Territory Planning Authority v Gungahlin Golf Investments Pty Ltd [2026] ACTSC 53

1. The Territory Planning Authority (the Authority) seeks leave to appeal from a decision of the ACT Civil and Administrative Tribunal (the Tribunal) concerning three development applications made under the Planning and Development Act 2007 (ACT). The right to appeal to this Court from a decision of the Tribunal in a planning matter arises under s 86(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). The requirement for leave is imposed by s 86(4) of that Act. The issue determined in this judgment is whether such leave, which is opposed by the respondent, should be granted.

2. Before turning to that issue, it is appropriate to note an issue that was not raised by the parties. At the time the development applications were lodged, the Planning and Development Act was in force. That Act has since been repealed and replaced by the Planning Act 2023 (ACT), which came into force on 27 November 2023 (I will refer to them as the repealed Act and the current Act respectively). The development applications are nonetheless still governed by the repealed Act by force of the transitional provisions in s 613 of the current Act. The circumstances that engage the application of that section are that the applications were made under the repealed Act and had not been finally decided before the commencement day for the current Act.

3. On the same day as the commencement of the current Act, an amendment was made (presumably deliberately) to s 86(2) of the ACAT Act (the provision that confers a right of appeal to this Court in planning matters) to replace the reference to decisions under the Planning and Development Act with a reference to decisions under the Planning Act. In other words, until 26 November 2023, the right of appeal was expressed to arise in respect of a decision under the repealed Act whereas, from 27 November 2023, the right of appeal was expressed to arise in respect of a decision under the current Act.

4. So far as I can find, the transitional provisions do not explicitly address the continued application of s 86(2) of the ACAT Act to appeals from decisions made under the repealed Act. This may reflect an assumption that, in any case where the repealed Act continues to apply, the parties have an accrued right to bring any appeal under s 86(2) of the ACAT Act that could have been brought before the commencement of the current Act: cf s 84(1)(c) of the Legislation Act 2001 (ACT). If either party wishes to be heard on this point, an appropriate application may be made. Right of appeal

5. Assuming there remains a right of appeal against a decision of the Tribunal made under the repealed Act, the right of appeal conferred by s 86(2) of the ACAT Act (as it stood before the commencement day of the current Act) is confined to an appeal on “a question of law”. As already noted, such an appeal faces a leave requirement under s 86(4) of the Act.

6. The application for leave to appeal in the present case is opposed by the respondent on the basis that the grounds specified in the draft notice of appeal do not raise questions of law but rather questions of fact. The respondent submitted that the proposed appeals are accordingly pointless and that leave ought not to be granted.

The test for leave to appeal

7. The respondent referred to the test for leave adopted by the Court of Appeal in Eastman v Commissioner for Social Housing [2011] ACTCA 12; 252 FLR 278 at [58], where the Court said: The plain intention of the legislature is to provide a filter for appeals from the tribunal. What is tolerably clear from the plain words of the section is that it is insufficient to point to a question of law. Something more is required. We agree with the primary judge that it is necessary for an applicant to demonstrate that he or she has at least an arguable case, that the tribunal has erred in its resolution of a question of law and that the result of the error would have been more favourable to him or her. Otherwise, it would be futile to grant leave.

8. While those remarks were framed in the language of a test that must be applied in determining any application for leave under s 86(2) of the ACAT Act, they cannot be read in that way, for two reasons. First, a test formulated in those terms puts a judicial gloss on the language of the statute. It may be accepted that an applicant must point to a question of law as that is the subject matter of the appeal. Furthermore, it may be accepted, in the face of a statutory requirement for leave, that an applicant must demonstrate an arguable case of error in the resolution of the question of law specified. Otherwise, as noted in Eastman, the grant of leave would be futile and would be a waste of the Court’s time.

9. However, the suggested requirement that the applicant must demonstrate the possibility of a more favourable decision is in a different category. While it might be a powerful consideration in many cases, there is no foundation in the language of the statute for imposing a requirement in those terms as a condition of obtaining leave.

