ACT Civil and Administrative Tribunal|2009-05-18

Roberts & Ors and ACT Planning & Land Authority and Anor (Administrative Review) [2009] ACAT 10 (18 May 2009)

ROBERTS & ORS and ACT PLANNING & LAND AUTHORITY and ANOR (Administrative Review) [2009] ACAT 10

LAND AND PLANNING - Territory Plan - technical amendment - question of relevant version that applies to the application under review

LAND AND PLANNING - approval of development application by authority - sections 177 and 178 of the Planning and Development Act 2007 (ACT)

Administrative Appeals Tribunal Act 1989 (ACT), Pt 4, s 37

ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), s 6

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 9, 22B, 68, 69

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577

Costello and Secretary, Department of Transport [1979] AATA 184; (1979) 2 ALD 934

Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Byfield and Commissioner for Land and Planning [1998] ACTAAT 262

Nowicki v Martyn [1996] ACTSC 17

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

Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819

Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259

Simpson v Bass Coast SC [2007] VCAT 165

Bass Coast SC v Christian Brethren Trust [2006] VCAT 1958 Chang v Laidley [2007] HCA 37; [2007] 234 CLR 1

ACT Planning and Land Authority, Territory Plan (commenced 31 March 2008)

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 88 of 2008

The decision under review is set aside and substituted with the decision that approval of the development application is refused.

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 88 of 2008

1. Barry & Christine Roberts, Paul & Irene Elford, Eugene Olim, Carol Allnutt, Ian & Gaye Greed, Vicki & Peter Donnelly, BJ Barton and Cathy & David Oswald ('the applicants') have sought review of a decision of the ACT Planning and Land Authority as decision-maker ('the respondent') to approve, with conditions, Development Application No 200812308 ('the DA'). The DA sought to consolidate Blocks 10 and 11 Section 32 Monash, to demolish the existing structures and to erect a 2-storey building containing eleven (11) apartment units with basement car parking. The lessees of Blocks 10 and 11 are Seville Ronald Thomas and Figjam Developments Pty Ltd ('Figjam' or 'the party joined'). Figjam made an application to be joined to the proceedings and this application was granted on 27 November 2008.

2. The DA was lodged by Urban Design and Drafting ('Urban Design') on 8 August 2008. Urban Design did not formally join the proceedings but attended the interlocutory hearing held by the Tribunal on 29 April 2009. The proposed development is being conducted by Figjam and Urban Design. These two enterprises will be referred to hereafter as 'the developer'.

3. The DA was approved by the respondent on 13 October 2008. The decision was made pursuant to s 162 of the Planning and Development Act 2007 (ACT) ('the Planning Act') to approve a development application in the merit track.

4. The applications for review were filed on the following dates:

AT08/88 7 November 2008
AT08/89 7 November 2008

AT08/91 7 November 2008
AT08/92 7 November 2008
AT08/93 7 November 2008
AT08/94 10 November 2008
AT08/95 10 November 2008

5. The applicants were entitled to apply to the Administrative Appeals Tribunal ('AAT') under provisions of the Planning Act. Section 408(1) allows then to seek review of the decision because each of the applicants had made a representation about the DA during the public consultation period under s 156 and therefore constituted 'eligible entities' as defined in s 407 and Schedule 1 of the Planning Act in relation to the decision to approve the DA.

6. The review was originally sought under Part 4 of the now repealed Administrative Appeals Tribunal Act 1989 (ACT) ('the AAT Act') but by virtue of s 6 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT) ('the Regulations') and because a hearing of the matter had not commenced prior to 14 February 2009, it is deemed to be an application for review by the ACT Civil and Administrative Tribunal ('ACAT') under s 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ('the ACAT Act').

7. At a directions hearing on 8 December 2008, an order was made by, the then AAT President, Mr Peedom for the applications for review to be heard together and it was foreshadowed by the respondent that a preliminary hearing on the question of the Tribunal's jurisdiction would need to be held to consider the effect of a Technical Amendment to the Territory Plan, Code Variation V2008-10 ('V2008-10'), that had commenced on 21 November 2008. President Peedom directed that the applicants, the respondent and the party joined provide Statements of Facts and Contentions in relation to the issue of jurisdiction.

8. A mediation was held on 9 December 2008 but the matter was not resolved at the mediation. Further directions hearings were held by ACAT on 20 February 2009, 12 March 2009 and 15 April 2009.

9. The interlocutory hearing regarding the Tribunal's jurisdiction was held on 29 April 2009. The Tribunal had before it the documents (the 'T docs') which were prepared pursuant to s 37 of the AAT Act, which meet the requirements of s 22B of the ACAT Act. It also had before it Statements of Facts and Contentions in relation to the Tribunal's jurisdiction submitted by the applicants, the respondent and the party joined.

10. The land subject to the DA - Blocks 10 and 11 Section 32 Monash - is within the RZ2 Suburban Core Zone. Each of the blocks is a 'standard block' within the meaning of that term in the Territory Plan 2008[1] because each block has an area greater than 500 square metres and was originally leased or used for single dwelling housing.

11. Section 119(1)(a) of the Planning Act provides that development approval must not be given for a proposal in the merit track unless the proposal is consistent with the relevant code. The relevant code is the Multi-Unit Housing Development Code ('the MUD Code')

12. As at the date of the decision, 13 October 2008, Rule R10 of the MUD Code provided:

a) On a standard block (or a block resulting from the consolidation of these blocks), the maximum number of dwellings permitted is three, unless the block boundary fronting a street from which vehicular access is permitted is greater than 20m wide.

b) No new apartments are permitted on a standard block (emphasis added)

This is a mandatory requirement. There is no applicable criterion

13. This rule did not prohibit the proposed development because, for the purposes of paragraph (b) of Rule R10, the development was not on a standard block as it had been created by the consolidation of two standard blocks.

14. On 12 September 2008 the proposed technical amendment to the Territory Plan Code Variation V2008-10 ('V2008-10') was released for comment. Technical amendments to the Territory Plan are prepared in accordance with the Planning Act. Pursuant to s 87(b) of the Planning Act, a code variation is a technical amendment that:

(ii) is consistent with the policy purpose and policy framework of the

15. The Explanatory Statement to V2008-10 at page 5 makes the following observations about the proposed amendment to Rule R10 as follows:

The wording of the [Rule R10 (b) as at 13 October 2008] makes it unclear whether the rule applies to standard blocks and also the consolidation of standard blocks, as was intended. This code variation proposes to clarify that the rule is intended to apply to standard blocks and blocks resulting from the consolidation of standard blocks but not to non-standard blocks (i.e. existing and planned multi-unit sites as well as sites not previously used for residential purposes).

16. V2008-10 amended the MUD Code by substituting Rule R10 as follows:

On a standard block (or a block resulting from the consolidation of these blocks):

a) the maximum number of dwellings permitted is three, unless the block boundary fronting a street from which vehicular access is permitted is greater than 20m wide.

This is a mandatory requirement. There is no applicable criterion

17. V2008-10 was notified on 20 November 2008. It commenced the day after it was notified, that is, on 21 November 2008. The amended Rule R10 prevents new apartments on blocks resulting from the consolidation of standard blocks.

What is the relevant version of the Territory Plan that applies to the application for review?

18. The jurisdiction and the powers of the Tribunal to review the decision of the respondent to approve the DA must take into account the general provisions of the ACAT Act and the specific provisions of the Planning Act defining the characteristics of the decision that is subject to review. As stated by Kirby J in Shi v Migration Agents Registration Authority ('Shi'):

Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted.[2]

As regards the ACAT Act, s 68 provides that the Tribunal may exercise any function given by an Act to an entity for making a decision and s 68(3) states that ACAT must confirm, vary or set aside the decision. The effect of an order under s 68(3) of the ACAT Act is stipulated in s 69(2) which specifies that the order is:

(a) taken to be the decision of the decision-maker; and

(b) takes effect from the day the tribunal makes the order, unless the tribunal

Thus the tribunal 'stands in the shoes of the decision-maker'[3] in arriving at its decision.

19. The specific provisions of the Planning Act define the characteristics of the decision that is subject to review. In this case the development is subject to the provisions of the Planning Act and in particular, s 50 which provides that:

the Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the territory plan.

ACAT is a territory authority for the purposes of this provision. Neither the respondent, nor ACAT standing in its shoes in this review, may approve the development if it is inconsistent with the Territory Plan.

20. Prima facie, the combined effect of sections 68 and 69 of the ACAT Act and s 50 of the Planning Act would require that the version of the Territory Plan that applies to the DA would be the version that incorporates V2008-10. This would preclude the Tribunal from approving the DA because the newer version of the Territory Plan only permits three apartments to be built on consolidated standard blocks rather than eleven apartments if the version of the Territory Plan operative on 13 October 2008 is applied.

21. The primary question for the Tribunal is whether the application for review involves an investigation of 'a present entitlement to the grant of a right or a privilege'[4] or conversely, that the approval of the DA conferred upon the developer a right which had accrued at the date of the change of the instrument.[5]

22. Sections 177 and 178 of the Planning Act determine when a development approval comes into effect. Section 177 states that a development approval takes effect 20 working days after the final notice of the decision to approve the application is given to persons who have made representations about the development. Section 178 also applies in the current proceedings. It states as follows:

When development approvals take effect - ACAT review

the planning and land authority or Minister approves a development application under section 162; and 2. application is made to the ACAT for review of the decision to approve the application and the ACAT confirms the decision (whether completely or partly); and

the development does not include an activity not allowed under the lease for the land on which the development is proposed to take place; and

the approval is not subject to a condition that something must happen before the approval takes effect; and 2. no application has been made under division 7.3.10 for reconsideration of the approval.

