence, and probabilities can be of different degrees of strength.[161]

(b) Whatever precise meaning the word 'probable' has in a particular context, it is usually used to establish a contrast to what is 'possible'. Thus, the Concise Oxford English Dictionary defines 'possible' as that which "may exist or happen, but that is not certain or probable."[162] Although the word 'probable' has diverse meanings, all common usages of it suggest a more exacting standard than 'possible'.[163]

**Kirby J also highlighted the difference between 'probable' and 'possible'.[164]

283. Adopting that approach, 'the probable impact' in section 120(g) means that the occurrence of the impact must be probable as distinct from possible.[165]

284. Next it is necessary to decide whether the proposed development will have probable 'environmental' impacts. We make three observations about the definition of 'environment' in the P&D Act (quoted at [241]) and its operation in this case. First, it does not define 'environment' in the same way as other words are defined to 'mean' or 'include' specified items. For example, 'natural environment' is defined in section 317(6) to mean "all biological, physical and visual elements of the earth and its atmosphere, whether natural or modified." By comparison, the definition of 'environment' merely lists a series of items that are 'part of' the environment. Thus, the whole (or at least, one infers, a substantial part) of what is the "environment" for the purpose of the P&D Act is determined by reference to its constituent parts.

285. Second, the things listed in paragraphs (a) to (f) of the definition include naturally occurring items, manufactured or modified structures and areas, people and communities, and specified types of qualities and characteristics of areas. Paragraph (g) includes, as part of the environment, interactions and interdependencies within and between those things. At the end of the list, paragraph (h) includes social, aesthetic, cultural and economic characteristics that affect, or are affected by, the things mentioned in paragraphs (a) to (f). A characteristic is a trait, mark or quality of something rather than the thing itself. It is not clear what the social, aesthetic, cultural and economic characteristics are characteristics of. However, this definition provides that the specified characteristics themselves affect, or are affected by, other specified things that are part of the environment.

286. Third, the definition of 'environment' can only support the application by Noah's Ark if the 'economic characteristics' affect or are affected by 'the things' mentioned in paragraphs (a) to (f). Assuming that the expression 'the things' does not require all things, Noah's Ark can only succeed if the approved development is one of those things[166] that affects 'economic characteristics'.

287. If an ejusdem generis approach is taken to that definition of 'environment', there would seem to be a slender statutory basis for this aspect of the submissions of Noah's Ark. The economic impact argument (summarised at [239]) seems to have little, if any, direct link to the types of items listed in that definition. However, the other parties did not contend strongly that the argument could not be made (although they disputed its merits) and the judgments cited above illustrate that courts in other jurisdictions have ruled on analogous arguments in similar statutory contexts. We proceed accordingly.

288. In this case it was not argued, and we do not find, that the Noah's Ark Centre Rivett would be put in jeopardy and the resultant community detriment would not be made good by the proposed development. Rather, the argument advanced by Noah's Ark is that the community programs that it provides or supports financially would be in jeopardy if the proposed development proceeds, those programs would not be provided by others, and hence there would be a resultant community detriment. Accordingly, for the purpose of section 120(g), that should be taken into account as a probable environmental impact of the proposed development.

289. As recorded earlier in these reasons for decision (see [122] to [129]), we are satisfied that the development on the subject site as proposed in DA 2012528713 would have an impact on the operations of the Noah's Ark Centre Rivett. The proposed development by Kids Club Rivett would provide more than just another childcare centre close to the Noah's Ark Centre Rivett. It would provide for children with special needs in ways that would be in direct competition with the services currently provided by Noah's Ark in Rivett. Consequently, families in the catchment area (including those children with special needs) would be provided with an additional range of services and facilities from which to choose.

290. In particular, we conclude that the probable negative impact of the proposed development for Noah's Ark would include some impact on the economic circumstances of the Centre. That, in turn, would have a probable negative impact on the financial capacity of Noah's Ark to support the range of community programs that it currently supports or provides in collaboration with other organisations.

