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BETWEEN: FRIENDS OF HAWKER VILLAGE INC. Applicant AND: TERRITORY PLANNING AUTHORITY Respondent

TRIBUNAL: Senior Member R Arthur Senior Member G Tomlins DATE: 14 July 2025

ORDER 1. Pursuant to S 68 ACT Administrative and Civil Tribunal Act 2008, the decision under review is set aside and the matter is remitted to the respondent for re-consideration in association with Development Application 202443691 or otherwise as the respondent sees fit.

…………Signed……… Senior Member R Arthur For and on behalf of the Tribunal REASONS FOR DECISION 1. In this matter the Tribunal made orders following the first directions hearing. It did so after forming a provisional view that approval could not be given to the application for variation of the lease, which was devoid of any reference to physical development, and to conserve tribunal resources.

Background The development application 2. The subject land is Block 10 Section 26 Weetangera (Block 10) and is in zone RZ1. The Crown lease permits the land to be used for residential purposes only. DA 202443694 (DA - 94) was lodged by Purdon Planning Pty Ltd, authorised to do so by the Crown lessee FAA Holdings Pty Ltd, and describes the proposed development as: Lease variation to add ‘early childhood education and care’ used to the Crown lease purpose clause with a maximum of 86 childcare places. No physical works proposed, the design and siting will be part of a subsequent DA.

3. In fact, a development application had been made earlier, as DA 202443691 (DA - 91). It sought approval for the design and siting of the physical works proposed. However, on 15 May 2025 a delegate of the Territory Planning Authority (the Authority) gave the development application applicant pre-decision advice under section 182 of the Planning Act 2023 (the Act). That advice was to the effect that the application in its current form does not meet the requirements of the Territory Plan 2023 (the Plan) and made recommendations as to ways in which the application may be modified for approval. It advised that the time to decide the development application had been paused, but noted that if no action was taken by the applicant within 18 months the application will be taken to have been withdrawn.

The development approval

4. On 20 May 2025 the delegate of the Authority approved DA - 94, subject to certain conditions. Appendix C to the Notice of Decision records the advice of the Authority’s Assessment and Environment Advisory Panel recommending that the application be progressed to a conditional approval decision for the use but not the number of places sought, taking into account the advice from the referral entity Children's Education and Care Assurance agency that the placement numbers can be determined as part of a design and siting development application.

5. Block 10 is a very large block. It is wedge-shaped with the narrow end at the street frontage, and shares a boundary with seven surrounding blocks.

Application to the Tribunal

6. Separate applications have been made, by Michael Parker (AT 63/2025) and Friends of Hawker Village Inc (AT 64/2025), for the Tribunal to review the decision of the delegate of the Authority in respect of DA - 94. The Act applies to the development application and the applications to the Tribunal.

Directions hearing

7. The applications were lodged with the tribunal on 16 and 17 June 2025. They were listed for a joint directions hearing which was held on 14 July 2025.

8. At the first directions hearing Mr Parker represented himself, and Friends of Hawker Village Inc was represented by Ms C Gyngell. Mr S Tahir from the ACT Government Solicitor Office represented the Authority. Three entities seeking to be joined as parties to the proceedings — Ms S Manuel and Ms D Lillington, both nearby residents, and the Weetangera Primary School P&C Association represented by Mr J Sheahan — were also present, though ultimately not joined as parties.

9. By section 504 of the Act both the Crown lessee and the applicant named in the development application are interested entities for the purposes of the tribunal review proceedings, and eligible to be joined as parties. The Tribunal Documents record that both Purdon Planning Pty Ltd and FAA Holdings Pty Ltd were given notice of the review applications. However, neither had applied to be joined as a party nor were represented at the directions hearing.

10. In the course of the directions hearing the Tribunal made observations summarised below: Although pursuing a single development proposal, the development proponent applied for approval by the planning authority in separate development applications – the first for design and siting approval (DA 91) and then later for lease variation approval (DA 94). The delay to the first has meant that the lease variation approval is the first in time to come before the Tribunal. Whether and when the design and siting approval may catch up with it is unknown. In the meantime, the Tribunal must make a decision whether to confirm, vary, or set aside the approval decision and substitute another decision or remit the matter to the authority. The Territory Plan Lease Policy Assessment Outcomes and Requirements must be met if the authority's decision is to be confirmed. It is difficult to see, however, how they can be met. The language of those provisions – "functionality and usability of the development" is not easily applicable to a lease variation which is unconnected to a physical development. That may be a sufficient reason to refuse approval without more. If the Tribunal were to proceed it would be a completely hypothetical exercise. And given the range of issues raised by the residents, representors, it would be a very extensive exercise. Further, the Lessee shows no real interest in these proceedings, even without the news that the property might be on the market. In those circumstances, we are not minded to expend the tribunal’s resources and everybody else's resources in an exercise which really doesn't go anywhere. Against that is the possibility of remitting the matter to the Authority which would then be able to combine the two halves of the package and sort things out.

11. After consultation with the parties, including a short adjournment to enable the Authority to consider its position in relation to the possibility of remittal of the matter to it, the Tribunal made the following order: Pursuant to S 68 ACT Administrative and Civil Tribunal Act 2008, the decision under review is set aside and the matter is remitted to the Respondent for re-consideration in association with Development Application 202443691 or otherwise as the Respondent sees fit.

12. In essence, the Tribunal at that time thought that, although it seemed that the lease variation approval ought not to have been made, as a matter of discretion the preferable course was to set aside the approval decision and remit the matter to the Authority. The advantage in doing so was that it was a result satisfactory to the resident applicants and left the Authority in a position of being able to address the matter if and when the development proponent showed any interest in pursuing it.

13. Subsequently, a request was made under section 60 of the ACT Civil and Administrative Tribunal Act 2008 for the delivery of written reasons. In formulating its written reasons, the Tribunal has had the opportunity to consider further the issues surrounding the validity of the lease variation approval, and has confirmed its provisional view and concluded that approval cannot be given. Setting aside the approval is the correct decision. Nonetheless, there is an advantage in retaining the remittal order for the reasons expressed above.

14. The Tribunal’s more considered reasons follow.

The issue

15. Somewhat by chance, the Tribunal has before it an application for review of the approval of a development application seeking only the variation of a lease. The concomitant development application for approval of the development's design and siting remains with the Authority. As the subject of adverse pre-decision advice, the existence of the development in any particular form is unknown.

16. Although the practice of applying just to vary a lease has been followed in the past — a common example is an application to vary the clause limiting the permitted gross floor area — the question here is whether a variation which consists only of the addition (or substitution) of another permitted use is capable of being approved under the existing legislation and planning regime.

17. The answer depends on the application of the relevant plan provisions properly construed.

Applicable Plan provisions

18. Reflecting the division of the Territory into districts and zones, the Plan ordains policies relevant to each. It also sets out “other policies”, applicable in all districts and zones, which are to guide the orderly development of land in the ACT — one such policy regarding subdivision of land, and the other for the unique leasehold system, specifically to assess applications that propose new or additional uses in the Crown leases. The “other policies” apply to relevant “development types” across all districts and zones.

Governance Provisions

19. Part A of the Plan determines the manner in which the Plan operates. The structure, and the use, of the Plan is set out in Parts A.3 and A.4 respectively. 1

20. The role of policy outcomes and assessment outcomes is set out as follows: Policy outcomes The policy outcomes within the district, zone and other policies describe the desired development outcome to be achieved in a specific district or zone, or to be achieved through a subdivision or lease variation. For zones and districts, these outcomes identify how one zone is different to another or features that are of particular importance in a district (or part of a district). The policy outcomes inform the assessment outcomes for a zone or district and are used in the assessment process to guide compliance with the assessment outcomes to deliver the desired development outcomes for an area. Assessment outcomes The primary assessment consideration for a development application is the assessment outcomes in the district, zone and other policies. Assessment outcomes are consistent with the policy outcomes in the Territory Plan policies and specify the desired outcomes to be achieved by a development proposal. Policy provisions

21. Parts D and E of the Plan are the District Policy and the Zones Policy, which set out the policy outcomes and assessment outcomes for the five districts and eight zones. Part F concerns the “Other Policies” consisting of Part F1 — Subdivision Policy, and Part F2 — Leasing Policy. 2

22. The Leasing Policy is: Application 3 The Lease Variation Policy applies to any development where varying a Crown lease is proposed and applies across all zones of the Territory Plan. It is to be read in conjunction with the relevant district policy and zone policy. Policy Outcomes Development proposals involving a variation of a Crown lease will be assessed (in conjunction with the policy outcomes in the relevant district policy and zone policy) having regard to policy outcomes specified applicable to all zones: 1. To ensure a new use is suitable for the site and has limited impacts to surrounding areas including public spaces and on leased land.

1 Territory Plan, pt A.4 2 Territory Plan, pt F, F2 – Leasing Policy 3 It is titled as the ‘Leasing Policy’ only in the Index/Contents section of the Plan 2. Crown leases are only varied where it has been demonstrated that the varied Crown lease and use will be suitable for the block/site. 3. Crown leases are only varied where relevant services are provided to the service providers satisfaction. Assessment Outcomes Consistent with the lease variation policy outcomes and the relevant zone policy outcomes, development proposals must demonstrate that they are consistent with the assessment outcomes stated below. Development proposals must also demonstrate that they are consistent with the relevant district and zone assessment outcomes. In demonstrating compliance with the assessment outcomes, consideration is to be given to the relevant design guides and may be given to planning technical specifications which may serve as a benchmark. While all assessment outcomes are to be met, not all outcomes are covered by a design guide and/or planning specification. Where a proposed development complies with a relevant provision in the design guide and/or planning specification and the development comprehensively addresses the assessment outcome, further assessment regarding those assessment outcomes will not be required. (emphasis added)

23. Under the heading “Specific Assessment Outcomes”, the assessment outcomes 4 for proposed lease variations are set out: Site and Land Use The functionality and usability of the development is appropriate for its intended purpose/use. This includes limiting future adverse impacts between permissible land uses and on surrounding areas. Additional uses and rights An additional use or right under a lease is increased only where it is demonstrated: 1. Sufficient car parking is capable of being provided for the current uses and additional development. 2. Any potential increase in traffic flow is within the capacity of the surrounding road network. 3. adequate post-occupancy waste management and disposal can be provided to the relevant Territory standard. 4. Note: Examples of rights are the maximum gross floor area, the maximum floor area allocated to a particular use, and building heights.

4 Territory Plan, pt F, F2 – Leasing Policy Consideration

24. Up to this point we have not used the term ‘development’ in any particular sense other than in accordance with its ordinary meaning — a building project. What may be important for present purposes, however, is any particular sense in which the term is used in the Planning Act and the Territory Plan.

“Development”

25. The term is defined in the Act, when used in relation to land, as one or other of a number of activities set out in section 14(1). They include building, altering or demolishing a building or structure, undertaking earthworks or other works on or under the land or work affecting the landscape, using land or a building or structure, subdividing or consolidating the land, varying a lease relating to the land, and displaying unauthorised signs. Each of those activities is ‘development’ for the purposes of the Act. ‘Development proposal’ is defined in the Dictionary of the Act as “a proposal for development”.

26. The activity of ‘using the land’ is particularised in section 15 of the Act where the “use” of land is said to mean any of: beginning a new use, continuing a use, and changing a use whether by adding a use or stopping the use and substituting another or otherwise.

27. The combined effect of these definitions is that a Crown lessee using land for one purpose but wishing to use the land for another purpose must obtain development approval to do that if the new use is not already permitted. Obtaining that permission entails varying the lease, for which development approval is also required.

28. The Plan is a notifiable instrument for the purposes of the Legislation Act 2001, and therefore is a statutory instrument. Having been made under the Act, the terms in the Plan have the same meaning as the same terms in the Act: section 148.

29. The Plan has its own Dictionary in which to find land use terms and general concepts used in the Plan. ‘Development’ does not appear in the Dictionary.

30. On the other hand, ‘Consolidation’, ‘Demolition’, ‘Subdivision’ and ‘Varying a lease’ are listed in the Land Use Table of the Residential Zones Policy under the heading ‘Land Use/Development Type’ as permissible in all Residential Zones. ‘Demolition’ is exhaustively defined in the Dictionary, where ‘consolidation’ and ‘subdivision’ are said to have the same meaning as in sections 256 and 7 of the 5 Act respectively. ‘Varying a lease’ is not mentioned.

Interpretation principles

31. Words in a statute are to be given their ordinary meaning in the grammatical 6 context in which they used. If they are defined for the purposes of the statute, they are to be given their defined meaning. A statutory provision should be construed so that it is consistent with the language and purpose of all of the provisions of the statute: its meaning must be determined by reference to the 7 language of the statute viewed as a whole. Generally, in working out the meaning of a statute, the interpretation that would best achieve the purpose of the statute 8 is to be preferred to any other interpretation.

The nature of the lease variation and its effect

32. The lease variation sought was described in the Notice of Decision as “Lease variation to add ‘early childhood education and care’ use…. with a maximum of 86 childcare places”. Approval was given to the use but not to the number of childcare places, as that number could not be determined until the design and 9 siting proposal had been approved. The ‘leasing policy’ is noted as having been considered, but what was considered was not recorded. This may reflect the fact that the physical aspects of the development were unknown and thus incapable of consideration in terms of their impact.

5 Planning and Development Act 2008 s 7 is the corresponding provision to s 14 of the Act, which is no doubt the intended reference 6 nd Herzfeld & Prince, Statutory Interpretation (Lawbook Co, 2 ed, 2020) at [2.10] 7 nd Herzfeld & Prince, Statutory Interpretation (Lawbook Co, 2 ed, 2020) at [5.20]; Legislation Act 2001 s 140 8 Legislation Act 2001 s 139, which also applies to statutory instruments 9 Notice of Decision, pages 6 and 13

33. In most cases, a lease variation that does no more than add an additional permitted 10 use has no impact because it cannot come into effect until the applicable lease 11 variation charge has been determined and paid. There being no physical development as the basis for the calculation of the increase in value of the land, the amount of the charge cannot be determined. The present case is an exception — childcare centre development approvals do not attract a lease variation 12 charge. Accordingly, this approval would come into effect as soon as it was registered.

34. In most cases, therefore, it will not be until a subsequent development application which quantifies or gives physical shape to the development proposal is approved that the consideration required by the Leasing Policy could be undertaken. The legal basis for then doing so might be a question because the lease variation approval might not have come into effect, but the approval decision-making process has been completed. There is no mechanism in the Act for an approval decision to be reopened. There is provision for an approval to be amended but it does not enable what is, effectively, a remaking of the original decision.

35. The Act does make provision, on the other hand, for the situation where a design and siting approval precedes a lease variation application — section 210 postpones the coming into effect of the design and siting approval until the 13 subsequent lease variation approval takes effect.

36. The operation of a childcare centre being an authorised use, it would be open to the current Crown lessee of Block 10 to convert the existing residential dwelling 14 to that use without the need for approval. While the resulting childcare centre operation may be on a very small scale, it may have the potential to affect some immediate neighbours and the demand for parking in the area. Though there is no indication of such an intention at the present time, it may occur in the future. It is

10 Cf the observation of Higgins J in Jewel Food Stores v Minister for the Environment Land and Planning (1994) 122 FLR 269 at [31] – “in one respect, of course, a variation to the Crown lease [to increase the GFA limit] would change nothing … without structural expansion of the premises … ” 11 Act s 328 12 Act s 327(c) and Planning (General) Regulation 2023 reg 71(1)(d) 13 Act s 210, table 210, item 4, column 3(b) 14 The change of use to an authorised use is exempt development arguable that demonstration of compliance with the Assessment Outcomes requires consideration of this possibility. Probably, for that reason, the existing physical elements would have to be considered for compliance with the assessment outcomes.

37. In the exercise of our discretion, we do not propose to take that course, given the evidence suggesting that the current lessee has no such intent.

Demonstration of compliance

38. The Policy requires that Policy Outcomes are to be used in the assessment process as a guide to achieving the stated policy outcomes.

39. To that end development proposals must demonstrate “consistenc[y]” with the stated Assessment Outcomes. To demonstrate the required “compliance” (synonymous with ‘consistency’) it must be seen that relevant design guides have been considered, which may be helped by consideration of technical specifications serving as a benchmark.

40. The Assessment Outcomes are concerned with ‘Site and Land Use’ - where functionality and usability of the development must be appropriate for the intended purpose/use, limiting future impacts within and outside the block/site, and ‘Additional uses and rights’ where increases in uses or rights do not detrimentally affect car parking capacity and traffic flow in the area, and meet waste management and disposal standards.

41. Compliance with an assessment outcome is a pre-condition for approval. An essential element of that compliance involves reference to the design guides, with the technical specifications also said to be relevant.

42. The imperative nature of the direction to consider the design guides and technical specifications is not out of place in relation to a design and siting application. The design guides, supported by the technical specifications, provide guidance to assist in ensuring that the built form is functional and usable, and in other ways important to good planning, an appropriate use of the site. It is, however, hard to make sense of it in relation to a bare lease variation unconnected with any physical works.

43. The policy is expressed to apply to any development where varying a Crown lease is proposed. It does not say that it also applies to development that consists only of varying a lease. This distinction is reflected in the reference in the Policy Outcomes to development proposals involving a variation of a Crown lease. The expressions ‘where’ and ‘involving’ signify connection between two elements, the latter particularly suggesting something included as an essential element. This language does not contemplate a bare lease variation which, though itself is a type of development, is unattached to any other form of development.

44. The Plan and the Act complement each other, consistently with this interpretation. The Act emphasises the lease variation as an essential element of a development proposal by postponing the commencement of its approval until the approved development is authorised by the Crown lease. The Act also stymies the 15 commencement of a lease variation approval (though exceptions are possible) which does not involve a physical development by the requirement that any lease variation charge be paid first.

Conclusion

45. The clear language of the Leasing Policy does not leave any room for doubt that a lease variation cannot be approved without consideration of the design guides and technical specifications. That consideration is possible only if there are physical works proposed in association with the lease variation, or existing 16 development which is proposed for consideration. That intent is consistent with the wider context of the scheme, including the provisions of the Act which highlight the significance of the presence or absence of associated physical works.

46. In our view, it is not open to us to confirm the decision of the Authority. The correct decision is to set it aside. Although it would thus be appropriate to substitute a decision refusing approval of the application, for the reasons

15 Encouragement of development of child care centres has been government policy for some time. Waiving the lease variation charge for such a reason does not undermine the planning intent behind the broad application of the rule. 16 Other instances may possibly exist, given that the Policy applies across all zones where the factual circumstances may vary considerably. indicated we prefer to remit the matter to the Authority. The order that we have previously made, accordingly, stands.

……………………………….. Senior Member R Arthur For and on behalf of the Tribunal

Date of hearing: 14 July 2025 Applicant, AT 63/2025: Self-represented Applicant, AT 64/2025: Ms C Gyngell, authorised representative Solicitors for the Respondent: Mr S Tahir, ACT Government Solicitor