The approval of the development application takes effect on the latest of the following days:
1. the day the approval would take effect under this division if no application had been made to the ACAT for review of the decision to approve the application;
2. the day after the day the approval is confirmed by the ACAT

23. Mr Mossop, on behalf of the respondent, argued that the approval in the present case did not come into effect because the applications for review were lodged within 20 working days after notice of the decision was given, therefore sections 177 and 178 of the Planning Act operate to preclude the approval taking effect.

24. The converse argument is that the developer accrued a right under the version of the Territory Plan which operated on 13 October 2008 and this right must be taken into account by the Tribunal when considering the application for review. This point was relied upon by Mr Phan on behalf of the developer and is based upon the operation of s 84(1) of the Legislation Act 2001 (ACT) ('the Legislation Act') which states that the repeal or amendment of a law does not:

Section 84(6) defines 'right' to include capacity, interest, status and title.

Is the approval of the development application by the respondent an accrued right?

25. In Esber v Commonwealth[6] ('Esber') an application for redemption of weekly compensation under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) was rejected by the responsible officer of the respondent and the appellant lodged an application in the federal AAT to review the delegate's decision. After the application had been made to the AAT but before the hearing, the Act was changed so that weekly payments were no longer redeemable. It was held by the High Court that the AAT was correct in applying the earlier legislation because the applicant had a right to have the decision of the delegate reconsidered and determined by the Tribunal. The relevant right was:

...not merely "a power to take advantage of an enactment". Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act [the equivalent of s84 of the Legislation Act] protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent".[7]

26. Mr Mossop distinguished Esber's case on the basis that the 'right' in the present case is not a statutory right. This argument went further by asserting that the Territory Plan cannot confer individual rights because it is simply a factual matter upon which the obligation under s 50 of the Planning Act operates. This proposition is supported by the statements of Professor Curtis in Byfield and Commissioner for Land and Planning[8] where the President found that the Territory Plan is not subordinate law under the predecessor to the Legislation Act, rather that its legal effect is analogous to 'No Parking' sign - a factual circumstance upon which a statutory provision (such as the Motor Traffic Act or in this case s 50 of the Planning Act) operates. Consequently, President Curtis continued, variations to the Territory Plan do not effect changes in the law.[9]

27. The juridical nature of the Territory Plan deserves further analysis, however, there are judicial statements that treat the Territory Plan as conferring 'rights' of the kind contemplated by s 84 of the Legislation Act. For example, in Nowicki v Martyn[10] Miles CJ described the provisions of the Territory Plan as operating 'like a form of delegated legislation'.[11] Similarly, Higgins CJ in obiter in Jewel Food Stores Pty Ltd v Minister for the Environment Land and Planning[12] discussed the application of the Esber principle to a development application as follows:

If the Minister approves an application, rights will be conferred upon the applicant as a result of that approval. Those rights may be subject to review but will constitute a "substantive right" nevertheless. That conclusion seems to me to follow from the authorities referred to above.[13]

28. Moreover, provisions such as s 84 of the Legislation Act protect a wide range of entitlements, not just strict 'rights'.[14] Consequently the Esber principle may extend to inchoate and contingent rights but not to 'potential rights'.[15]

29. Many of the cases where a court or tribunal has declined to find an accrued right involve refusals rather than approvals. For example, in the planning context, Robertson v City of Nunawading[16] and Ungar v City of Malvern[17] ('Ungar') both involved appeals against a refusal to grant development applications. In Ungar, the court found that the institution of the appeal gave the appellant:

...no more than a hope or expectation that his appeal would succeed and that he would be granted a permit. But, as the Appeals Tribunal had a discretion as to whether or not it would grant a permit, the question was open and unresolved. No right or privilege had been acquired by the appellant nor had any right or privilege accrued to him. The investigation by the Appeals Tribunal was not in respect of some right of the appellant but was to decide whether some right should or should not be given. Hence, as the appellant had no right or privilege when the law was changed to make it illegal to grant a permit for a commercial vehicle park ... , the Appeals Tribunal was bound to refuse to give such a permit to the appellant.[18]

30. The present case involves an approval by the respondent of the DA and it has been held in several cases that having the benefit of a planning permit is a right which attracts the Esber principle.[19] However, given the power of the Tribunal to stand in the shoes of the decision-maker and conduct a full de novo review, the question arises as to when such a right would accrue. In Simpson v Bass Coast SC[20] ('Simpson') Morris J held that a developer who had been given development approval subject to the appeal rights of objectors had an accrued right to have the development considered under an earlier planning instrument even though a supervening amendment of the instrument had rendered the development impermissible. His Honour found that the relevant right had accrued even though it was inchoate. The provisions of the Planning and Environment Act 1987 (Vic) are directly comparable to sections 177 and 178 of the Planning Act, in particular the provisions that confirm that final approval is contingent upon the effluxion of a certain number of days after notification to objectors and there being no appeals lodged in the Victorian Civil and Administrative Tribunal ('VCAT').[21]

31. However, Simpson is distinguishable from the present case as the appeal lodged with VCAT was found to be invalid because the appellant had not filed an original objection to the development. Hence, there were no objector appeals to impede the accrual of the right of the developer to the planning permit. Importantly, Morris J held that the right accrued to the developer in April 2006 when the time for an objector appeal in relation to the notice of decision expired. His Honour contrasted the administrative act of issuing a permit with the discretionary act of making a decision to grant a permit.[22] The grant of the permit is analogous to the point in time under sections 177 and 178 when the development approval takes effect.

32. Similarly, Deputy President Gibson found in Bass Coast SC v Christian Brethren Trust[23] that a developer had accrued a right when an objector's appeal to VCAT had been withdrawn. The Deputy President found that the Victorian equivalent to sections 177 and 178 operates to prevent a responsible authority taking action to implement its decision in certain circumstances if there are objectors. However, once the circumstances that prevent the taking of action to implement the decision no longer apply (by the withdrawal of the appeal) the original decision can be implemented.[24]

[i]f the application for review had not been withdrawn and the Tribunal was called upon to make its own decision about whether or not to grant a permit, the situation would be different. In that circumstance, the pivotal decision would be the decision by the Tribunal and it would be required to make a decision in accordance with the planning scheme as at the date of determination of the application for review in accordance with the principle established in Ungar v City of Malvern.

33. The applicants relied upon the latter point in submissions to the Tribunal in the present case. They argued that the Tribunal must make a decision about the DA in accordance with the Territory Plan as at the date of the determination of the application for review. Moreover, they submitted that the interpretation of accrued rights must be understood by reference to the law that has been amended or repealed.[25] In the applicants' view the need for the amendments made by V2008-10 was contemplated by the earlier version of the Territory Plan and extensive consultation surrounded the introduction of V2008-10.

34. In conclusion, I find that the developer may have had a 'right' that arose from the respondent's approval of its DA on 13 October 2008. However, the lodgement of the applications for review by the applicants in November 2008 prevented that 'right' accruing so as to invoke the operation of s 84 of the Legislation Act and the accrued rights principle in Esber.

35. Therefore, in accordance with the Shi and Ungar cases and s 69 of the ACAT Act, I find that the version of the Territory Plan to be applied to the application for review will be the version of the Territory Plan that incorporates Technical Amendment V2008-10.

36. In its current form, the development application no longer complies with the Territory Plan, and s 50 of the Planning Act compels the Tribunal to not

approve the doing of any act that is inconsistent with the Territory Plan. Therefore pursuant to s 68 of the ACAT Act and s 162 of the Planning Act, the Tribunal sets aside the decision of the respondent of 13 October 2008 and substitutes a decision that Development Application No 200812308 be refused.

[1] Territory Plan 2008, Definitions, Part B.

[2] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [25].

[3] Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589

[4] Costello and Secretary, Department of Transport [1979] AATA 184; (1979) 2 ALD 934 at 944 (emphasis added)

[5] Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

[7] Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440. [Footnotes omitted.]

[9] Byfield and Commissioner for Land and Planning [1998] ACTAAT 262 at p9.

[14] Chang v Laidley [2007] HCA 37; (2007) 234 CLR 1 at [41] per Kirby J.

[15] Chang v Laidley [2007] HCA 37; (2007) 234 CLR 1 at [114-117] per Hayne, Heydon and Crennan JJ.

[19] For example, Lakkis v City of Wyndham [2001] VCAT 863; Oppe v Shire of Lillydale [1980] VicRp 37; [1980] VR 387, at 392;and Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289, at 297, cited by Morris J in Simpson v Bass Coast SC [ 2007] VCAT 165 at [17].

[20] Simpson v Bass Coast SC [2007] VCAT 165.

[22] Simpson v Bass Coast SC [2007] VCAT 165 at [25].

Development Act 2007

Appeals Tribunal Act 1989

Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009

Civil and Administrative Tribunal Act 2008

Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009

Environment Act 1987

Roberts & Ors and ACT Planning & Land Authority and Anor (Administrative Review) [2009] ACAT 10 (18 May 2009)

At a glance

Court

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Catchwords

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Judgment (115 paragraphs)

Roberts & Ors and ACT Planning & Land Authority and Anor (Administrative Review) [2009] ACAT 10 (18 May 2009)

Legislation Cited (6)

Cases Cited (5)