291. That conclusion does not necessarily mean that, were the Tribunal to have regard to section 120(g) of the P&D Act, Noah's Ark's application to have the Authority's approval of DA 201528713 set aside would succeed and the decision would be replaced with the decision to refuse the DA.

292. Drawing on the language used in decisions considered above, we consider that the submissions advanced by Noah's Ark are answered as follows:**

(a) to the extent that the submissions are based on the consequences of economic competition between competitors in the marketplace, that is not an environmental or planning consideration to which section 120 of the P&D Act applies in the sense that the Territory Plan does not generally contemplate or attempt to mediate competition between community uses or types of community uses, let alone sub-categories of those uses (such as using surplus funds derived from the permitted use for broader community benefits);

(b) the submissions proceed on the basis that Noah's Ark could only continue to support the programs from surplus funds that it receives from the Noah's Ark Centre Rivett, and those surpluses would be reduced or eliminated if the proposed development proceeds, yet in recent years there have been significant constraints on the capacity of Noah's Ark to generate sufficient surplus income for that purpose from the Noah's Ark Centre Rivett, and those constraints are and have been unrelated to the proposed development;

(c) we are not convinced that, if the proposed development proceeds, the adverse implications would be such that (for that reason alone) the programs enjoyed by the community would be put in jeopardy and that would threaten the extent and adequacy of available facilities at Rivett and the broader ACT community. Noah's Ark might find other ways to continue supporting some or all of the programs, as it has done in the past (for example, by prioritising some programs over others, negotiating access to government funding, or charging for some programs) and/or some services might be provided by Kids Club Rivett.

**293. It is also necessary to remember that, although the decision-maker must consider the matters listed in section 120, the decision-maker maintains the discretion to approve a development irrespective of the probability, nature, extent and significance of its impacts. It is necessary to weigh or balance the various matters in reaching the decision whether to approve the development.

294. In this case, when assessing the 'probable impact' of the proposed development, it is appropriate to consider both adverse and beneficial impacts. Clearly, the child care facilities proposed to be provided by Kids Club Rivett are likely to be beneficial to the community in the catchment area and, possibly, to some people outside that area. They would increase the range of facilities on the subject site and ensure that community and recreation facilities remain available to the community

295. From a broader perspective, we accept that if Noah's Ark continues with its current management arrangements in relation to the funding of the community programs, those programs will be adversely affected by the proposed development. In those circumstances (to adapt the words of R Jones DCJ in Bassingthwaite) the proposed development would place in jeopardy income used to subsidise community programs. At least some of those programs or services might not be provided by another organisation or organisations (including Kids Club Rivett) to the local community or to families elsewhere in the ACT and Queanbeyan.

296. The negative impact, particularly for some families who have special needs and who might not otherwise have access to one or more of the programs, is worthy of comment. However, when considered along with such other matters in section 120 as are relevant, it should not result in the decision to approve the DA being set aside. In other words, the need for such programs (which might be met in one or more other ways) does not outweigh the factors in support of approval of DA 201528713. The potential loss of funds now used for the public benefit might be a relevant consideration, but it is not a significant or determinative consideration.

297. Although we have set out the evidence, the parties' submissions and our reasoning in some detail, our conclusions can be summarised quite briefly. For the reasons set out above:**

(a) we are satisfied that if the proposed development on the subject site were to proceed it would have some adverse effect on the operations of the Noah's Ark Centre Rivett, and any consequential significant reduction in the income of that Centre would affect (and potentially eliminate) the capacity of Noah's Ark to support the community programs that it finances from surplus funds received at the Centre;

(b) by the combined operation of sections 407, 408A, 419 and Schedule 1 of the P&D Act, Noah's Ark is not an 'eligible entity' and hence does not have standing to make the application to the Tribunal for a review of the Authority's decision to approve DA 201528713;

(c) if Noah's Ark has standing to make that application, it has not identified how the DA does not comply with the relevant Code (CZDC) and hence, by operation of section 121(2)(a) and (b) of the P&D Act, Noah's Ark does not have a right of review of the Authority's decision;

(d) if the Tribunal has jurisdiction to deal with the application, the probable impact of the proposed development at the subject site on the financial capacity of Noah's Ark to support community programs the Noah's Ark Centre Rivett and elsewhere is not a significant or determinative consideration and, having regard to the ways in which the DA satisfies the criteria set out in section 120, there is no basis for setting aside the Authority's decision to approve DA 20158173 and to substitute a decision refusing DA 2015 8713.