10. Secondly, it is clear from a reading of the full decision in Eastman that the adoption of a requirement to demonstrate “the possibility of a more favourable decision” was very much informed by the circumstances of that case. In the present case, it makes no sense to speak of the possibility of a decision that is “more favourable” to the Authority. A statutory authority is governed by its establishing legislation and any relevant rule, principle or policy. It is otherwise properly regarded as being disinterested in the outcome of a case. The Authority’s interest in the appeal is not to obtain a decision that is “favourable” to it but to obtain a ruling as to the correct construction of the legislation it administers.

11. One of the matters relied upon by the Authority as to why leave should be granted in the present case is that there is “significant public interest in the DAs as they involve the significant development of the site, with meaningful impacts on the surrounding areas”. In response to that submission, the respondent noted that members of the public had an opportunity to make representations concerning the development applications and that those representations would remain relevant to the authority’s substantive determination of the development applications (because they are mandatory considerations under s 120(d) of the repealed Act). However, the public interest extends not only to having an opportunity to make representations but to having the development application determined according to law.

12. A separate point made by the respondent is that the legislation in question has been repealed and there is no provision in the current Act corresponding to s 114(2)(b) of the repealed Act. The repealed Act provided for three different “assessment tracks” for the assessment of development applications, according to the kind of application made. Section 114(2)(b) provided that, if a development application was made in the wrong assessment track, it had to be refused (“the authority must refuse the application”). The Authority places some reliance on that provision in its application for leave, arguing that, if ACAT’s decision is allowed to stand, the Authority will have to proceed to assess three development applications which, according to its interpretation of its governing legislation, it has a statutory obligation to refuse.

13. The respondent’s point is that the appeal has no broader utility than to determine the dispute between the parties because the binary approach under s 114 is no longer the law. The Authority submits that ACAT’s decision nonetheless has “potential relevance to the approach taken to similar mechanisms in the current Planning Act 2023”. It is not possible within the rubric of a leave application to assess the merits of those competing submissions. I have regarded that point as neutral on the question of leave.

14. The critical question is whether the Authority has identified a question of law and an arguable case that ACAT erred in its determination of that question. The Tribunal’s decision

15. The central question before ACAT was the proper characterisation of the development applications. The applications were stated to be for motel/commercial accommodation and were made in the assessment track for such development. The Authority (known at the time of the decision as the ACT Planning and Land Authority) did not accept that characterisation, considering that the “best” characterisation was residential use development, which was a prohibited development. The Authority determined on that basis that it was required under s 114(2)(b) to refuse the application.

16. The Tribunal set aside those decisions, finding that the development applications were not for residential use development but for commercial accommodation as specified in the applications.

Questions of law

17. The questions of law specified in the draft notice of appeal are as follows: 1. Did the Tribunal err in construing the Prohibited Development Table in PRZ2 – Restricted Access Recreation Zone of the Territory Plan as requiring a determination of the proposed end-use intentions of the developer, as opposed to a determination based on an assessment of the development in its entirety as it is designed to be constructed? 2. Did the Tribunal err in its application of the Prohibited Development Table by failing to have regard to relevant matters and/or having regard to irrelevant matters and/or failing to give proper weight to those matters (required by the Prohibited Development Table, properly construed)? 3. Did the Tribunal misconstrue its jurisdiction in deferring a determination of whether the Prohibited Development Table applied as a matter to be determined in the course of future regulatory enforcement, the imposition by the TPA of conditions on approval, or otherwise in the course of the assessment of the DAs? 4. Did the Tribunal have jurisdiction to order that the DAs were to be assessed by the Appellant (in the merit track under the PDA) on the basis that they were not for a prohibited development? 5. In the alternative to (1) to (4) above, and contrary to the Appellant’s understanding of the Reasons, if the Tribunal’s approach to those matters cannot be adequately discerned from the Reasons, did the Tribunal fail to provide procedural fairness to the Appellant by failing to provide adequate reasons for the Orders?

18. I will return to consider the formulation of those questions, particularly those introduced by the words “did the Tribunal err in” the ways specified. As the argument was developed in oral submissions, the issues were refined to two substantive points which can properly be distilled as questions of law for the purpose of an appeal from the Tribunal.

19. The first substantive point concerns the test for determining the characterisation of a development application for the purpose of determining the assessment track in which it should be made. In short, the Authority contends that the test is objective and is to be applied having regard to the whole of the material before the Authority or the Tribunal. The respondent contends that the Tribunal was right instead to determine the characterisation of the development applications by reference to the intention of the developer as stated in the “primary documents”.

