ACT Planning and Land Authority v Robert William Temple
[2014] ACTSC 32
•28 February 2014
ACT PLANNING AND LAND AUTHORITY v ROBERT WILLIAM TEMPLE
[2014] ACTSC 32 (28 February 2014)
COURTS & TRIBUNALS – Powers of ACAT – appeal from ACAT under Planning and Development Act 2007 (ACT) – “reviewable decision” – review of controlled activity order – whether Tribunal reviewed non-reviewable decision not subject to application
COURTS & TRIBUNALS – Powers of ACAT – appeal from ACAT under Planning and Development Act 2007 (ACT) – whether orders contrary or beyond power: s 68 ACT Civil and Administrative Tribunal Act 2008 (ACT)
COURTS & TRIBUNALS – Powers of ACAT – procedural unfairness – Tribunal’s expertise – appeal from ACAT under Planning and Development Act 2007 (ACT) – review of controlled activity order – whether procedural unfairness in Tribunal relying on and preferring own expertise without allowing parties to comment on findings: s 26 ACT Civil and Administrative Tribunal Act 2008 (ACT)
ACT Civil and Administrative Tribunal Act 2008 (ACT), ss7, 8, 26, 68, 86
Planning and Development Act 2007 (ACT), ss 153, 156, 162, 339, 350, 351(2), 358(3), 407, 410; Sch 1, 2
ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINSTRATIVE TRIBUNAL
No. SCA 77 of 2012
Judge: Nield AJ
Supreme Court of the ACT
Date: 28 February 2014
IN THE SUPREME COURT OF THE )
) No. SCA 77 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINSTRATIVE TRIBUNAL
BETWEEN: ACT PLANNING AND LAND AUTHORITY
Appellant
AND: ROBERT WILLIAM TEMPLE
Respondent
ORDER
Judge: Nield AJ
Date: 28 February 2014
Place: Canberra
THE COURT ORDERS THAT:
leave be granted to the Authority to appeal against the orders of the Tribunal given on 15 August 2012.
the Authority’s appeal against the said orders of the Tribunal is allowed.
the said orders of the Tribunal are set aside.
the decision of the Authority not to make a controlled activity order is confirmed.
each party bear its own costs of the proceedings.
INTRODUCTION
The applicant/appellant is the ACT Planning and Land Authority (hereinafter, the Authority), which has planning control over building developments within the ACT.
Mrs Kathryn Shonk (née Storer) and Mr Matthew Shonk are the lessees of 64 Stonehaven Crescent, Deakin, in the ACT (hereinafter, the subject premises), who had applied to the Authority to develop the existing dwelling upon the subject premises by extending the dwelling and adding a deck and a carport.
Mr Michael Collins, of Asset Certifiers, is the appointed independent certifier of the development of the subject premises proposed by Mr and Mrs Shonk.
The respondent is Mr Robert Temple. The respondent and his wife, Mrs Irma Temple, are the lessees of 66 Stonehaven Crescent, Deakin; they are the next door neighbours of Mr and Mrs Shonk.
A DEVELOPMENT APPLICATION
On 16 June 2010 Mr and Mrs Shonk lodged an application with the Authority to develop the subject premises by extending the existing dwelling and adding a deck and a carport. A Form 4, “Letter of Appointment”, form signed by Mrs Storer (as she was then) and Mr Shonk, appointing Mr Collins as certifier was with the development application. An “Application for Merit Track Approval – Statement against the Relevant Criteria” form signed by Mr Collins was also with the development application.
By letter dated 30 June 2010 the Authority informed Mr and Mrs Temple (and several other neighbours) that Mr and Mrs Shonk had applied to it to develop the subject premises and that:
If you feel [the] application may impact on you in any way you may wish to submit a written representation clearly stating the reasons for your submission.
...
Representations must be received by the Authority by close of business 16 July 2010.
