THOMSON v ACT PLANNING AND LAND AUTHORITY

ACT Civil and Administrative Tribunal|2009-10-02

The applicant was entitled to seek review of the decision under s 276 of the Land (Planning and Environment) Act 1991 (now repealed) having been an objector to approval of the DA. While some other neighbours made representations about the proposal, none of them sought to be joined as parties to the appeal. The only issue raised by Ms Thomson was her concern about the potential for overlooking of her private open space and the rear of her residence from the rear balconies of the upper floor units.

The review was originally applied for under Part 4 of the Administrative Appeals Tribunal Act 1989 ('the AAT Act') (now repealed) but by virtue of s 6 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 ('the Regulations') and because a hearing of the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

Mr Jaime Farrelly, who was authorized by each of the lessees of the three blocks proposed to be amalgamated to lodge the DA on their behalf, and Mr Minh Phan, the lessee of Block 6 Section 45, were also joined as parties.

The matter proceeded to hearing on 30 April 2009. The Tribunal had before it the documents (the "T Docs") which were prepared pursuant to s 37 of the AAT Act 1989. There is no equivalent provision in the ACAT Act but the T Docs can be regarded as meeting the requirements of s 22B of the ACAT Act. It also had before it Statements of Facts and Contentions submitted by the applicant and the ACT Government Solicitor on behalf of the respondent.

The applicant was self represented. The respondent was represented by Mr Mossop of counsel. The parties joined were also self represented.

No witnesses were called to give evidence nor was it considered necessary to take a view of the site. Submissions as to the relevant law and the issues raised by the application were made by Mr Mossop, Mr Farrelly, Mr Phan and Ms Thomson.

The decision to approve the DA with conditions was made pursuant to s 162 of the Planning and Development Act 2007 (ACT) (**'**the Planning Act').

The development is subject to the provisions of the Planning Act and in particular, to 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.

The Territory Plan 2008 ('the 2008 Territory Plan') has been prepared pursuant to Part 5.1 of the Planning Act and applies to DAs lodged after 31 March 2008. This is such a DA. Neither the respondent, nor ACAT in undertaking this review, may approve the development if it is inconsistent with the 2008 Territory Plan.

The 2008 Territory Plan includes, at Section 2, a statement of Strategic Directions which makes clear (inter alia) the intent of securing some intensification of development consistent with maintaining residential amenity. Section 3 of the 2008 Territory Plan deals with Residential Zones and begins (section 3.1) with a series of general statements of objectives for the various zones. The subject land lies in the Residential Zone known as RZ4 - Medium Density Development in Inner North Canberra and the Gunghalin District, but it is also subject to the provisions applying to the RZ2 Suburban Core Zone.

The objectives for the RZ2 Suburban Core Zone include

b) Ensure that development addresses the street and the existing neighbourhood characteristics in scale, form and site development

while those for the RZ4 Inner North Canberra Zone include:

b) Ensure development respects and contributes to the neighbourhood and the landscape character of residential areas whilst carefully managing change in suitable locations.

The objectives are spelled out in more detail in section 3.3, Residential Zones - Multi-Unit Housing Development Code (**'**the Code') where a series of elements (which describe the various issues for consideration) are identified and for each element a series of controls is laid down. The Intent (or purpose) of the controls is identified, together with specific controls in the form of Rules and Criteria.

Code's controls are expressed as either rules, which are generally definitive and quantitative, or as qualitative criteria**.**

Proposals in the merit track and impact track have the option to comply with the rules or criteria, unless the rule is mandatory. Where it is proposed to meet the criteria, the onus is on the applicant to demonstrate, by supporting plans and documentation, that the proposed development satisfies the criteria and therefore the intent of the element_._

Pursuant to s 120 of the Planning Act, when the respondent receives a development proposal in the merit track it must consider the following in deciding the DA:

(a) the objectives for the zone in which the development is

(b) the suitability of the land where the development is proposed to

(d) if an entity gave advice on the application in accordance with

section 149 (Requirement to give advice in relation to development applications) - the entity's advice;

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

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

The respondent contended that the Tribunal's jurisdiction to review the DA was limited by s 121(2) of the Planning Act. This provides as follows:

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

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

The 'right of review' is determined by Chapter 13 of the Planning Act. Chapter 13 is entitled 'Review of Decisions'. In that chapter, s 408 states that an eligible entity for a reviewable decision may apply to the ACAT for review of the decision. 'Eligible entity' for a reviewable decision is defined in s 407 so that 'each entity mentioned in schedule 1 column 4 in relation to a reviewable decision is an eligible entity for the decision'.

'Reviewable decision' is also defined in s 407 of the Planning Act as follows:

(a) means a decision mentioned in schedule 1, column 2.

In Schedule 1 of the Planning Act, column 1 item 4 refers to the following reviewable decision:

decision under s 162 to approve a development application in the merit track, whether subject to a condition or otherwise, if -

(a) the application was required to be notified under section 153 and section 155, whether or not it was also required to be notified under section 154; and

Column 4 refers to the 'eligible entity': that is the entity who may apply to ACAT for review of a reviewable decision, as defined in s 407. The applicant falls within the status of an 'eligible entity' under Schedule 1 as column 4 of item 4 refers to an entity as eligible if:

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

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

The applicant made a representation in relation to the DA on 27 July 2008 and clearly falls within the definition of 'eligible entity' under item 4 of Schedule 1 of the Planning Act because the approval of the development application may cause her to suffer material detriment through a diminution of the privacy of her residence.