20. The second substantive point developed in oral submissions is the Authority’s contention that the question whether a development application is properly characterised as being for commercial accommodation or for residential use is a jurisdictional fact. There is authority that it is: see ACT Planning and Land Authority v 50 Emu Drive Pty Ltd [2019] ACTSC 276 (McWilliam AsJ, as her Honour then was) at [41] and the authorities there cited. Conversely, the respondent contends that the Tribunal’s finding that each development application proposed commercial accommodation in the form of a motel was the determination of a factual issue and is not amenable to appeal to this Court as it does not raise any question of law.

21. As leave is to be granted, it is appropriate to be circumspect in discussing those points. It is enough to say that, after hearing the submissions of the parties, I was persuaded that those two points raise questions of law, namely, the test for determining the characterisation of a development application (is it subjective or objective) and whether that characterisation is a jurisdictional fact. If it is, and the Tribunal got it wrong, it lacked jurisdiction to set aside the decisions of the Authority. Furthermore, I was persuaded that the applicant’s contentions concerning those grounds are reasonably arguable.

Formulation of the questions

22. Although the prescribed form for a notice of appeal (Form 5.4) does not expressly require it, an applicant for leave to appeal under s 86(4) of the ACAT Act should specify the questions of law sought to be raised in the draft notice of appeal. That requirement arises because the question of law is the appeal. As stated by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; 82 ALR 175 at 178: “[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself”.

23. While a ground of appeal might properly be framed in terms alleging that the decision-maker erred in some respect, a question of law must be framed in language that more precisely identifies the legal issue: ASIC v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; 133 FCR 290 at [47]-[48] (Branson J); [107] (Jacobson and Bennett JJ). It is not enough to contend that the questions of law can be discerned or distilled from the grounds of appeal: ASIC v Saxby Bridge at [108] citing Australian Telecommunications Corporation v Lambroglou [1990] FCA 689; 12 AAR 515 (Ryan J); cited with approval in Osland v Secretary to the Department of Justice [2010] HCA 24; 241 CLR 320 at [21]; and see Mack Fleet Pty Ltd v Transport for New South Wales [2020] NSWCA 149 at [22]-[30] (Basten JA).

24. An example of a question of law might be, what is the proper construction of a section of a statute, or what is the correct test for determining an element of a decision.

25. After reserving my decision on the question of leave in the present case, I formed the view that, while the points developed in oral submissions identified potential questions of law that might be distilled from the draft notice of appeal, the questions of law specified in the draft notice of appeal did not meet the requirements identified in the authorities referred to above. I took the view that it would not be appropriate for the Court to undertake the task of distilling the questions addressed in the submissions. I also considered that, as the questions of law specified by an applicant form the subject matter of an appeal under s 86(4), it would not be appropriate to grant leave to appeal by reference to a draft notice of appeal that did not properly formulate questions of law. The appropriate approach was to afford the Authority an opportunity to reformulate its proposed questions of law before ruling on the application.

26. In accordance with directions made by me at that time, the Authority has since circulated a draft amended notice of appeal which specifies the following questions of law: 1. Is the characterisation of a proposed development as a prohibited development or not under PRZ2 – Restricted Access Recreation Zone of the Territory Plan a jurisdictional fact? 2. If the answer to Question 1 above is ‘yes’, is that jurisdictional fact a matter for the Court to determine for itself on appeal? 3. If the answer to Question 2 above is ‘yes’, did the Tribunal have jurisdiction to make the Orders? 4. What is the proper test to be applied for determining the characterisation of a proposed development under PRZ2 – Restricted Access Recreation Zone, and did the Tribunal apply that test? 5. In the alternative to Questions (1) to (4) above, did the Tribunal fail to provide adequate reasons for the Orders?

27. The respondent sought to be heard as to the reformulated grounds. The respondent did not take issue with the form of the questions but made a number of points as to why leave should not be granted in respect of those questions.