298. It follows that the Tribunal must dismiss Noah's Ark's application for review of the Authority's decision to approve DA 201528713.

1. Merit track - when development approval must not be given

_(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with - _

(b) if the proposed development relates to land comprised in a rural lease - any land management agreement for the land; and

(c) if the proposed development will affect a registered tree or declared site - the advice of the conservator of flora and fauna in relation to the proposal.

Note 1 An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).

_(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that - _

(ii) any realistic alternative to the proposed development, or relevant aspects of it; and

(b) the decision is consistent with the objects of the territory plan.

_(3) To remove any doubt, if a proposed development will affect a registered tree or declared site - _

(a) the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and

(b) subsection (2) does not apply in relation to the conservator's advice.

1. 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:

(a) the objectives for the zone in which the development is proposed to take place;

(b) the suitability of the land where the development is proposed to take place for a development of the kind proposed;

(c) if an environmental significance opinion is in force for the development proposal - the environmental significance opinion;

Note Environmental significance opinion - see s 138AA. Environmental significance opinions expire 18 months after they are notified (see s 138AD).

(d) each representation received by the authority in relation to the application that has not been withdrawn;

(e) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications) - the entity's advice;

Note Advice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).

(f) if the proposed development relates to land that is public land - the public land management plan for the land;

(g) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

1. Merit track - notification and right of review

(1) To remove any doubt, if a development proposal is in the merit track, the application for development approval for the proposal must be publicly notified under division 7.3.4.

_(2) If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that - _

(a) the development proposal is subject to a rule and does not comply with the rule; or

[2] In his oral evidence, Mr Stone explained that, depending on the child's additional needs, Kids Club will include an extra teacher to the roster for a certain time at its own cost. That provision is relatively rare, between zero and three times in one year.

[4] As Noah's Ark is a not-for-profit organisation it would be incorrect to refer to "profits".

[15] The Toy Library, Playschool, Play and Learn playgroup, and Paint and Play playgroup

[25] In the past, community-based programs provided by Noah's Ark were generally funded by the Commonwealth until self-government in the ACT when that funding was transferred to the Territory. Noah's Ark has operated other programs, such as an after school care program for approximately 15 disabled students which was begun at the request of the ACT Government which provided funding for two years. When funding ceased, Noah's Ark continue the program for some 18 months until it was unable to afford the operating cost.

[31] Mr McMichael gave evidence that Noah's Ark tends to have more vacancies at the beginning and end of each year. This is due to new children orientating at the beginning of each year, which is often staggered throughout January and early February to ensure smooth and effective transitions for children and their families. There is also a rise in vacancy numbers at the end of each year when children who are moving on to formal schooling cease enrolment with the day long care. Over the past three years, enrolments are at peak in the middle of the year with the lowest vacancy rates in the months of June to October. Mr McMichael provided a monthly breakdown of vacancies for 2013, 2014, 2015 and 2016 (Exhibit A7)

[37] The variables include the extent to which parents are satisfied with the current centre, the time of year (the beginning or near the end of a year), the age of the children, whether children's friends moved to the new centre, the centre's connections with the community, whether the new centre has recruited staff from their child's present centre, and the convenience of the location of the new centre

[39] Exhibit A1, page 6. Dr Abbey suggested that Noah's Ark would need to upgrade the Centre which "looks a little tired."

[43] Childcare Needs Assessment: Proposed Development Site 57 Bangalay Cres Rivett ACT 2611, February 2017

[46] That assessment is said to be supported by telephone survey conducted two centres in the major catchment, details of which are set out in Exhibit PJ1, paragraph 13.

[47] That figure has reduced from an estimated 150 places in 2011 as a result of increases in supply since then (Exhibit PJ1, paragraph 15)

[48] A table in Mr Henry's report showed an estimated 2,010 children of 0 to 4 years of age in the area in 2021, an increase of 163 from the estimate for 2017

[53] See Exhibit PJ 2- Table 3A.19 Proportion of children who are attending Australian Government approved child care services, by single year of age and age group, 2016 (a), (b), (c)

[56] See also the figures provided by Ms Brennan listed earlier

[57] Clause 6(a) of the licence expressly states that nothing in the licence shall create or be construed as creating any tenancy or shall be construed as conferring upon the licensee any estate or interest in the premises or any part thereof

[58] Argos Pty Ltd v Corbell & Ors [2014] HCA 50; (2014) 254 CLR 394

[59] Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675

[60] Jewel Food Stores v Minister for the Environment Land and Planning (1994) 122 FLR 269

[61] Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 687

[62] Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 681

[63] Jewel Food Stores v Minister for the Environment Land and Planning (1994) 122 FLR 269, 279

[64] Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377

[65] Jewel Food Stores v Minister for the Environment Land and Planning (1994) 122 FLR 269, 280

[66] Jewel Food Stores v Minister for the Environment Land and Planning (1994) 122 FLR 269, 280

[67] Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 254 CLR 394, 409 at [42]

[68] Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 254 CLR 394, 406 at [31]

[69] Australian Foreman Stevedores Association v Crone (1989) 20 FCR 377, 379-382

[70] Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 254 CLR 394, 407 at [34]

[71] Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 254 CLR 394, 408 at [35]

[72] Section 419(1)(b) refers to an entity that has objects or purposes

[73] Argos Pty Ltd v Corbell & Ors [2014] HCA 50; (2014) 254 CLR 394 at [34]

[74] 1.23 states "The needs of people with disabilities will be recognised in all facets of urban planning, particularly including the design and operation of transport and access systems and the assessment of development proposals."

[75] See Argos Pty Ltd v Corbell & Ors [2014] HCA 50 at [34]

1. [76] Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; (2015) 303 FLR 49, 61 at [246]

[77] See Item 4 of Schedule 1 to the P&D Act

[78] 'Relevant code' is defined in the dictionary to the P&D Act to mean, for a development proposal, "a code that the relevant development table applies to the proposal."

[81] See also Mason and ACT Planning and Land Authority and Ors [2009] ACAT 7, at [29](iv) concerning Rules and [29](v) concerning Criteria

[82] Exhibit R1, paragraphs 18-28. See also transcript of proceedings 9 March 2017 page 154

[83] That statement was made on the basis that Noah's Ark had not identified how the DA fails to comply with any relevant code

[85] Mason and ACT Planning & Land Authority and Ors [2009] ACAT 7 at [29](i)

[86] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galetti Holdings Pty Ltd [2010] ACAT 24

[87] Thomson v ACT Planning and Land Authority [2009] ACAT 38

[88] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [45]

[89] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galetti Holdings Pty Ltd [2010] ACAT 24 at [15]

[90] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96

[91] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 at [44]

[92] Exhibit R1, paragraph 30. See also transcript of proceedings 9 March 2017 page 155

[93] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 at [42], [43]

[94] Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3 at [58]

[95] Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3 at [59]

[96] Section 120 was amended subsequently to add an item, so this passage should be read as applying equally to section 120(a) to (g)

[97] The case involved an appeal against a refusal, rather than an approval, of a development application

[98] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [18], [23]

[99] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [27]

[100] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [24]

[101] ACT Civil and Administrative Tribunal Act 2008 section 9

[102] ACT Civil and Administrative Tribunal Act 2008 section 10

[103] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [25]

[104] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [45]

[105] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [93]

[106]Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [101]

[107] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [77]

[108] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [28]- [33], [48]; Human Rights Act 2004 sections 12, 21

[109] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [34]- [36]; Human Rights Act 2004 section 40B

[110] See section 21 of the Human Rights Act 2004

[111] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [96]- [103]

[112] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [54]

[113] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [104]

[114] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [114].

[115] Presidential Member Spender and Senior Member McMichael

[116] Presidential Member Stefaniak, Senior Member McMichael and Member Nichols

[117] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galeotti Holdings Pty Ltd [2010] ACAT 24 at [14]

[118] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galeotti Holdings Pty Ltd [2010] ACAT 24 at [15]

[119] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galeotti Holdings Pty Ltd [2010] ACAT 24 at [15]

[120] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galeotti Holdings Pty Ltd [2010] ACAT 24 at [16]- [19]

[121] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galeotti Holdings Pty Ltd [2010] ACAT 24 at [20]

[122] Catherine Rudder v ACT Planning and Land Authority & Jopratz Pty Ltd & Galeotti Holdings Pty Ltd [2010] ACAT 24 at [21]

[123] Presidential Member McCarthy, Senior Member Pegrum

[124] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 at [40]- [43]

[125] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 at [44]

[126] See e.g. 3.1-3.4, 4.1, 5.1 (part), 5.2, 7.1 (part), 7.2, 10.1 of the CZDC which state that "There is no applicable rule" but list relevant criteria. By comparison see Rules 10-13, 24-27, 30, 32-35, each of which is a mandatory requirement for which there is no applicable criterion

[127] J Middleton, "Statutory Interpretation - Mostly Common Sense?" Melbourne University Law Review Annual Lecture, 14 April 2016. As an example of this approach see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 31 [4], French CJ, and Fortress Credit Corporation Australia II Pty Ltd v Fletcher and Others [2015] HCA 10; (2015) 254 CLR 489

[130] See also the Legislation Act 2001 sections 138-143

[131] Transcript of proceedings 8 March 2017 page 11

[132] Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 687

[133] Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27; (1997) 93 LGERA 373, 378

[134] Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27; (1997) 93 LGERA 373, 378

[135] Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27; (1997) 93 LGERA 373, 379

[136] De Angelis v Wingecarribee Shire Council [2013] NSWLEC 1148, 12 at [72]

[137] De Angelis v Wingecarribee Shire Council [2013] NSWLEC 1148, 12 at [76]

[138] Lewiac Pty Ltd and ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2002] QPEC 80

[139] Lewiac Pty Ltd and ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2002] QPEC 80 at [100]

[140] Bassingthwaighte v Roma Town Council [2010] QPEC 91

[141] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [106]

[142] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [107]

[143] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [108]

[144] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [109]

[145] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [110], quoting Isgro v Gold Coast City Council [2003] QPEC 2; (2003) QPELR 414, 418

[146] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [112]

[147] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [124]

[148] Bassingthwaighte v Roma Town Council [2010] QPEC 91 at [113]- [115]

[150] Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 687

[151] An option suggested to Noah's Ark by Dr Abbey (see [72] )

[153] That is, whether the DA would lead to increased competition in long day child care, reduced revenue for Noah's Ark and a diminished capacity to cross-subsidise other child care programs, and whether Noah's Ark's care programs are unique

[154] Exhibit PJ41, paragraphs 10, 17-39

[157] Ms Gallacher gave as an example the reference in Criterion 49 of the CZDC to competition between residential and commercial/retail purposes when retail development of a site in a local centre is contemplated. Criterion 49 is explicit in its intention to demonstrate that it does not compromise commercial viability

[158] See the inclusion of community uses as merit assessable uses in most commercial zones, and the relevant provisions of the Community and Recreational Facilities Location Guidelines General Code

[160] Darkan v The Queen [2006] HCA 34

[161] Darkan v The Queen [2006] HCA 34 at [24]

[162] Darkan v The Queen [2006] HCA 34 at [25]

[163] Darkan v The Queen [2006] HCA 34 at [75]

[164] Darkan v The Queen [2006] HCA 34 at [127], [129]

[165] See Darkan v The Queen [2006] HCA 34 at [79], [132]

[166] Perhaps, for example, the structures that are manufactured and the area that is modified as a result of approval of the DA - see paragraph (d) of the definition of 'environment'