The respondent argued that as a consequence of s 121(2) of the Planning Act the scope of review that is permissible by ACAT is limited to the extent to which the development proposal which accompanied the DA did not comply with a relevant rule. Moreover, matters in relation to which the original proposal did comply with a relevant rule are not subject to review by the Tribunal.

It is clear that ACAT may only exercise such jurisdiction as is conferred upon it by an authorising law.[1] Further, the right under an authorising law to make an application to ACAT is subject to any condition stated in the authorising law.[2] As stated above, the introduction to the Code controls are expressed as rules, which are generally definitive and quantitative and criteria which are qualitative.

It is noteworthy that the respondent has additional obligations under s 120 when considering development applications in the merit track. In particular the respondent must consider a list of matters set out in s 120 as set out above. The following considerations are of particular relevance in this case:

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

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

It is to be noted that 'environment' is defined in the Dictionary of the Planning Act as inter alia:

(e) ecosystems and parts of ecosystems, including people and communities.

The respondent contended that the Tribunal's power to review the application was limited to any failures to comply with the relevant rules under the Code and not to the consideration of matters listed in s 120, except to the extent that the general provisions of s 120 do not address the same issues as the specific rules.

The Application of the Human Rights Act 2004 (ACT) - Background

As stated above, the matter proceeded to a hearing on 30 April 2009. During its deliberations the Tribunal concluded that the arguments made by the respondent regarding the operation of s 121(2) of the Planning Act raised questions about the operation of the Human Rights Act 2004 (ACT) ('the Human Rights Act'). Pursuant to s 40B of the Human Rights Act it is unlawful for the Tribunal in making a decision to fail to give proper consideration to a relevant human right.

The Tribunal wrote to the parties on 22 May 2009 stating that it considered that s 12 (privacy and reputation) and s 21 (fair trial) of the Human Rights Act may be relevant to the arguments put on the hearing of the application for review. These issues were not raised in submissions during the hearing and in accordance with the Tribunal's obligation to accord procedural fairness under s 7 of the ACAT Act the Tribunal made orders that the parties provide written submissions on the issue by Friday 29 May 2009 with a view to holding a further hearing on the issue after that date.

A further hearing was held on 5 June 2009 and prior to that hearing the respondent and party joined provided written submission on the application of the Human Rights Act to the issue by 29 May 2009.

The Tribunal advised the Human Rights and Discrimination Commissioner ('the Commissioner') about the hearing on 5 June 2009 and a representative of the Commissioner attended the hearing wherein leave was granted to the Commissioner to participate in the proceeding as amicus curiae. An order was made whereby the Commissioner was permitted to make a written submission on the application of the Human Rights Act to the proceedings should it choose to do so, however the Commissioner was obliged to advise the Tribunal by close of business on 5 June 2009 to advise whether it would be making a submission. The Commissioner did choose to make a submission which was filed and served upon all parties by Friday 12 June 2009. The Commissioner did not seek formal leave to intervene under s 36 of the Human Rights Act, rather the Commissioner provided submissions on the issue of law to assist the Tribunal as the applicant was not legally represented. The parties to the proceedings were permitted to make submissions in reply to that of the Commissioner by 19 June 2009.

An order was made on 26 June 2009 which confirmed the decision under review with reasons to be delivered in due course.

The Tribunal is grateful for the assistance provided by the submissions made by the applicant, parties joined, respondent and the Commissioner as amicus curiae. All submissions raised important matters regarding the effect of the Human Rights Act upon ACAT's consideration of its jurisdiction under the relevant provisions of the Planning Act.

The Application of the Human Rights Act - Consideration of the Issues

ACAT is a public authority under s 40 of the Human Rights Act. Pursuant to amendments to the Human Rights Act effective 1 January 2009 public authorities must act consistently with human rights. Section 40B states:

Public authorities must act consistently with human rights

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and -

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

ACAT is a public authority because it is a 'territory authority' within s 40(1)(b) of the Human Rights Act and is defined as a 'territory authority' in the Dictionary of the Legislation Act 2001 (ACT) ('the Legislation Act'). Although ACAT falls within the definition of 'court' in the Human Rights Act, in this case it is acting in an administrative capacity by 'standing in the shoes' of the respondent and therefore falls within the proviso in s 40(2)(b) of the Human Rights Act. ACAT acts in an administrative capacity by exercising the scope the respondent's functions upon an application for review being filed with ACAT. In addition to the function that ACAT exercises when standing in the shoes of the respondent, it also acts as a public authority in its own right when acting in an administrative capacity[3].

In order to fulfil its responsibility under s 40B of the Human Rights Act, ACAT must consider the relevant legislation pursuant to s 30 of the Human Rights Act. Section 30 states as follows:

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

This raises the question as to the proper approach to interpretation. In this regard the Tribunal adopts the interpretation preferred by the ACT Court of Appeal in R v Fearnside[4] ('Fearnside'), as amplified by Refshauge J in Hakimi v Legal Aid Commission (ACT); Australian Capital Territory (Intervener)[5] ('Hakimi').

Besanko J in Fearnside held that in a case such as the present there is a three stage process that must be adopted in discerning the human rights issues.

First, it is necessary to consider whether [the legislation] "enlivens" a human right. Secondly, if, but only if, the answer to the first question is yes, it is necessary to consider whether [the legislation] contains a limitation which is reasonable within s 28. Thirdly, if, but only if, the answer to the first question is yes and the answer to the second question is no, it is necessary to consider and apply the interpretative principle in s 30.[6]

In applying this test to the present case, the Commissioner and the parties submitted that the Tribunal should have regard to persuasive court and tribunal decisions in Victoria and the UK which have a comparable human rights frameworks pursuant to Charter of Human Rights and Responsibilities Act 2006 (Vic) and Human Rights Act 1998 (UK) respectively. The UK cases are informed by decisions of the European Court of Human Rights (also referred to as 'the Strasbourg Court') regarding the Convention for the Protection of Human Rights and Fundamental Freedoms[7] (the European Convention). The Tribunal has taken into account relevant cases under the European Convention in accordance with the principle of construction elucidated in s 31 of the Human Rights Act 2004 (ACT) that the judgments of foreign and international courts and tribunals which are relevant to the interpretation of the relevant human right may be considered.[8]

In adapting the UK and European case law to the Fearnside test, it is important to note that when the Strasbourg Court is deciding whether a human right is 'enlivened', it may ask two distinct questions:

whether the relevant article is applicable or admissible to or is engaged by the case. If so, the court will then determine

whether the relevant article is breached or violated in the case.

The Fearnside test proceeds to Step 2 if and only if Step 1 is satisfied i.e. the legislation or decision enlivens the human right. Step 2 of the Fearnside test asks whether the limitation is reasonable within s 28 Human Rights Act 2004 (ACT). In the UK and European jurisprudence this is referred to as 'proportionality'. However, the proportionality analysis which is invited by Step 2 of the Fearnside test may or may not be dealt with by UK and European courts when determining Step ii) above.

The primary question to be considered below is whether Step 1 of the Fearnside test is satisfied have the relevant human rights been engaged or enlivened in this case? For reasons elaborated below, the Tribunal has decided that there is at least a prima facie argument that one of the relevant human rights is so engaged. Accordingly, the Tribunal will provide a brief proportionality analysis required by Step 2 of Fearnside to conclude that pursuant to s 28 of the Human Rights Act 2004 (ACT) the relevant human right has been 'subjected to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society'.

What is the ordinary meaning of section 121(2) of the Planning Act?

The Planning Act and the 2008 Territory Plan both came into effect on 31 March 2008 and established a three track planning approval scheme with different considerations for approval and review rights for different tracks - code, merit and impact. Pursuant to s 119 of the Planning Act the respondent is not permitted to approve a development proposal in the merit track unless it is consistent with the applicable code in the 2008 Territory Plan. As stated above, the relevant code is the Multi-Unit Housing Development Code. A central part of the amendments to the Planning Act was a 'simplified development assessment through a track system that matches the level of assessment and process to the impact of the proposed development.'[9] It is necessary that a DA in the merit track be consistent with the relevant code but the respondent must also consider the matters set out in s 120, as stated above.

Section 121(2) was considered by the Tribunal in Mason & ACT Planning & Land Authority & Ors[10] and it reached the following conclusions.

i) The Tribunal does not have the same responsibility as the original decision maker in relation to approval or otherwise of the DA. While it is bound by the prohibitions set out in s 119 of the Planning Act, it is not able to have regard to the matters set out in s 120, including the Suburban Core Zone general objectives set out in Section 3.1 of the Plan. Section 121(2) of the Planning Act makes it clear that any review is to be limited to the extent that the proposed development complies with the relevant Rules and Criteria. If a Rule is complied with, then the DA cannot be disapproved by the Tribunal on that aspect of the proposal, even if it considers that the associated Criteria are not fully satisfied or that the Zone's general objectives have not been achieved.

ii) Nevertheless, the Tribunal is entitled to satisfy itself from the evidence given whether or not a Rule has been complied with; it is not obliged to accept the decision of the original decision maker.

iii) If it is established that a Rule has not been satisfied, or if there is no Rule, then the Tribunal is free to consider the extent to which the proposal satisfies the Criteria and, if it concludes that any of the Criteria are not satisfied, then it may set aside an approval of the proposal or impose conditions that will overcome the deficiencies identified.

iv) The Tribunal considers that the Rules of the Code are a set of standards which apply broadly to all residential areas of Canberra in part, but with some specific provisions for different zones such as RZ1, RZ2, RZ3 etc. The Rules apply without regard to the characteristics of a specific site or context. If a Rule is met then there is a presumption that that aspect of the proposal has achieved a desired outcome and meets the intent of the element.

v) Criteria are framed in a quite different way and enable proposals to be assessed having regard to the specific site, its topography and context, including the proximity and characteristics of adjoining buildings and spaces. An assessment against Criteria may potentially be helped by reference to the standard of the related Rule but clearly the Plan does not require this. The assessment that is required under the Criteria is one which more directly considers the impact and design quality of a proposal.

Section 121(2) of the Planning Act was presented as a government amendment to the Planning & Development Bill 2006 by Mr Barr who made the following comments in the Legislative Assembly:

... if a design feature fully complies with the relevant rule, then it cannot be reassessed on appeal. The substance of amendment 30 was in Schedule 1 of the presentation version of the Bill. This amendment to Clause 120 of the Bill [now s 121 of the Planning Act] in conjunction with amendment 139 brings the provision into the main body of the Bill to give it more prominence.[11]

The Tribunal is permitted to consider the explanatory statements as well as reports that were presented to the Legislative Assembly prior to the passage of the Planning Act.[12] The Planning and Development Bill was accompanied by the Attorney General's compatibility statement under s 37 Human Rights Act.

Does section 121(2) Planning Act 'enliven' a human right?

In deciding this question it is necessary to determine whether the relevant provision is apparently inconsistent with or imposes a limitation on any of the

rights protected under Part 3 of the Human Rights Act.[13]

In its letter to the parties dated 22 May 2009, the Tribunal referred to two rights in sections 12 and 21 Human Rights Act which might be relevant to the arguments put on the hearing of the application for review. These provisions are extracted as follows.

(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily.

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

On the hearing of the human rights issues it became clear that the right to privacy and reputation in s 12 of the Human Rights Act was not engaged by this proceeding. Section 12 only prohibits unlawful or arbitrary interference with privacy, family and home, not any interference per se. As submitted by the respondent, there is nothing unlawful about the use of a building which has the potential to overlook another and unless constrained by law, the owners of a property have the right to develop and use the property as they think fit.[14]

In relation to arbitrariness, it cannot be said that a decision which attracts the application of s 121(2) of the Planning Act would be arbitrary. The issues of privacy and amenity of adjoining properties are explicitly considered and addressed in the relevant codes of the 2008 Territory Plan which invokes processes requiring public notification and standards approved by the legislature.

Therefore, even if it could be established that the applicant's privacy, family or home has been interfered with, such interference could not be unlawful or arbitrary.

The right to fair trial in s 21 of the Human Rights Act confers a procedural human right that entitles its holder to a particular process, i.e. a decision by a competent independent and impartial court or tribunal after a fair and public hearing in a civil context where substantive rights are established, i.e. rights and obligations recognised by law. In deciding whether the right to fair trial is enlivened or engaged by this case it must be determined whether the applicant has "rights and obligations recognised by law".

The respondent submitted that in the absence of some infringement of a recognised proprietary right such as would give the applicant (as a third party objector) a cause of action, there are no 'rights' or 'obligations' being determined by the development application. This argument states that the right of the third party objector is entirely delimited by the statute. The only relevant right of the applicant is the right to make an application to the Tribunal granted by the Planning Act s 408 and Schedule 1, column 1, item 4. The scope of the right is limited by the operation of s 121(2). The right granted by s 408 is only as broad as the other provisions of the Planning Act permit it to be, since the Planning Act must be read as intending to give effect to harmonious goals,[15] in this case the giving of a right to merits review in a limited class of cases and limiting the scope of that review where there is compliance with the rules in the 2008 Territory Plan.

This argument focuses upon the requirement that ACAT's powers to conduct a merits review under the ACAT Act must be conferred by authorising laws. In this case the authorising law is the Planning Act. Therefore the conventional wisdom of administrative law dictates that the Planning Act confers and delimits the statutory rights of the applicant. In this case the statutory rights of the applicant only extend to partial review in circumstances where there is either no rule or where the rule has not been complied with.

However this construction might defeat human rights scrutiny of statutes that delimit procedural options or safeguards, regardless of how tyrannical, because the statute defines the 'right' so as to exclude the procedural options or safeguards that might attract the operation of the human right to a fair trial. As discussed below, such an approach to interpretation was not followed by Refshauge J in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority[16] ('Capital') nor by Connolly J in West v NSW ('West')[17].

The Tribunal considers that the applicant can establish at least to a threshold standard that the right to fair trial is enlivened or is engaged or is admissible in this case.[18] This conclusion is based on three possible interpretations of a substantive right that may be asserted to engage the human right and thereafter require the application of the proportionality test. In coming to this conclusion, the Tribunal notes the need to adopt an approach to statutory interpretation which fosters compatibility with human rights under s 30 of the Human Rights Act rather than merely restating the traditional rules of statutory interpretation.[19]

The three bases of the applicant's 'rights and obligations recognised by law' are as follows:
1. An express recognition by Refshauge J in Capital that the right of a third party objector under the predecessor to the Planning Act engaged s 21 Human Rights Act.
2. The recognition by the UK and European courts that the right of a third party objector may engage Article 6(1) of the European Convention which also confers a right to fair trial 'in the determination of ... civil rights and obligations'
3. An incipient or inchoate right or novel claim analogous to the right referred to by the late Connolly J in West.

Article 6(1) of the European Convention implies a right of access to court,[20] so a claim need not be well-founded under domestic law, provided that the claim is sufficiently tenable.[21] It is well established that disputes determining the applicability or capacity of the applicant to enjoy the rights and freedoms in the European Convention itself concern "civil rights and obligations" within Article 6(1).[22] Moreover, procedural bars which prevent or limit the possibility of bringing potential claims, together with substantive content, may be relevant to the operation of Article 6(1).[23] We leave to one side the question whether access to court includes access to tribunals.

An express recognition that section 21 of the Human Rights Act applies to the right of a third party objector in the ACT

Refshauge J sitting as the ACT Court of Appeal in Capital Property Projects (ACT) Pty Ltd v ACTPLA applied s 21 of the Human Rights Act when considering an application by a third party objector to a planning decision for an extension of time under r 5312 Court Procedures Rules 2006 (ACT) to appeal a decision of a single judge of the Supreme Court. The applicant had objected to the original decision by the respondent to approve a development proposal. The rights to review by ACAT's predecessor, the AAT, were precluded by regulation. It was found on the first appeal to the Supreme Court that the regulation was invalid.[24] An amending act was passed which had the effect of validating the regulation and the AAT found in a subsequent application that it lacked jurisdiction.[25] The objector filed an originating application in the ACT Supreme Court seeking declarations, prerogative relief and statutory relief under the Administrative Decisions Judicial Review Act 1989 (ACT) ('ADJR'). An interlocutory decision was made by Gray J in the judicial review proceedings and the applicant sought an extension of time in the ACT Court of Appeal to appeal Gray J's decision.[26]

In determining the principles to be applied to a grant of leave to appeal against Gray J's interlocutory decision, Refshauge J opined that the principles should be applied more liberally in the light of s 21 of the Human Rights Act 'since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial'.[27]

His Honour further stated that consideration needed to be given to s 21 because s 21 operates upon statutory material and appeals are 'creatures of statute and their limit and extent are to be found in the statute'.[28] Importantly, Refshauge J considered that the provision for leave to appeal needed to be construed in such a way that an interpretation which is consistent with human rights was to be preferred, pursuant to s 30 of the Human Rights Act.[29] Moreover, Refshauge J considered that existing case law required the court to apply a test of 'substantial injustice' in determining the request for leave to appeal. However, an interpretation which is consistent with the right to a fair trial would:

require that the reference to "substantial injustice" be modified. Something less than a substantial injustice may well result in an unfair trial.[30]

This decision is authority for the proposition that the third party objector has a right which engages the right to fair trial. Although the right in Capital was being exercised in a different context to the present case i.e. in an application for judicial review rather than in a determination of the Tribunal's jurisdiction to provide merits review, the right itself should not change according to the context in which it is asserted.

Recognition of the application of the right to fair trial to a third party objector in United Kingdom and Europe

The submission made by the Commissioner indicated that the right to fair trial in Article 6(1) of the European Convention has been found to apply to the interests of third parties in relation to planning decisions in a number of cases in Europe and in the United Kingdom, in particular R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions[31]('Alconbury') and R (Friends Provident) v Secretary of State for the Environment Transport and the Regions ('Friends Provident').[32]

The respondent argued that neither of these cases is persuasive in the ACT. It further argued that the position of third party objectors in planning disputes was not considered by the Divisional Courts or the House of Lords in Alconbury as it was conceded at first instance that 'decisions and orders' made under the various statutory instruments in issue in the case 'affect civil rights and obligations'.[33] The applicants in those cases were the entities who were seeking to develop the land therefore it was not necessary for the Divisional Courts or the House of Lords to consider the position of third party objectors.

However, the language used by the members of the House of Lords in Alconbury was wide. For example, Lord Hoffman stated:

All three cases involve general social and economic issues. They concern the rights of individuals to use, enjoy and own their land.[34]

This formulation of the right was adopted by Forbes J in Friends Provident, which involved a third party objector to a development application. The development proposal in that case involved a shopping centre and the third party objector was an owner of a nearby shopping centre. His Honour considered that the right engaged by Article 6(1) was the 'right to use, enjoy and own' a neighbouring property.[35]

The respondent submitted that Friends Provident is not persuasive in the ACT because that decision is significantly influenced by the express protection of property rights under Article 1 of the First Protocol to the European Convention. Moreover, the principal authority of the European Court upon which it is based - Ortenberg v Austria[36] ('Ortenberg') - is unclear and dependent upon specific provisions of the European Convention which are not replicated in the Human Rights Act. The latter issue concerns the need to establish a private right under the European Convention to fall within the purview of the term 'civil rights' under Article 6(1). In relation to the ACT Human Rights Act, this issue was addressed directly by Refshauge J in Capital Property Projects (ACT) Pty Ltd v ACTPLA[37] where his Honour noted that the right to fair trial in ACT is potentially broader than Article 6(1) of the European Convention as the word 'civil' is not used to modify 'rights and obligations' referred to in s 21 Human Rights Act.

In the Ortenberg case the applicant had made an unsuccessful objection to the approval of a development application for the land which adjoined hers. She subsequently failed in her domestic court challenge to the approval. Relying on Article 6(1), she brought proceedings in the European Court of Human Rights complaining that she had not had access to a court with full jurisdiction nor had she had a fair hearing. Under the relevant Austrian law a neighbour has a statutory right to object to the grant of planning permission on 'public law' grounds'[38] and Ms Ortenberg alleged in this case that the provisions of the relevant planning act[39] had not been complied with. However, she also relied upon a potential infringement of her pecuniary rights, because she considered that the works on the land adjoining her property would jeopardise her enjoyment of it and would reduce its market value.[40] The Court found that Ms Ortenberg's application was admissible with respect to Article 6(1), i.e. that Article 6(1) was engaged, but it had not been violated.[41]

Forbes J in Friends Provident analogised the right held by Ms Ortenberg with the rights of the third party objector in Friends in finding that the third party objector in that case was seeking to protect its enjoyment of that property and its market value from the effects of competition. This constituted a 'civil right' for the purposes of Article 6(1). His Honour's reasoning on the applicability of Ortenberg in Friends Provident is therefore distinguishable from the present case.

Importantly, both Alconbury and Friends Provident demonstrate the need to consider the particular rights asserted in the context of the particular statutes and human rights instruments.

However, the wide statements made by the House of Lords in Alconbury remain persuasive.

The interpretation of the term "rights and obligations recognised by law" might encompass incipient or inchoate rights. This approach is consistent with other statutory definitions of rights, for example, s 84 of the Legislation Act which defines 'right' to include 'capacity, interest, status and title'. Inchoate or incipient rights may also found novel claims. This was the approach adopted by the late Connolly J in West, affirmed by the Court of Appeal in the subsequent case New South Wales v West.[42]

The plaintiffs in West brought a claim against the defendants for alleged negligence in bushfire suppression activities during the period shortly before the bushfires that devastated the Canberra region in January 2003. An application was made by the defendant to strike out the action for damages as disclosing no reasonable cause of action. In their defence the defendants admitted certain factual matters, but denied the existence of a duty of care and further argued that pursuant to s 128 Rural Fire Act 1987 (ACT) their acts or omissions were done in good faith and therefore could not be the subject of any claim.

To determine the issues in the strike out application, Connolly J had to decide between the traditional common law approach which holds that an application for summary judgment is to be exercised with great care and the UK approach where summary judgment is more likely to be awarded to satisfy case management imperatives. Connolly J held that the traditional approach was to be preferred because it is consistent with the statutory recognition of the right to fair trial under s 21 of the Human Rights Act. Importantly, although there was no conclusive authority which had recognised the plaintiff's substantive claim, there was also no clear authority which precluded the claim. Even though the claim was novel it was not bound to fail.[43] His Honour quoted McHugh J writing extra-judicially as to the need for the law to develop pragmatically in response to social needs.[44] The Court of Appeal upheld his Honour's analysis as to as to the viability of the claim to resist a strike out application but did not comment upon the application of s 21 of the Human Rights Act.[45]

Although his Honour's reasoning is distinguishable because the question for determination was whether a private common law claim was sufficiently tenable to resist being struck out for failing to disclose a cause of action, the approach which adopts s 21 to preserve a fair trial for novel claims may be analogous to the current provision where a statute precludes access to certain procedures. His Honour takes a broad approach to the 'rights and obligations' in s 21 so as to include novel claims. Therefore the substantive 'rights' encompassed by the term 'rights and obligations recognised by law' in s 21 Human Rights Act may encompass incipient rights.

There is a question about the ambit of 'obligations' under the composite term 'rights and obligations' in s 21 of the Human Rights Act and whether such a term encompasses good administration. The authors Van Dijk et al argue that the determination of the existence of an 'obligation' under Article 6(1) of the European Convention is less problematic than 'rights' and the issue has not played an important role to date in the case law emanating from the European Convention.[46]

The Commissioner argued that the particular limits imposed on the scope of review by ACAT, which allow it to consider only a sub-set of the matters required to be considered by ACTPLA as the initial decision maker, might in some cases lead to anomalous or inconsistent outcomes on review, as ACAT cannot take s 120 factors into account when re-considering the approval decision. Moreover, the Planning Act does not spell out the interaction between compliance with the relevant code and the other factors ACTPLA is required to consider under s 120 of that Act.

This anomaly has the potential to undermine good administration, which may fall within the term 'obligations' referred to in s 21 of the Human Rights Act.

'Decided by a Competent, Independent Court or Tribunal'

There is a further question as to whether the 'rights and obligations' are 'decided' by the present application. The respondent argues that it is not enough that rights are 'affected by' or 'relevant to' an application for s 21 to be engaged. Rather, those rights must be 'decided' by the proceedings.

The foregoing analyses the relevant 'rights and obligations' for this issue but what must be 'decided' for the purposes of s 21? The opening words of Article 6(1) of the European Convention has comparable provisions, which state that the right to fair trial arises

[i]n the determination of his civil rights and obligations.

As explained by Lord Clyde in Alconbury, the 'reference to a determination reflects the necessity for there to be a dispute'.[47] Lord Clyde continued:

The distinction noticed by the Commission in X v United Kingdom (1998) 25 EHRR CD 88, 96 is not to be overlooked, that is the distinction between:

"the acts of a body which is engaged in the resolution of a dispute ('contestation') and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute."

But at least from the time when a power has been exercised and objection is taken to that exercise the existence of a dispute for the purpose of article 6(1) can be identified.[48]

There is clearly a dispute in this case, evidenced by the applicant's original representation made about the development on 27 July 2008. This case is therefore distinguishable from cases such as _R & London Borough of Camden, the Secretary Of State[49]_where no objection was originally taken to the development by the eventual claimant in the Divisional Court.

The Commissioner submitted that the UK and European case law suggests that in determining whether the planning approval process is consistent with the right to a fair trial it is necessary to look at the composite process for decision making, including:
- the characteristics of and procedures followed by the initial decision maker;
- opportunities for third parties to have input in the approval process, and
- the availability and quality of review mechanisms, including judicial review.

It is important to note that the application of Article 6(1) to administrative decisions does not mean that every administrative decision-maker must be constituted as an independent and impartial court or tribunal. As stated by the court in Kaplan v United Kingdom[50]:

"an interpretation of Article 6(1) under which it was held to provide a right to a full appeal on the merits of every administrative decision ... would therefore lead to a result which was inconsistent with the existing and longstanding legal position in most of the Contracting States.

To avoid that consequence, the principle that has evolved in the Strasbourg Court is that decision-making in administrative cases according to the strict judicial model is not required in all cases. This has been achieved in several ways, and the path to a settled position is still being trod."

Along the 'path to a settled position', it was held by the court in Zumtobel v Austria that Article 6(1) does not require 'that the procedure which determines civil rights and obligations is conducted at each of the stages before Tribunals meet ... the requirements of the provision'. [51] Hence Bell J concluded in the recent Victorian decision of Kracke v Mental Health Review Board that '[n]on-compliance in one respect may be overcome by the existence of a sufficient opportunity for appeal or review.' [52]

Where there is a composite process, the European Court of Human Rights has held that failure of one aspect of the process to comply with Article 6(1) (e.g. where a decision-maker is not independent[53]) will be balanced by 'the subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)'.[54]

Not every stage need comply. If a global view is adopted one may then take into account not only the eventual opportunity for appeal or review to a court of law, but also the earlier processes and in particular the process of public inquiry at which essentially the facts can be explored in a quasi-judicial procedure and a determination on factual matters achieved.[55]

There are two problematic areas for the current case. Firstly, contrary to Lord Clyde's comments, the operation of s121(2) of the Planning Act means that there is no step with a full quasi-judicial procedure where factual matters can be determined. On this point the Commissioner referred the Tribunal to Forbes J's analysis in Friends Provident which indicated that administrative decisions involving significant consideration of factual issues are more likely to require an opportunity for independent merits inquiry than decisions involving broader questions of public policy.[56]

Moreover, the eventual opportunity for appeal or review to a court of law will involve the limited grounds of judicial review rather than a full hearing on the facts.[57]

However, the House of Lords in Runa Begum v Tower Hamlets LBC[58] found that a limited right of review on questions of fact is sufficient. Lord Hoffman indicated that limitations 'on practical grounds' to the right to a review of findings of fact was not only clear from the case law of the Strasbourg Court[59] but also supported good administration.[60]

In Bryan v the United Kingdom[61] the European Court of Human Rights found that in assessing the sufficiency of the composite process it is necessary to have regard to matters such as:

the subject-matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.[62]

The Commissioner submitted that the availability of a partial merit review under s 121(2), relating primarily to issues of fact, and the assessment of specific criteria where rules have not been met, would be consistent with the right to a fair trial, when considered in the context of the whole planning approval process constituted by the Planning Act. This includes an administrative decision making process by ACTPLA, a statutory corporation independent from the Minister, and some procedural safeguards, such as the notification of affected parties and the opportunity for third parties to make representations regarding the development proposal. Importantly, the decisions of ACTPLA are also amenable to judicial review at common law and under the ADJR.

Counterbalanced with this are the limited rights of review under the ADJR, the disparity between the partial rights of review that ACAT can exercise under s 121(2) of the Planning Act and the respondent's obligations under s 120 of the Planning Act and the considerable cost associated with litigating issues in the Supreme Court.[63]

As noted by Baroness Hale of Richmond in R (Wright) v Health Secretary

What amounts to 'full jurisdiction' varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject-matter of the decision and the quality of the initial decision-making process. [64]

The submissions made by Commissioner on this point are compelling, however, there was no evidence led by the respondent as the composite process that applied in this case. The respondent provided information about the consideration given by it to the requirements of s 120 of the Planning Act in the Statement of Findings dated 22 January 2009 ('the Statement of Findings') and the Notice of Decision dated 19 December 2008. The findings made by the respondent in relation to the operation of s 121(2) Planning Act were also set out in the Statement of Findings and evidence about the ambit of partial review by ACAT under s121(2) was also led at the hearing, but the respondent did not lead evidence of the composite process nor provided detailed submissions on the issue.

The UK and European case law indicates that proof of the sufficiency of the composite process will be required where the right to fair trial is engaged and limitations are placed upon merits review. However, it is not necessary for the Tribunal to decide the issue in this case because we have concluded that the limitation on the right to fair trial is proportional under s 28 of the Human Rights Act 2004 (ACT), as discussed hereunder.

The Tribunal has found that the first limb of Besanko J's test in Fearnside is satisfied to a prima facie standard. The second limb of the test requires the Tribunal to consider whether the legislation contains a limitation which is reasonable within the meaning of s 28 of the Human Rights Act.

Section 28 states as follows:

(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

The Commissioner submitted that providing certainty and predictability for applicants for development approval, and the need to ensure a timely approval process are sufficiently important objectives to justify some constraints on third party review rights, while still preserving some aspects of merits review of important factual matters and the entitlement to judicial review. Therefore it was submitted that s 121(2) of the Planning Act might be a proportionate means to achieve that end.

Dealing with the factors set out in s 28(2) of the Human Rights Act, the Tribunal must firstly consider the nature of the right affected. As discussed above, the human right under consideration is the right to a fair hearing which is limited by the full or partial removal of merits review by the passage of the Planning Act. More broadly speaking, in the public debates which accompanied the passage of the Planning Act, the right was characterised as a third party appeal right in planning issues. The purpose of the limitation was to create a national leading practice model for land development in the ACT.[65] The limitation on third party appeal rights was a significant objective of the new regime which flowed from the model development assessment process proposed by the national Development Assessment Forum[66] and which reflected misgivings in the community that AAT appeals slowed down the process of approving legitimate development proposals. Although there was considerable debate as to whether the appeals were a major impediment to development in the ACT, the Minister advised the relevant Standing Committee that 'even a small number of appeals can be significant for developers and households given the costs, uncertainty, caution, hesitancy and loss of time caused by appeals'.[67] Therefore, applying s 28(2)(b) and (d) of the Human Rights Act, the purpose of the limitation was important and was regarded as necessary to achieve significant policy goals.

As to the nature and extent of the limitation in s 28(2)(c) of the Human Rights Act, the preservation of partial merits review is of some significance though practically speaking, since the Tribunal's jurisdiction may only be invoked by a breach of the Code rules and the Code rules are generally definitive and quantitative, the ambit of the partial review may be very narrow. But to paraphrase Lord Clyde in Alconbury, the right of access to tribunals is not absolute and 'limitations may be imposed so long as they do not so restrict or reduce the access that the very essence of the right is impaired'.[68]

The overarching consideration in s 28 of the Human Rights Act is that human rights may be subject to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society. The views of many stakeholders were taken into account in the consultation process which preceded the passage of the Planning Act and the 2008 Territory Plan and many of the stakeholders expressed views about desirability or otherwise of removing third party appeal rights. The Planning Act was subject to scrutiny as to its compatibility with human rights[69] and the question regarding the composite administrative process which may be necessary for long term compliance with s 21 of the Human Rights Act (as discussed above) was raised in Scrutiny Reports by the Standing Committee on Legal Affairs.[70]

In conclusion the Tribunal considers that the limit created by s 121(2) Planning Act to the right to a fair hearing in s 21 of the Human Rights Act is reasonable considering the broad objectives of the Planning Act, the public consultation that occurred prior to the passage of the Planning Act and the 2008 Territory Plan and ongoing opportunities for certain people to make representations about development proposals in combination with access to judicial review.

In the sections that follow, we address the aspects of merits review which remained permissible after the carve-out created by s 121(2) of the Planning Act. These specific areas of the Code were the subject of submissions at the hearing and we further set out our conclusions about the extent of compliance with particular rules and, where the rules have not been met, whether or not the relevant criteria are satisfied.

The only issue in this case was whether or not the proposed development complied with the rules in the Code relating to overlooking of adjacent properties. There are two such rules - Rule 23 and Rule 56 - in the Code. Two ancillary rules in the Inner North Canberra RZ4 code[71] were not considered to be relevant, since Rule 107 effectively duplicates Rule 56 while Rule 108 provides for specific exemptions from the strict application of Rule 23 relating to the building envelope but which do not arise in this case.

The context of Rule 23 is as follows:

Part A(4) - RZ4 - Medium Density Residential Zones

To provide for a range of residential forms that respect the residential character of the locality

(i) provide privacy between neighbours and between occupants and the public...

To ensure the amenity of surrounding properties is optimised, particularly in relation to privacy, overshadowing and solar access...

The only section of this Element that specifically refers to privacy is that headed 2.3 Building Envelope, and Criteria C23 which read:

The built form does not adversely impact on the amenity of neighbouring properties by ensuring:

a) sufficient spatial separation between adjoining developments

b) the protection of a reasonable amount of privacy and solar access to adjacent dwellings and their associated private open space.

The relevant rule is Rule 23 which reads

Buildings are sited wholly within the building envelope defined by

a) Blocks that are the north facing boundary of an adjoining residential block:

i) within the primary building zone (PBZ), planes projected at 45 degrees above horizontal from a height of 2 m above natural ground level at the side boundaries, up to a maximum building height of 12 m above natural ground level

ii) within the rear zone (RZ), planes projected at 30 degrees above horizontal from a height of 2 m above natural ground level at the side and rear boundaries, up to a maximum height of 12 m above natural ground level.

i) within the primary building zone (PBZ), planes projected at 45 degrees above horizontal from a height of 3.5 m above natural ground level at the side boundaries, up to a maximum building height of 12 m

ii) within the rear zone (RZ), planes projected at 30 degrees above horizontal from a height of 3.5 m above natural ground level at the side and rear boundaries, up to a maximum of 12 m above natural ground level.

Mr Mossop conceded that the proposed development was not wholly contained within the building envelope, but contended that non-compliance was confined to two small incursions beyond the building envelope of the proposed building and that these could have no impact on the privacy or solar access of Ms Thomson's block or any other block.

Reference to the plans showed that the incursions beyond the building envelope were indeed very small and confined to the uppermost parts of the roof at the north and south ends of the proposed building. Nevertheless, as the Rule has not been met, the Tribunal is obliged to consider whether the relevant Criteria have been complied with.

It is clear that the non-compliance with the Rule can have no effect whatsoever on the privacy of Ms Thomson's residence or her private open space. The Tribunal therefore concludes that the failure to remain within the building envelope has no adverse impact on the amenity of the neighbouring property in question.

The context of rule 56 is as follows:

Part C - Development Type Controls

Part C(1) - Multi Unit Housing

a) To ensure buildings are compatible with, and complement, the built form, siting and scale of surrounding properties and are of an appropriate residential character

i) provide privacy between neighbours and between occupants and the public ...

c) To ensure the amenity of surrounding properties is maintained, particularly in relation to privacy, overshadowing and solar access.

The only section of this Element that relates to the privacy of Ms Thomson's dwelling is that dealing with Rear Setbacks which reads as follows

Rear setbacks are a minimum of:

a) 3 m to the lower floor level

*Where design incorporates blank walls, windows with sill heights ≥ 1.7 m from the floor or windows with permanently fixed panes of obscure glass or screened decks.

** Where design incorporates other walls, outer faces or unscreened decks, balconies and external stairs.

Buildings and other structures are sited and reflect residential (suburban) scale, height and length to ensure:

a) sufficient spatial separation between adjoining developments

b) the protection of a reasonable amount of privacy and solar access to the dwelling (or adjacent dwellings) and outdoor spaces (or adjacent outdoor spaces).

The plans before the Tribunal show that the upper floor level of the building is set back 9m from the rear boundary. Mr Mossop submitted that as the Rule was complied with, s 121(2) of the Planning Act precluded the Tribunal from reviewing this aspect of the proposed development. The Tribunal agrees that this is the effect of s121(2).

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (278 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (17)

THOMSON v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2009] ACAT 38 (2 October 2009)