28. First, Mr Walker reiterated his previous submission that leave should not be granted because the statute under which the questions of law arise has been repealed. As already noted, however, I consider that there is a public interest in having this significant development application determined according to law, even if the applicable law is of limited ongoing application. Mr Walker also acknowledged that the Authority will seek leave to rely on additional evidence which, if admitted, could change the factual matrix of the decision. He accepted that this is a factor that might militate in favour of granting leave.

29. As to questions 1 to 4, Mr Walker accepted that it would be open to the Court to grant leave for a question of law concerning a jurisdictional fact. However, he submitted that question 4 is largely covered by grounds 1 to 3. I do not accept that submission. As submitted by the applicant, question 4 raises a discrete legal question which stands alone and is of sufficient importance to warrant a grant of leave, because it concerns the correct legal approach to the determination of a significant development application.

30. Separately, Mr Walker submitted that leave should not be granted in respect of question 5 concerning the adequacy of the Tribunal’s reasons. He submitted that it is not inappropriate for the Court to grant leave on some questions and not others, citing the decision of this Court in CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty LTD and ACT Civil and Administrative Tribunal [2013] ACTSC 96; 277 FLR 26 at [143] (Penfold J). That has always been my understanding, and I respectfully agree with her Honour’s conclusion on that issue. To repeat, it is the question of law that is the subject matter of the appeal. There is no reason the Court should not grant leave in respect of one proposed subject matter but not another. I respectfully do not agree with her Honour’s suggestion at [142] that, if necessary, the Court should formulate the question of law. In adversarial proceedings, that is more properly a task for the appellant. As the question of law is both “a qualifying condition to ground the appeal” and “the subject matter of the appeal” (TNT Skypack International at [11]), the proper formulation of a question of law is critical and should for preference be addressed at an early point in the appeal proceedings.

31. Returning to question 5, Mr Walker submitted that the remedy for failure to provide adequate reasons is to take steps to obtain adequate reasons. He further submitted that there is a fundamental difficulty with question 5 in that the reasons were published after the publication of the impugned decision. He submitted that there is a difficulty in contending that a decision is rendered invalid by a subsequent step.

32. Mr Walker noted that courts have nonetheless held that is possible, if that is what the statute requires, citing the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212. However, he submitted that the issue as it arises here has been decided adversely to the argument put by the Authority. Mr Walker was referring to the decision of Crowe AJ in Scentre Management Ltd v ACT Planning and Land Authority [2021] ACTSC 171, in which his Honour held at [181] that the giving of adequate reasons is not an essential condition of the exercise of the power to approve or reject a development application. Mr Walker submitted that there is no occasion to re-open that decision.

33. The applicant submitted that the question of the adequacy of the reasons arises because the reasons are ambiguous and it is not possible to tell what test the Tribunal applied. If that is a question of law within the meaning of s 86 of the ACAT Act, it is not one in request of which leave should be granted in the present case. As submitted by Mr Walker, any failure to give adequate reasons is not the error with which this Court should be concerned. The filter of the leave requirement indicates that the Court should ordinarily confine an appeal to pure questions of law. In reaching the conclusion in this case that leave should not be granted in respect of question 5, I have also had regard to Mr Walker’s submission, which I accept, that a ground based on alleged inadequacy of reasons can be an indirect and time-consuming way to reach the same result as may be achieved by confining attention to the direct questions of law raised.

34. It remains to address two issues as to costs. First, it was common ground that, having opposed the grant of leave, the respondent need not also apply under r 5172 of the Court Procedures Rules 2006 (ACT) to have the appeal struck out as incompetent in order to obtain the benefit of the r 5173 as to costs.

35. Secondly, Mr Walker submitted that the respondent should have its costs of the further round of argument following the Court’s invitation to the applicant to reformulate the questions of law. The applicant opposed any such order. The applicant noted that the respondent opposed leave in respect of all of the grounds specified in the draft notice of appeal on the basis of merit. It has been largely unsuccessful in that respect. It may be accepted that the respondent did also raise an issue as to the form of the questions. In my assessment, however, each party has enjoyed a measure of success and endured an element of failure. The appropriate order as to costs is that the costs of the application for leave be each party’s costs in the appeal.

Orders

36. For those reasons I make the following orders: (1) Grant leave to the applicant to appeal on questions 1 to 4 in the draft amended notice of appeal. (2) Direct that the costs of the application for leave be each party’s costs in the appeal.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: