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Background and summary of this decision 2. On 15 June 2026, the Tribunal received an application for review of a decision by the respondent to approve “section 197 Amendment s205F for DA – 202342447 Regarding Block 4, section 57 Turner” (Amendment Decision). The applicant for review also applied for an immediate interlocutory stay of proceedings to halt all physical structural excavation, wall pouring and foundation work at the block in question to preserve the public verge street tree from active root destruction. He also applied for similar interim or other orders on 16 June 2026 and 17 June 2026 with requests for an urgent hearing.

3. The various applications for interim or other orders were dismissed at a hearing on 17 June 2026. At that hearing, the applicant confirmed that he was seeking to review a decision of the respondent made on 28 April 2026 to approve, with conditions, an application to amend an approval of a development proposal. The respondent sought to have the application for review dismissed on the basis that it was made out of time; the Planning Act 2023 (Planning Act) required the application to have been brought prior to 28 May 2026 being within 20 working days of the notice of decision being emailed to the applicant. The respondent also raised the question of whether the grounds of the applicant’s application related to earlier versions of the development application and hence would not be able to be reviewed by the Tribunal. Orders were made for the applicant and the respondent to provide material relating to the Tribunal’s jurisdiction, with the Tribunal noting that the issues the hearing would consider included whether the application was lodged in time under section 507 of the Planning Act. Whether the applicant applied for review in time Statutory background

4. A proponent of a development proposal may apply to the respondent for development approval under section 166 of the Planning Act. The development application must generally be publicly notified, including by publication on the 1 respondent’s website and to adjoining land. Anyone may make a written 2 representation about a development application that has been publicly notified. Any representation received and not withdrawn must be considered in deciding 3 whether to approve a development application.

5. Section 185 of the Planning Act provides for decisions on development applications, with the decision maker having to either approve the application, approve it subject to conditions or refuse the development application. Written notice of decisions under section 185 must be provided to, among others, each 4 person who made a representation under section 180 about the application.

6. Section 206 provides for amendment of a development approval. Section 206(1) states: (1) In deciding whether to amend a development approval in accordance with an application under section 205, the decision-maker must consider the application, and take action in relation to the application, as if— (a) the development originally approved is completed; and (b) the application is a development application to be decided under section 185. Example Tony has development approval to build a house (the original approval). Tony starts to build the house, but discovers that he needs 1 Planning Act ss 175, 176 2 Planning Act s 180 3 Planning Act s 186(h) 4 Planning Act s 196 an extra room in the house. He applies to amend the original approval. In deciding whether to amend the original approval, the territory planning authority must treat the application to amend as if the house has been built in accordance with the original approval, and the application is for approval to add an extra room.

7. The effect of section 206 is therefore to treat an application to amend an approval as if it was a development application which is to be decided under section 185. Any requirements for public notice, ability to make representations, and providing written notice of decisions, therefore also apply to the application to amend.

8. A person may apply to the Tribunal if an authorising law provides that an 5 application can be made. The right to make an application is subject to any 6 condition in the authorising law. Under section 506 of the Planning Act an eligible entity for a reviewable decision can apply to the Tribunal for review of the decision. Reviewable decision and eligible entities are set out in schedule 5, part 5.2. Under that part, both a decision to approve (with or without conditions) a development application under section 185 and a decision to amend (with or without conditions) a development approval under section 206 are reviewable decisions. Eligibility to apply for review of such decisions requires: (a) the entity made a representation under s 180 about the original application or had a reasonable excuse for not making a representation; and (b) the amendment of the approval may cause the entity to suffer material detriment

9. Section 507 of the Planning Act provides for when an application to review can be made: 507 Applications for review by third parties (1) This section applies to a reviewable decision in relation to a development application if the eligible entity for the decision is not the applicant for the development application. (2) Despite the ACT Civil and Administrative Tribunal Act 2008, section 10 (Making an application), an application for review must

5 ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) s 9 6 ACAT Act s 10 be made not later than 20 working days after the day the entity was given notice of the decision. (3) The ACT Civil and Administrative Tribunal Act 2008, section 10 (3) (b), does not apply to the application for review. (4) The period for making the application for review may not be extended under the ACT Civil and Administrative Tribunal Act 2008.

10. Section 10 of the ACAT Act provides for applications for review of a decision to be made within 28 days after the day the decision is made. Section 10(3) extends the time for making an application; if notice of the decision is provided within five days, the application can be made within 28 days of the day notice is given (section 10(3)(a)) or, if notice is required but not provided, the application can be made within 28 days of the person becoming aware of the decision (section 10(3)(b)).

11. Rule 38 of the ACT Civil and Administrative Tribunal Procedures Rules 2024 (ACAT Rules) applies if there is a time limit under the ACAT Act, another law or those rules for making an application to the tribunal. The Tribunal may make an order extending the time for making an application by up to 56 days. However, that rule is subject to any express provision about the extension of time in these rules or any other law, and an example is given of the Planning Act prohibiting the extension of time for some applications.

12. ACAT Rules are made under section 24 of the ACAT Act. Section 25(1)(e) allows rules to prescribe a longer period than the time provided under the ACAT Act or an authorising law. A rule about the time for filing an application is provided as an example. However, section 25(3) prevents a rule from prescribing a longer time where the authorising law provides that “the thing cannot be done in the longer time”.

13. It is clear that the intended operation of these sections is to prevent the Tribunal from extending the time to apply for review of a reviewable decision under the Planning Act. For the Tribunal to have jurisdiction to review a reviewable decision an application for review must be made “not later than 20 working days 7 after the day the entity was given notice of the decision”.

When was notice of the decision given to the applicant?

14. The evidence before the Tribunal indicates that the original development application was substantially submitted on 18 January 2024. The description of the development in the formal submission included “[c]onstruction of 414 dwellings across 4 buildings consisting of 6 to 9 storeys …”. That application was approved with conditions under section 262 of the Planning and Development Act 2007 (P&D Act) on 18 June 2024. Two post-decision applications under section 165 of the P&D Act provided information relating to the conditions of approval, with endorsement of compliance with those conditions being made on 4 November 2024.

15. An application to amend the development approval under section 205 of the Planning Act was lodged on 19 November 2024 seeking approval of changes to services and tree removal and landscape changes. This was conditionally approved on 14 January 2025. A further application to amend the development approval under section 205 was lodged on 19 November 2024 seeking approval to reconfigure the basement. This further amendment was conditionally approved on 21 January 2025. None of these amendments were publicly notified as they were assessed to have met the waiver pf notification requirements in section 208 of the Planning Act.

16. The amendment application which is the subject of the decision under review (Amendment Application) was lodged under section 205 of the Planning Act on 7 January 2026. The Amendment Application sought approval for various changes, including floor layout and window locations, increasing the roof level by 50mm, and revising column locations. The Amendment Application was publicly notified.

17. The applicant provided a representation objecting to the original development application on 23 February 2024. That representation included concerns over the

7 Planning Act, s 507(2) removal of 12 trees and that the proposal exceeded the maximum height permitted. The applicant provided the representation by hand and provided a Yahoo email address. Emails were sent to that Yahoo email address from the respondent acknowledging receipt of the representation on 23 February 2024 and providing notice of the decision to approve the development application with conditions on 18 June 2024.

18. The applicant made a representation on the Amendment Application on 6 February 2026. That representation objects to the amendments creating a “shadow wall” which will deprive western residents of morning light, increased visual bulk and loss of “fine-grain” architecture, encroachment on setbacks and failure of the “substantially the same” test. The respondent’s evidence is that the applicant provided this representation by hand and provided a Gmail email address to acknowledge receipt. The applicant claims that he provided his Gmail email address because he had not used his Yahoo address for some years. An email was sent to that Gmail email address on 10 February 2026 with a copy of the scanned documents provided with the representation, and an email acknowledging receipt of the representation was sent to that Gmail address on 16 February 2026.

19. The applicant gave evidence that they had not received a copy of the notice of decision, despite putting in a representation. The respondent’s evidence is that the notice of decision was sent to the applicant’s Yahoo address on 29 April 2026. The respondent’s evidence was that, even though the applicant’s Gmail address was recorded at the time he provided the representation on the Amendment Application and used to provide material to the applicant, the Yahoo email address was used as it was the original email address provided and there had been no notification that the Yahoo address was no longer to be used. The respondent’s evidence was that there was no bounce back email indicating that the email had not been delivered. The applicant accepted that the Yahoo email address written on his original representation was in his handwriting, but he claimed that he has not checked his Yahoo email address for some years. Respondent’s submissions

20. The respondent submitted that the applicant was given the decision notice when it was sent to his Yahoo email address. The respondent pointed to section 67A of the ACAT Act, which requires a person who makes a decision that, under an authorising law, is reviewable by the Tribunal, to take reasonable steps to give written notice of the decision to any person whose interests are affected by the decision. It was submitted that this indicates that only reasonable steps are required for notice of a reviewable decision to be provided.

21. The respondent also relied on Part 19.5 of the Legislation Act 2001(Legislation Act) which applies to documents that are authorised or required under a law to be served (whether the word ‘serve’, ‘give’, ‘notify’, ‘send’ or ‘tell’ or any other 8 word is used). Under section 247(1)(d) of the Legislation Act a document may be served by, among other ways, “emailing it to an email address of the individual”. ‘Email address’ is defined in section 246 of the Legislation Act to include the latest email address of an individual recorded on the administrators register or other records. The respondent submitted that the reference to ‘an’ email address in section 247 indicates that any email address of the applicant is sufficient, which includes, but is not limited to, the latest email address provided by the applicant.

22. Section 250 of the Legislation Act goes to when a document is taken to be served. It includes: (3) If the sender has no reason to suspect that a document served by fax or email under this part was not received by the recipient when sent, the document is presumed to be served when sent unless evidence sufficient to raise doubt about the presumption is given. (4) For subsection (3), the sender has reason to suspect that a document served by fax or email under this part was not received by the recipient when sent only if, on the day the document was sent or on the next working day, the equipment the sender used to send the document indicated by way of a signal or other message that— (a) the equipment did not send the document when the equipment was used to send the document; or

8 Legislation Act s 245 (b) for a fax—the number to which the fax was sent to the recipient was not a fax number of the recipient; or (c) for an email—the address to which the email was sent was not an email address of the recipient. (5) A document addressed to the recipient, and left for the recipient as mentioned in section 247 (e), section 248 (e) or section 249 (e), is taken to be served when it was left. (6) In this section: recipient, for a document, means the individual, corporation or agency on whom the document is intended to be served. sender, for a document served, or to be served, by fax or email, means the person sending, or seeking to send, the document.

23. The respondent submitted that, as there had been no bounce back message indicating that the Yahoo email address was not an email address of the applicant, the respondent had no reason to suspect that a document was not received by the applicant and hence the notice of decision is presumed to be served unless evidence sufficient to raise doubt about the presumption is given.

24. The respondent’s representative referred in the hearing to the decision in Peden 9 & Commissioner for ACT Revenue (Peden) as support for the proposition that a person can be given a notice without having read it.

25. The respondent submitted that the legislative context also supports the respondent’s interpretation of what is meant by giving notice under section 196 of the Planning Act. Under section 210 of the Planning Act, for example, where there are one or more representations made about a development application then the development approval generally only takes effect 21 working days after notice of the approval decision is given under section 196. Given development can proceed once the approval takes effect, it is important to be able to clearly identify when the notice of decision has been given.

Consideration

26. I accept for the purposes of this decision that notice of decision relating to the Amended Application was sent to the applicant’s Yahoo email address on 29 April 2026, that the applicant had and has access to this email account and

9 [2013] ACAT 31 hence could have accessed the notice of decision on that date, but that the applicant has not accessed his Yahoo email account so as to be able to read the notice of decision. The question is whether this means that the applicant has not been given the notice of decision so as to start the 20 working-days set out in section 507 of the Planning Act.

27. I do not accept that the effect of section 67A of the ACAT Act is that only reasonable steps need to be taken before the notice of decision can be taken to have been given to the applicant for the purpose of section 507 of the Planning Act. Section 67A provides generally for notice of reviewable decisions. There is currently no prescribed time period in which a reviewable decision notice must be given, the validity of the decision is not affected by a failure to provide the 10 notice, and the provisions relating to applying to the Tribunal do not depend on 11 the availability of the review notice. The contents of such a notice are set out in 12 regulations and are largely limited to the availability of Tribunal review.

28. In contrast, section 196 provides for notice of a decision under section 185 to be provided to each person who made a representation regardless of whether their interests may be affected. Section 196(2) sets out the elements of the decision on a development application which must be included in the decision notice, including the reasons for the decision, summary of any entity advice on the development application, information about the application and any conditions to which the approval was subject.

29. Section 505 of the Planning Act deals with reviewable decisions under that Act, requiring the decision-maker to give a reviewable decision notice to each eligible entity and interested entity for the decision. That may be broader or narrower than persons whose interests may be affected by the decision who are to be provided with the reviewable decision notice under section 67A of the ACAT Act. A note to section 505 states “[t]he requirements for reviewable decision notices are

10 ACAT Act s 67A(4) 11 As set out above, s 10 of the ACAT Act refers to 28 days from the date of decision. Rule 126 of the ACAT Rules refers to attaching, if available, the reviewable decision notice when lodging a review of administrative decision application which must be lodged within the time allowed under s 10 of the ACAT Act or as extended under r 38. 12 ACT Civil and Administrative Tribunal Regulation 2009 s 7 prescribed under the [ACAT Act]”, which I take to be referring to the possibly prescribed requirements for the time within the notice must be given, the notice contents, accompanying documents, or anything else in relation to the notice. There are currently no prescribed requirements relating to the manner in which a notice is to be provided. Section 505 may therefore be contrasted with section 67A, in that section 505 requires a reviewable decision notice to be given, whereas section 67A requires only that reasonable steps be taken to give written notice.

30. I note that the Planning Act draws a possible distinction between a notice of a decision on a development application as required by section 196, and a reviewable decision notice under section 505. Section 507, by referring to when the entity was given “notice of the decision”, might be referring to either a section 196 notice or a reviewable decision notice. In my view, the specific provision in section 196 for notice of a decision under section 185 and its effect on when an approval may take effect indicates that section 196 would indicate that both the content requirements in section 196(2) and the availability of Tribunal review as set out in a reviewable decision notice is required to be given to the applicant before the 20 working-day period begins.

31. Even if I am wrong about the effect of section 67A in this case, I do not regard the respondent as having taken reasonable steps to give notice of the decision to the applicant. Section 206 makes it clear that an application to amend a development approval must be treated by the respondent as if it was a new development application. The requirements for notice should be read in that light and generally based on addresses provided or available as part of a new 13 application process. The respondent accepted that it had recorded and used the applicant’s Gmail email address when accepting his representation. It is reasonable in my view for any further notices to have also been sent to the latest email address provided without the applicant having to make explicit in writing

13 Section 176 of the Planning Act, for example, provides for notice of a development application to be provided to the registered proprietor of adjoining land at their last-known address where the adjoining land is unoccupied that an earlier email address, in this case provided some two years earlier and provided for another purpose, is no longer being used.

32. Section 250 of the Legislation Act provides for a presumption that a document has been served, or given, if: (a) the document was served by email under part 19.5 of the Legislation Act; (b) the sender had no reason to suspect that the document was not received; and (c) no evidence is given which is sufficient to raise doubt about the presumption.

33. Part 19.5 of the Legislation Act applies “to a document that is authorised or required under a law to be served (whether the word ‘serve’, ‘give’, ‘notify’, 14 ‘send’ or ‘tell’ or any other word is used)”. The notices of decision required under sections 196 and 505 of the Planning Act would fall into this description. Such documents would therefore generally be taken to being served ‘under part 19.5’ when served by means set out in sections 247, 248 or 249 such as being 15 emailed to an email address of the individual. 16

34. In Young v Conservator of Flora and Fauna (Young) the question was raised as to whether a document would be served under part 19.5 of the Legislation Act when provisions of other legislation may govern the service of the notice. That case involved the provision of a reviewable decision notice under section 107A of the Tree Protection Act 2005 which is in relevantly similar terms to section 505 of the Planning Act. The Tribunal concluded that neither section 67A of the ACAT Act or part 2.2 of the ACAT Rules provided an alternative legislative regime governing the service of the reviewable decision notice. The notice was therefore served under Part 19.5 of the Legislation Act.

35. I note that the Tribunal in Young considered that Part 2.2 of the ACAT Rules applied to proceedings in the tribunal and not to the obligation in section 67A of the ACAT Act “to take reasonable steps to notify a person of a reviewable

14 Legislation Act s 245 15 Legislation Act s 247(1)(d) 16 [2024] ACAT 65 decision notice” which arises before, or at least independently, of proceedings 17 being commenced. However it is not clear why section 67A was itself not considered by the Tribunal in that case to govern the service of the notice by providing for the giving of notice by taking reasonable steps. It can be inferred that the Tribunal interpreted section 67A as not providing for what it would mean to “give written notice” as I have discussed above.

36. I accept that the respondent in this case did not suspect that the decision notice sent by email was not received by the recipient when sent. There was no bounce back message or other indication that the email address was not an email address of the applicant. It is clear, in this context, that received by the recipient refers to the message being available, and not to having actually being accessed or read.

37. Even if received, a document will not be presumed to have been served if there is some evidence sufficient to raise doubt about the presumption. However, the evidence must go to service, which under section 247(e), for example, is done by emailing it to an email address of the individual. It is not sufficient for there to be evidence, as accepted in this case, that the applicant did not access or read the 18 email. Even if emailing involves the capacity for it to be accessed or read, there was no evidence in this case that the applicant was not able to access emails sent to his Yahoo email address, only that he had chosen to not do so.

38. Section 251 of the Legislation Act prevents Part 15.5 from affecting the operation of various other laws. It states: 251 Other laws not affected etc (1) This part does not affect the operation of any other law that authorises or requires service of a document otherwise than as provided under this part. (2) Despite this part, a law (or, if the law is an Act, a regulation under the Act) may provide— (a) that a document of a particular kind may or must be served (however described) only in a particular way or to a particular address or number; or

17 Young (at footnote 16) at [45]-[46] 18 See for example Peden (at footnote 9) and Young (at footnote 16) where service by post concerned whether the document had been received and not whether the document sent by post had been opened and read (b) for the date (or date and time) when service (however described) of a document is taken to have been made.

39. The provisions of Part 19.5 of the Legislation Act, including section 250, are also 19 non-determinative provisions. Under section 6 of that Act a non-determinative provision may be displaced expressly or by contrary intention. In my view the operation of the Planning Act indicates that section 250 of the Legislation Act, at least to the extent that it allows service on what may happen to be one of many email addresses used by an individual, is of more limited application to this matter than submitted by the respondent.

40. I agree with the respondent’s submission that the context of the Planning Act notice provisions support the need for certainty and finality of decisions made under that Act. However, in my view, that requires the respondent to use email addresses provided to it in relation to the decision in question. Being able to rely on the decision notice and reviewable decision notices having been given through email requires confidence that the email address is correct. It should not depend on whether there is no indication received that the email has not been delivered.

41. The Planning Act requires notice be given, in this case, to someone who makes a representation to the respondent, and not just that there be reasonable efforts made. The Planning Act also limits the time in which, after receiving such notice, the recipient can bring an action in the Tribunal with no ability for that time to be extended. These and the other differences with notice and service requirements discussed above suggest that the respondent must show that it has given the notices to the applicant through use of the email address he provided as part of the respondent’s consideration of the Amendment Application. It is not sufficient to demonstrate that there was an email address provided in relation to an earlier, and in my view, distinct, application and to have expected the applicant to take action to prevent that earlier email from being used.

42. I therefore consider that the applicant was not given the decision notice as required under section 196 or the reviewable decision notice under section 505 of the Planning Act by an email being sent by the respondent to the applicant’s

19 As defined in Legislation Act s 5(3) Yahoo email address. The respondent did not provide any other way in which it had given the applicant notice of the decision for the purpose of section 507 of the Planning Act. It may be that the applicant was given notice of the decision for the purpose of section 507 at least when he in fact became aware of the decision. There was no evidence suggesting that the applicant became aware of the decision more than 20 working days before he lodged his application for review and I would have been satisfied that the application was therefore made within time. Given my conclusions below, however, I do not have to reach a concluded view on this issue.

Whether the application should otherwise be dismissed

43. The issue of the timeliness of an application for review was also relevant to the other basis on which the respondent sought to have the application dismissed. As described above, the application for review sought to review the Amendment Decision. The respondent, however, contended that the grounds put forward by the applicant for why the Amendment Decision should be set aside did not relate to any amendment to the development proposal which was approved in that decision. The grounds raised either related to decisions to approve the original development application or subsequent amendments prior to the Amendment Decisions, which meant the application was out of time, or raised grounds which did not relate to any decision by the respondent and was lacking in substance or an abuse of process and should be dismissed under section 32 of the ACAT Act. 20

44. In giving his reasons for applying in his application for review, applicant stated: The directorate approved a continuous 9-storey “long wall” variant while completely omitting a mandatory statutory winter solstice shadow study, causing an un-evaluated solar wipe-out to my home. Furthermore, the directorate failed to record or respond to my validly lodged statutory representation hand-delivered on 10 February 2026. Please see the full comprehensive text and evidentiary files submitted by email on 13 June 2026.

45. In an email to the Tribunal on 13 June 2026, the applicant sought an urgent application for administrative review and an immediate stay of proceedings. He listed grounds for the stay as irreparable environmental damage to two trees,

20 Application for Review of a Decision dated 15 June 2026, page 3 prima facie jurisdictional error by failing to assess the statutory winter solstice benchmark, and the balance of convenience. He included an email to the ACT Ombudsman which again raised concerns about the lack of a shadow analysis and damage to trees.

46. The applicant repeated these claims at the hearing on the stay application on 17 June 2026. He also raised a concern about the Amendment Decision including a condition requiring a Statement of Acceptance from Icon Water relating to water and sewage networks which, the applicant claimed, had not been provided.

47. In response to the opportunity to provide material going to the Tribunal’s jurisdiction, the applicant described the trigger event for his application to be the issue of a “new variation replacing the NCA-approved 6-storey pavilion design on Forbes Street with an unbroken 9-storey ‘long-wall’ directly opposite my 21 western property boundary”. The submission also references the missing nine-storey continuous wall as the core jurisdiction error, describing a response to an freedom of information inquiry where an officer with the respondent admitting that a new shadow diagram had not been provided or considered as part of the decision to approve the amendments. The applicant included a document headed “Freedom of Information – Notice of Decision” dated 15 May 2026 in response to the applicant’s request for documents relating to the Amendment Decision. The notice provides a link to updated shadow diagrams and then states: “[a] shadow analysis was not provided for the amendment … and as such previous shadow analysis’ have been included”. The applicant also included a mathematical shadow comparison of a 6-storey wall (original 20 m height) and 9-storey wall (proposed 29 m height).

48. The submission also raises “[i]mmediate and Irreversible Environmental Damage 22 to Protected Trees”. It refers to a compliance and assessment document confirming that excavation activities have subjected two critical trees to severe water deprivation, included a protected Japanese Pagoda Tree and a prominent public street tree. The submission then states:

21 Applicant’s submissions dated 22 June 2026, page 1 22 Applicant’s submissions dated 22 June 2026, page 2 [t]he original DA carried strict conditions mandating the retention and deep planting protection zones for these trees. By altering the build to a 9-storey unbroken wall and modifying the basement footprint, the developer is actively breaching environmental conditions, resulting in immediate, un- 23 repairable environmental destruction.

49. The submissions attached an email chain from an official described as being from the Tree protection unit sent on 14 May 2026 which states: The assessment noted that the trees are presenting with signs indicating varying levels of stress as a result of the harsh environment the urban forest faces. Of these trees, the … ‘Raywood’ is exhibiting the most signs of stress and sun scalding …

50. I note that the email also states: At the time of inspection, it was determined that there was no evidence a breach of legislation has occurred. All three trees have tree protection exclusion zones, with fencing placed at a sufficient distance from the trunks. Each of these exclusion zones are irrigated with mulch spread throughout. All three trees are exhibiting autumn colour appropriate for the species and there is no evidence or indication that the protected trees have been damaged.

51. The submissions also raised concerns about defects in the electronic file maintained on the public registry making it “impossible to review the clear, uncorrupted facts of this variation prior to the public notification deadline”, and that utility endorsement or a tree watering schedule “secured after the fact … does 24 not heal the underlying jurisdictional error at the time the decision was made”.

52. At the hearing on jurisdiction on 24 June 2026, the respondent provided detailed plans which were included both in the original development application and the Amendment Application. Those plans show that there has been no substantial change either to the number of storeys on the buildings fronting Forbes Street, or the respective locations and gaps between those buildings. They indicate that the roof level has been increased in some places by a maximum of 50 mm. They also indicate that while there are buildings in the development which do not face Forbes Street and which extend to 9-storeys, the number of storeys and locations of those buildings has not been changed by the Amendment Application.

23 Applicant’s submissions dated 22 June 2026, page 3-4 24 Applicant’s submissions dated 22 June 2026, page 6

53. The respondent also provided evidence going to approvals for tree removal as part of the development, including referral to the Conservator of Flora and Fauna for advice and consideration by the Landscape Review Panel. There had also been conditions included with the original development approval relating to protection of remaining trees. The respondent submitted that there was no provision for additional tree removal or changes to tree protection measures in the Amendment Application. The Amendment Application included some modification to landscaping which did not affect the trees identified by the applicant as facing stress. The Conservator of Flora and Fauna had no comments on the Amendment 25 Application.

54. The respondent also provided evidence at the hearing on jurisdiction of the Icon Water Statement of Acceptance which was a condition of the Amendment Approval.

55. The applicant was provided with the opportunity at the hearing to indicate why he believed that the Amendment Application had proposed a change from six-storeys to nine-storeys which required an amended shadow diagram but was unable to do so. He had indicated in emails to the respondent prior to the hearing on jurisdiction that he had difficulty in accessing the electronic versions of the plans but did not indicate any reason why those plans had been altered or for some reason did not represent the amendment application. He requested further time to seek expert advice due to what he described as the technical nature of the plans. However, given the number of storeys, heights and separation between the buildings was clearly visible on the plans I did not consider such technical advice to be of any value. I therefore considered it appropriate, given the possible further costs and uncertainty for the respondent and parties joined and objective and the Tribunal’s principle of ensuring procedures are as simple, quick, inexpensive and 26 informal as is consistent with achieving justice, to not grant an adjournment to enable the applicant to seek expert advice.

25 Tribunal documents page 159-160 26 ACAT Act s 7 Consideration

56. It is clear on the evidence before the Tribunal that the Amendment Application does not involve a change from six-storeys to nine-storeys, either in relation to the buildings fronting Forbes Street which might cast a shadow on the applicant’s property or generally. The description in the notice of decision of the amendments to the approval sought in the Amendment Application describe the roof levels 27 being raised by 50 mm “to allow for insulation and services…”. The plans included with the Amendment Application clearly indicate that the roof levels of the buildings fronting Forbes Street have been raised by at most only 50 mm and there is no change to the number of storeys of any of the buildings, including those fronting Forbes Street.

57. The amendment to the buildings generally is described in the notice of decision as “revised column locations and, slab thickness 50mm to support cantilevers, 28 glazing adjustment to improve weatherproofing”. There is no suggestion that the gaps between building has been significantly amended. A comparison of the plans as original approved and those accompanying the Amendment Application show no change to the location of the buildings fronting Forbes Street or the gaps between them.

58. The applicant was not able to suggest to the Tribunal why he considered the amendment application to involve a change from six-storey to a continuous nine-storey wall, or any other reason why the amendments warranted a new shadow diagram. He indicated that he had received some advice, but was not able to identify the basis for that advice. There was no indication that the applicant may be able to provide any evidence if given a further opportunity which may go to the issue of why the amendment involved a change from six- to nine-storeys, involved a change from discrete to continuous buildings or other amendments so as to require an amended shadow diagram.

59. The respondent’s evidence also clearly establishes that the Amendment Application does not involve provision for any additional trees to be removed or

27 Tribunal documents page 3 28 Tribunal documents page 3 change to the protection measures needed to mitigate any effect on the remaining trees. The changes to the basement or landscaping proposed by the Amendment Application does not involve any changes to the excavation required which would give rise to increased stress or undermine the roots of the existing trees. The Conservator of Flora and Fauna was asked for advice on the Amendments and had no comments on the Amendment Application.

60. The applicant was not able to indicate any basis on which he believed that the Amendment Application had provided for removal of any trees or significantly changed the risks faced by any remaining trees. The concerns he raised related to the comments by inspectors in email correspondence which indicated the stress caused by excavations that had occurred up to that point. There is no indication that any stress on the trees was increased due to excavations resulting from changes to the development in the Amendment Application. The applicant was unable to indicate what evidence he might be able to provide which may go to the issue of why the amendment involved an increased risk to remaining trees on or near to the block in question.

61. The respondent’s evidence also establishes that any required information or approvals from other entities, including from Icon Water, included as conditions in the Amendment Decision, had been provided or obtained. The applicant was not able to provide any basis on which the existence of conditions themselves could be considered an error, or why there was any doubt about the conditions having been fulfilled.

62. An application should be summarily dismissed because it is frivolous or vexatious or lacking in substance under section 32(1) of the ACAT Act only after exercising 29 30 “exceptional caution”. As recently stated in Bolaram v Lhuede: An action is frivolous or vexatious if it is “so obviously untenable that it cannot succeed” or where there is “no real question to be tried in the sense that the claim is bound to fail”. Where an applicant is self-represented, the tribunal must seek to ensure the proper administration of justice in a manner which is procedurally fair to

29 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, cited in Farah v Sandilands [2021] ACAT 92 at [95]; Elbashir v Focus ACT Ltd [2024] ACAT 76 at [28] 30 [2026] ACAT 9 both parties. This can be particularly challenging where one party is legally represented and the other is not. In Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [31]–[32], the Tribunal called for the exercise of caution when making summary dismissal applications in discrimination proceedings where an applicant is self-represented. It pointed out that relevant evidence may be given at the hearing and: it is not uncommon for a complainant’s case to change at the hearing as new evidence emerges and its significance is appreciated, often for the first time, as a result of questioning by the tribunal. Provided a respondent is afforded procedural fairness in dealing with the new material, there is nothing surprising, unusual or unfair about this, particularly where the complainant is self-represented and the respondent has legal representation, as is typically the case. As such, it is not unusual for some flexibility to be shown at first instance when it comes to the parameters of a claim, particularly in civil claims. The tribunal typically exercises quite some caution in striking out a matter at first instance. However, there is no purpose to be served in allowing proceedings to continue on foot in circumstances where the applicants’ case, taken at its 31 highest, cannot possibly be sustained nor the relief sought granted.

63. I consider the same caution is generally applicable to whether the claim is lacking in substance.

64. Even if I accept the applicant’s contentions that an amended shadow diagram analysis would be required if the Amendment Application had involved a change from six- to nine-storeys or otherwise would create a shadow amounting to a nine-storey continuous wall, the premise of that contention is absent. I am satisfied on the evidence provided by the respondent that the Amendment Application does not involve a change from six- to nine-storeys as claimed by the applicant. Even allowing for the interim nature of the proceedings, the applicant was provided with an opportunity to indicate any evidence which he may seek to provide in the future which might go to that contention. I am satisfied that no such evidence is reasonably available.

65. I am also satisfied that approval of the Amendment Application will not lead to the removal of any additional trees or adversely affected the remaining trees on the block in question. To the extent there are concerns over the effect of the excavations on the remaining trees, those concerns do not arise because of any

31 [2026] ACAT 9 at [56]–[59], footnotes omitted changes to the development proposal included in the Amendment Application. I am satisfied that, even if I accept that there are trees on or near the site in question which are being unduly affected by excavations and development on the site, there is no evidence which might be reasonably available which would indicate that effect is the result of changes approved in the Amendment Decision. Any concerns with excavations and tree protection complying with the various development approvals is a question of compliance and not the subject of a review by this Tribunal of the Amendment Decision.

66. Therefore, given the principle of ensuring that procedures of the Tribunal are as 32 simple, quick, inexpensive and informal as is consistent with achieving justice and the interests of finality inherent in the limitations on access to review of decision under the Planning Act, I considered it appropriate to make orders under section 32(1) of the ACAT Act dismissing the application.

……………………………….. Presidential Member D Stewart

Date of hearing: 24 June 2026 Applicant: Self-represented Solicitors for the Respondent: ACT Government Solicitor Solicitors for Parties Joined: Clayton Utz

32 ACAT Act s 7(a)(i)