(see ss 153 and 156 of the Planning and Development Act2007 (ACT), hereafter the PD Act)
The Authority’s letter to them prompted the respondent, on behalf of his wife and himself, to ask the Authority, by emails of 6 and 8 July 2010, to provide its planning and development policies and plans, which resulted in the Authority providing the Territory Plan, the single dwelling housing code and the RZ1 suburban zone objectives table to the respondent.
A REPRESENTATION IN RELATION TO THE DEVELOPMENT APPLICATION
By letter dated 15 July 2010 the respondent, on behalf of his wife and himself, drew the Authority’s attention “to a number of inconsistencies concerning the application”, which “inconsistencies” were described in detail, and said that “we should be grateful if you would take all of the matters into account in assessing the application”.
By email dated 26 July 2010 the Authority informed Mr and Mrs Shonk, Mr Collins and Mr and Mrs Temple, the only neighbours of Mr and Mrs Shonk to have submitted a representation to the Authority, that:
The public consultation period for DA 201017912 has now closed.
Attached for your information is a copy of all representations received by the ACT Planning and Land Authority during the public consultation period.
The assessment of your application will now be finalised taking into consideration the representations that have been received. You will be advised in writing of the decision as soon as the DA has been determined.
By letter, undated, but probably 30 July 2010 the Authority informed Mr Collins that:
Section 141 Further Information Request: Applicant to revise proposal to met [sic] the mandatory Rule of a 50% plot ratio. All relevant plans to be amended and submitted to the Authority along with a breakdown of the Gross Floor Area calculations on the Site Plan; Please provide an Upper Floor Level floor plan; Please clarify the development proposal; Please ensure the Statement Against the Relevant Criteria is accurate once the above amendments have been made.
and requested that the revised plans and supporting documents be submitted to the Authority by 27 August 2010.
AN AMENDED DEVELOPMENT APPLICATION
Accordingly, on 16 August 2010 Asset Certifiers, by Mr Collins, on behalf of Mr and Mrs Shonk, lodged a “S.144 Amendment” form together with amended plans and a revised “Application for Merit Track Approval – Statement Against the Relevant Criteria” form with the Authority. The amended plans were provided to Mr and Mrs Temple by Mr Shonk.
By letter dated 3 September 2010 the respondent, on behalf of his wife and himself, drew the Authority’s attention to the amended plans, criticised some wording on the plans and concluded that:
the representations set out in our letter dated 17 July 2010 represent our concerns over the scheme so far as the effects on the existing level of amenity we enjoy are concerned, and also concerning impact upon the existing streetscape.
A FURTHER AMENDED DEVELOPMENT APPLICATION
On 9 September 2010 Asset Certifiers, by Mr Collins, on behalf of Mr and Mrs Shonk, lodged a “Further Information – S.141” form and a “Submission of Further Information” form with the Authority, bringing up-to-date the details of the proposed development of the subject premises.
On a date after 9 September 2010 and before 29 September 2010, the date does not appear on the documents, an Assessment Officer of the Authority, whose name does not appear on the documents, completed the “Territory Plan Code Requirements Merit Track” form and the “Legislated Requirements Merit Track” form and concluded that, except in two respects, of which neither would make “any adverse impact on the neighbours amenity”, the development application met the requirements for approval.
THE DEVELOPMENT APPLICATION IS APPROVED
On 29 September 2010 Ms A Davidson, a delegate of the Authority, acting pursuant to s 162 of the PD Act, approved the development application, subject to certain specified conditions, as stated in the “Notice of Decision” form, because “[t]he application satisfactorily meets the requirements for approval. The application [is] approved because, based on the documentation and in the form modified by the imposed conditions, it [is] considered to meet the relevant code, being the Single Dwelling Housing Development Code.”
On 1 October 2010 the amended plans, drawn 12 August 2010, were stamped by a delegate of the Authority “Approval Granted subject to the Conditions set out in the Notice of Decision pursuant to Section 162”.
As an attachment to an email dated 11 October 2010 the Authority provided the Notice of Decision to Mr and Mrs Shonk and to Mr Collins.
By letter dated 12 October 2010 the Authority informed Mr and Mrs Temple that:
Development Application Number 201017912 has been approved subject to conditions.
As you lodged a representation in relation to this Development Application please find attached a copy of the Notice of Decision in accordance with the requirements of Section 170 of the Planning and Development Act 2007.
THE BUILDING WORKS
In about mid-November 2010 Mr G C Mason, the builder who had contracted to undertake the development, commenced work upon the subject premises. I note that the building works were substantially completed well before 11 July 2012.
Perhaps not surprisingly, the commencement of the building works prompted the respondent, on behalf of his wife and himself, to send an email and a facsimile letter both dated 22 November 2010 to the Authority requesting that the Authority “clarify” whether the approval allowed a “carport” or a “garage”.
By email dated 23 November 2010 the Authority replied to the respondent’s request, saying that:
Thanks [sic] you for your email regarding the proposed carport that was conditionally approved at block 11 Section 18 Deakin.
The carport was approved with the condition that at no time is the carport to be enclosed with external walls so as not to exceed the mandatory 50% plot ratio. The only walls that are permissible are the two external walls of the existing house.
If you believe that the carport is being built inconstant (sic) with the approved plans and conditions you can complete a Controlled Activity Complaint form and provide it to the land and Lease Regulation Unit at either [email protected] or mail it to:
Land and Lease Regulation Unit
GPO Box 1908
Canberra ACT 2061
receipt of the completed form an officer will look into the matter.
A CONTROLLED ACTIVITY COMPLAINT
Being concerned that the building works were being performed contrary to the approved plans, by letter dated 7 April 2011 the respondent lodged a “Controlled Activity/Construction Occupations Complaint Form” with the Authority. Under the heading “3. Summary of Complaint”, on the form, the respondent ticked the boxes “Development without Approval” and “Development not in accordance with approval”. Attached to the form were 5 pages containing 20 numbered paragraphs setting out the respondents’ complaints. I assume that, as the development of the subject premises had the Authority’s approval, the basis of the respondent’s complaint was that the building works were being performed “not in accordance with the approval”.
After an audit of the building works conducted on 24 June 2011 by Mr S Bond and Mr J Swale, inspectors of the Authority’s Investigations Unit, the Authority informed the respondent that:
I refer to your complaint submitted to the ACT Planning and Land Authority (ACTPLA) on 7 April 2011 regarding the above block. ACTPLA has investigated your complaint and considers that the conduct complained about is not a controlled activity as identified in Schedule 2 of the Planning and Development Act 2007 (the Act). Further, the complaint you have made is not a contravention of the Construction Occupations (Licensing) Act 2004, or an operational Act.
As a part of the investigation into your complaint, ACTPLA officers conducted an audit into the building and development approvals. I wish to advise you that the Audit did not identify any breaches of the Building Act 2004 or the Planning and Development Act 2007. Therefore, the development is being constructed in accordance with the development approval DA-201017912.
Furthermore, the allegation into a conflict of interest between the lessee/builder and the certifier is not sustained by the Applicant/Lessee Declaration that forms part of the development application. The conflict of interest stated in this document is in relation to any associations with ACTPLA staff. As there is no association with ACTPLA staff then there is not a conflict of interest.
In accordance with section 123 (b) (i) of the Construction Occupations (Licensing Act) 2004. ACTPLA is satisfied that no further action is necessary in relation to the complaint.
In accordance with section 345 (1) (a) of the Act, ACTPLA has determined that no further action is required in relation to your complaint because the structure has the required development approval.
ACTPLA is satisfied that no further action is necessary in relation to the complaint.
However, the Authority’s response to his complaint did not satisfy the respondent and, so, by letter dated 6 July 2011, he requested that the Authority reconsider his complaints in light of his further criticisms of Mr Collins, and the “relationship” between Mr Shonk and Mr Collins.
By letter dated 21 July 2011 the Authority responded to the respondent’s letter dated 6 July 2011 informing him that:
Thank you for your letter dated 6 July 2011. The Investigation Unit has conducted a review of the determination made on 27 June 2011. The process of the review is to ensure that all relevant documentation has been examined and that the determination has taken into consideration all factors that are related to your complaint.
It has been made apparent that you are of the opinion that the documents submitted by the applicant, in relation to DA-20101792, are of a false and misleading nature. Furthermore, you have made the allegation that the proposed structure is not compliant with the RZ1 Suburban Zone Rules. These matters directly relate to the development approval process. Unfortunately the Investigations Unit cannot comment on the development approval process.
You may wish to contact the assessing officer for information regarding the assessment process. The development assessing officer can be contacted through customer services on (02) 6207 1923.
However, the Investigations Unit can advise that the development is being constructed in accordance with the development approval. Therefore, the conduct complained about is not a controlled activity as identified in Schedule 2 of the Planning and Development Act 2007.
It has been further noted that you have concerns relating to the relationship of the lessee/building and the certifier. The Investigations Unit have reviewed the relationship under section 23 of the Building Act 2004 and have determined the following:
·Personal Relationship – The certifier and lessee/builder are not in what is considered a personal relationship. This is due to the fact that they are not related nor in any way spouses to each other. A personal relationship relates to intimate connection between two parties, for example siblings, husband and wife or parents.
·Professional Relationship – Suggests that the certifier and the lessee/builder are associated with each other externally, in terms of their professions. Since both parties are not professional fire fighters, their relationship is not of a professional nature.
·Commercial Relationship – Relates to commercial interest of both parties in an external project. Neither the certifier or the lessee/builder are connected in a commercial project outside of the development occurring on the above block. Their volunteer fire service is not considered commercial.
·Financial Relationship – Involves the two parties exchanging monies externally from the above project. The volunteer fire service is not of financial interest to either party.
Therefore, the fact that the two entities involved in the construction service are acquainted by their volunteering for the fire service does not constitute a relationship under the Building Act 2004.
The Investigations Unit has come to the determination that the relationship between the lessee/builder and the certifier is not in breach of the Building Act 2004 and therefore not considered a conflict of interest.
In accordance with section 123 (b) (i) of the Construction Occupations (Licensing) Act 2004, ACTPLA is satisfied that no further action is necessary in relation to the complaint.
In accordance with section 345 (1) (a) of the Act, ACTPLA has determined that no further action is required in relation to your complaint because the structure has the required development approval.
ACTPLA is satisfied that no further action is necessary in relation to the complaint.
Again, the Authority’s response to his complaint did not satisfy the respondent and, by letter dated 26 July 2011, he requested that:
a further review be undertaken by your office having regard to the following points, especially concerning the relationship between the lessee/builder (Mr Matthew Shonk) and (Mr Michael Collins), the likelihood of conflict of interest (actual or perceived), and also in relation to the accuracy of declarations made by Mr Collins in the “Application for Merit Track Approval – Statement against the Relevant Criteria”
and he expanded upon his complaints under the headings “1. Professional Relationship”, “2. Personal Relationship” and “3. Declarations made by Mr Collins in the Application for Merit Track Approval – Statement against the Relevant Criteria” over nearly 3 pages of single-spaced typing.
Then, by email and letter both dated 8 August 2011 the respondent wrote to the Authority saying that:
As you will recall, I was concerned about issues concerning false or misleading declarations and conflict of interest which had resulted in significantly greater development occurring at the above property than that to which approval had been granted. I therefore thought that the lessee should be immediately required to remove any portions development not sited wholly within the Building Envelope, and that the lessee should not be allowed to carry out any further developments outside of the Building Envelope in the PBZ and RZ.
As mentioned in my letter of 28 April 2011, I was also concerned that overall height of the 1st floor addition was being constructed greater than the size and scale shown on the drawings submitted to ACTPLA with the Development Application (hence increasing the height of the building), not as a result of a building construction tolerance matter but as an intentional step (i.e. in contravention of ACTPLA’s regulations prohibiting developers from deliberately designing to incorporate tolerances). In effect, all aspects of the work, and the construction processes involved, were foreseeable from the outset, hence there being no justification for increasing the size and scale shown on the original drawings unless done deliberately.
While I sincerely appreciate your assistance to date and equally understand the investigations are subject to very strict processes and procedures, I must express concern at the time that this matter is taking to investigate. This is particularly as the nature of the complaint is exactly as it was when first notified to you on a 7 April 2011.
Also, while not wanting to sound critical, or not wishing to see due process from taking it’s course [sic], I must, however, register concern about the time that the matter is taking to come to an outcome. This is particularly due to the fact that during the space of 4 months the works at the property have gone from a skeletal state to almost being complete, and therefore moving closer to the point where a Certificate of Occupancy will be sought (presumably also in the hands of the Certifier, Mr Michael Collins who I believe is central to the matters complained of). I therefore firmly believe that this is a stage that should be prevented if parts of the development are demonstrated to extend beyond the Building Envelope, or are greater than 8.50 metres in height (i.e. measured above Natural Ground Level along the relevant boundaries) and until any development not sited wholly within the Building Envelope is corrected.
Thus, on 10 August 2011 the Authority wrote to the respondent telling him that:
I refer to your letter dated 26 July 2011, and the subsequent letter dated 8 August 2011, in regards to the relationship between the certifier and the lessee/builder and the accuracy of the information relating to development approval DA-20101792.
The information you have provided has been noted in relation to the alleged professional and personal relationship between the certifier and lessee/builder. Furthermore, your concerns that the development approval documents have been compromised by the proposed relationship between the certifier and lessee/builder have also been reviewed.
I will firstly inform you that the decision to approve the application for development approval was made by a delegate appointed under section 162 of the Planning and Development Act 2007. The decision was based on a merit track application in accordance with division 7.2.3 of the Planning and Development Act 2007.
In accessing the development application, the delegate; and the assessing officer; have to be satisfied that the proposed development complies with the relevant rules and/or criteria as stated in the Residential Zones – Single Dwelling Housing Development Code. As you are aware the proposed development is not compliant with rule 3 for building envelopes since it is greater than 8.5 m above natural ground level. However, since the development was approved, this means that the delegate and assessing officer have assessed the development to comply with criteria 3 for building envelopes; which states:
The building 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 the solar access to adjacent dwellings and their associated private open space.
Unfortunately, in this case, there are no grounds to overturn the decision of a delegate. If you require further information regarding the approval process and the power of delegates you can contact the development approval area via customer services on (02) 6207 1923.
With regard to the development approval, I will reiterate, as stated in a letter to you dated 21 July 2011, that the development that is being built in accordance with the development approval. Further, the variances that have occurred during the construction of the property comply with the permitted variations as stated under schedule 1A section 1A. 11 of the Planning and Development Regulations 2008.
Being that this is the case, your concerns that the applicant/certifier provided false and misleading information is unsubstantiated. If the development application documents are approved and the structure is being built in accordance with the said documents, then the documents are not of a false and misleading nature.
Therefore, in accordance with section 345 (1) (a) of the Planning and Development Act 2007 no further action can be taken since the development was approved by a delegate and is being constructed in accordance with the development approval.
I would like to further inform you that while the certifier and lessee/builder share a common interest in external activities; I have been informed, by senior policy officer, that the nature of their relationship is not a breach of section 23 of the Building Act 2004. The relationship is not a conflict of interest. The certifier is acting within the parameters of a construction practitioner.
The Investigations Unit is satisfied that no further action is necessary in relation to the complaint.
Again, the Authority’s letter dated 10 August 2011 did not satisfy the respondent and so, by letter dated 15 August 2011, he wrote to the Authority repeating in detail and at length (as he had done before) his complaints, demanding a review of them “at a senior level” and threatening to apply for a “Controlled Activity Order”.
Also, before receiving a reply to his letter dated 15 August 2011 from the Authority, the respondent applied, under the Freedom of Information Act 1989 (ACT), for all of the documents held by the Authority in relation to the subject development application and then, after receiving the Authority’s “complete file and records in relation to Development Application No. 20107912”, by letter dated 6 September 2011, he wrote to the Authority’s repeating, yet again, his complaints and asking for a “consideration of the matter”.
The respondent’s letter dated the 6 September 2011 to the Authority was followed by letters dated 19 September 2011, 28 September 2011, 18 October 2011, 27 October 2011 and 14 November 2011 from him, all demanding a reply to his letter dated 6 September 2011.
Accordingly, by letter dated 23 November 2011, the Authority informed the respondent that:
With regard to your concerns, I note that while the dwelling is a duplex, it is the only residence on the lease and as a consequence is defined for the purpose of our planning law as a single dwelling.
I can therefore confirm that the development application (DA) was appropriately assessed under the Single Dwelling Housing Development Code. Had the DA been lodged under the wrong code the Environment and Sustainable Development Directorate (ESDD) would have refused to accept the application for assessment. Where plans are not sufficient for an assessment to be undertaken the assessing officer has the ability to request further information. In many instances site inspections are also carried out by DA officers as part of the assessment process.
I note that the reduced levels indicated in the approved plans reflect the survey information for the land as provided to my inspectors by the registered surveyor. I also note that the private certifier, Mr Michael Collins, correctly identified that the development approval was sought and granted before he issued the building approval. I am advised that the development assessment process considered the scale of the development including issues relating to overshadowing and overlooking.
Please be advised that the controlled activity complaint process is not a mechanism by which you may seek to have a delegate’s decision reviewed or revoked. At any rate I have no power to overturn the delegate’s decision to approve DA-2010 1792.
I am not satisfied that there is a conflict of interest such that would prevent Mr Collins from conducting himself awfully in relation to the duties he has performed as a private certifier for the lessee. Further, there is no indication that Mr Collins has an interest in the work with regard to the requirements of the Building Act 2004, nor conducted himself in anything other than a lawful manner.
Based on the information available to me including evidence obtained by my inspectors during the course of the investigation, I am of the opinion that the building work has been conducted in accordance with the development approval and within the permitted construction tolerances as outlined by the Planning and Development Regulations 2008. I do not feel that it is appropriate to require the matter to be re-investigated at this stage.
If you are still not satisfied you may lodge an application for controlled activity order and pay the required fee which at this time is $111.80. I have attached a copy of the approved form of your convenience. You may lodge the completed form and pay the required fee at the ESDD shopfront at 16 Challis Street, Dickson. If you are not happy with a decision made in relation to a controlled activity order you have the right of appeal to the ACT Court of Administrative Appeals Tribunal [sic] (ACAT).
Alternatively if you have concerns regarding the investigation of your complaint you may wish to raise the issue with the ACT Ombudsman, who investigates issues of administrative deficiency. The ACT Ombudsman can be contacted on 1300 362 072.
AN APPLICATION FOR A CONTROLLED ACTIVITY ORDER
On 10 February 2012 the respondent lodged with the Authority an “Application for a Controlled Activity Order” form in relation to the development of the subject premises. Under the heading “Part 3. Controlled activity” the respondent ticked the box “Undertaking a development for which development approval is required (a) without development approval; or (b) other than in accordance with the development approval” and under the heading “Part 4. Controlled activity order direction” he ticked the boxes “To comply with the terms of a development approval to undertake development”, “To carry out a development in accordance with a condition under the development approval that approved the development” and “To demolish a building or structure, or a part of a building or structure that has been constructed without development approval or permission required under the Territory law”. Attached to the form were 6 pages, containing 27 numbered paragraphs, in which he repeated, in detail and at length, his complaints, and 7 other documents.
WHAT IS A CONTROLLED ACTIVITY
Section 339 of the PD Act defines “controlled activity” to mean-
(a)an activity mentioned in schedule 2; or
(b)an activity, including an activity under another Act, prescribed by regulation.
Schedule 2 Controlled Activities includes, relevantly:
Undertaking a development for which development approval is required –
(a) without development approval; or
(b) other than in accordance with the development approval.
None of the other 6 prescribed “controlled activities” is presently relevant.
WHAT IS AN APPLICATION FOR A CONTROLLED ACTIVITY ORDER
Section 350 of the PD Act provides, relevantly, that –
(1)A person may apply to the planning and land authority for a controlled activity order directed to 1 or more of the following:
(a)the lessee or occupier of premises where a controlled activity was, is being, or is to be, conducted;
(b)anyone by whom or on whose behalf a controlled activity was, is being, or is to be, conducted.
WHAT DECISION MAY BE MADE IN RESPECT OF AN APPLICATION FOR A CONTROLLED ACTIVITY ORDER
Section 351(2) of the PD Act provides that:
The planning and land authority may decide –
(a)to make a controlled activity order of the kind sought; or
(b)to make a controlled activity order (including a different kind of order) that is not more burdensome than the order sought; or
(c)not to make a controlled activity order.
I think that it is clear that the issue that the Authority had to decide was whether or not the building works were being performed in accordance with its approval.
WHAT IS THE EFFECT OF A CONTROLLED ACTIVITY ORDER
Section 358(3) of the PD Act provides that –
(3) A controlled activity order may direct anyone to whom it is directed to do 1 or more of the following:
(a) not to begin a development without development approval;
(b) not to carry out a development without development approval;
(c) to comply with a lease provision or development agreement;
(d) to restore any land, or a building or structure on the land, that has been altered, damaged or fallen into disrepair in breach of a lease provision or development agreement;
(e) to comply with the terms of a development approval to undertake a development;
(f) to carry out a development in accordance with a condition under the development approval that approved the development;
(g) to demolish a building or structure, or a part of a building or structure, that has been constructed without development approval or permission required under a territory law;
(h) to demolish a building or structure, or a part of a building or structure, that encroaches onto, over or under unleased territory land without approval granted under a territory law;
(i) to restore any land, building or structure that has been altered without development approval or permission required under a territory law;
(j) to replace with an identical building or structure any building or structure that has been demolished without development approval or permission required under a territory law;
(k) o apply for development approval for a building or structure, or part of a building or structure, that has been constructed without development approval;
(l) to clean up a leasehold and keep it clean;
(m) if the person to whom the order is directed is bound by a land management agreement—to comply with the land management agreement;
(n) not to do anything that is a controlled activity whether or not a controlled activity order has been, or could be, made under paragraphs (a) to (m).
A SHOW CAUSE NOTICE IS ISSUED
By letter dated 17 February 2012 the Authority, acting in pursuance of s 350 of the PD Act, required Mr and Mrs Shonk to show cause “why an order should not be made against them.”
By letter dated 26 February 2012 Mr Shonk responded to the Authority’s “show cause notice” saying that:
I have read that Mr Temple’s six page diatribe and believe he has raised two points that I will address in a much briefer manner than that in which he has revealed them.
Point 1:
Mr Temple believes that the relationship I have with my certifier Mr Collins is improper.
Mr Collins and I are indeed both members of the ACT Fire Brigade. I was unaware before beginning this development that he was also a qualified public certifier in the ACT and as such enquired if he was interested in certifying my proposed development. He accepted and was employed, and I have been invoiced as any customer would.
To imply that;
1. Mr Collins would jeopardise his licence by cutting corners on my behalf or,
2. I would ask or expect him to do so,
I find offensive, ludicrous and unreasonable.
In essence Mr Temple is complaining that I employed someone that I know, which I don’t believe is against the law.
Point 2:
Mr Temple believes that the development exceeds the restrictions of the Territory Plan, notably that it exceeds the building envelope and maximum height.
Mr Temple has mis-read the Territory Plan.
He has taken all measurements from the natural ground level at the rear boundary, where in fact most of the measurements applying to building envelope and building height (in the primary building zone) should be taken from natural ground level at the corresponding point on the side boundary, which ACTPLA would have been well aware of when they approved the development.
When the development is assessed correctly according to the rules set out in the Territory Plan it is within the building envelope and well under the 8.5 m height restriction.
In summation,
1.The site has development approval.
2.The site has building approval.
3.ACTPLA representatives have visited the site as a result of a previous complaint by Mr Temple about relative floor heights and taking measurements to ensure the development has been constructed to plan and within construction tolerances.
I believe that no further action should be taken to this show cause notice under Section 346 of the Planning and Development Act 2007 because it meets the following criteria;
·it lacks substance (development approval has been granted).
·It is frivolous and extremely vexatious.
·It has been adequately dealt with.
On 27 March 2012 the Authority decided not to make a controlled activity order for the following reasons:
REASONS FOR THE DECISION
1.On 29 September 2011 the development approval (DA) was approved by the Planning and Land Authority. The DA is for an extension to the upper floor, ground floor living area and kitchen and an addition of a double carport.
2.On 12 October 2010 a building approval (BA) was issued by Mr Michael Collins for the additions and extension to the existing dwelling. The commencement notice was issued on the same date to the builder; Mr Gregory Mason (Lic.No. #1996XXXXX – C Class).
3.On 7 April 2011 the investigations unit received a complaint from Mr Robert Temple. Mr Temple alleged that the development application logged [sic] was false and misleading and that the structure is not being constructed in accordance with the approved plans. Mr Temple alleged that the documents submitted as part of the DA did not correctly show the survey data and that the extensions were higher than detailed. Further, Mr Temple alleged that the certifier, whom [sic] was the appointed applicant for the DA, knows the lessee of the property and is acting in conflict of interest.
4.On 3 June 2011 Mr Collins provided the investigation unit with survey data to show the Natural Ground Level (NGL) and finished floor levels associated with the dwelling.
5.One 24 June 2011 Mr Sam Bond and Mr Jonathan Swale conducted an inspection to identify if the structure is being constructed in accordance with the DA. The inspectors met with the lessee of the property on site. The inspectors measured internal heights of the extension. There was discrepancy in the height of the first floor; however the variance were [sic] within the vertical height tolerances as stated in the Planning and Development Regulations 2008.
6.On 20 July 2011 Mr Bond informed Mr Temple that the development is being constructed in accordance with the DA.
7.On 13 February 2012 Mr Robert Temple submitted an application for controlled activity order pursuant to section 350 of the Planning and Development Act 2007. The application for an order reiterated the allegations Mr Temple raised earlier with his complaint. Mr Temple further alleged that the lessee, Mr Shonk, and the certifier, Mr Collins, have a personal relationship that is in conflict of their professional duties. Furthermore, this conflict of interest is alleged to have caused Mr Collins to submit plans to the planning and land authority that were of a false and misleading nature. Mr Temple alleged that the plans used for the developments do not indicate a true NGL and therefore cause the actual height of the property to exceed the proposed height.
8.On 16 February 2012 a show cause notice was issued to Mr Matthew Shonk and Ms Kathryn Shonk in relation to the application for controlled activity order submitted by Mr Temple. The show cause notice was to inform the lessee’s of the application for order as well as to give them the opportunity to respond. Attached to the show cause notice was a copy of the original application.
9.On 27 February 2012 the investigation unit received a response from Mr and Mrs Shonk. The response derives the allegations from Mr Temple’s application for an order and provided statements as to why they were not accurate. The lessees indicate that Mr Shonk and Mr Collins were both members of the ACT Fire Brigade, however, this relationship did not impact on the professional nature of the construction of the dwelling. Further, the lessees found it unreasonable to assume that Mr Collins would jeopardise his professional licence to suit the needs of themselves, as clients.
The response further outlines that the measurements as taken by Mr Temple in relation to the building height do not use the appropriate NGL. The lessees detail that the NGL used by Mr Temple is not where the development meets the ground but from the lowest point on the site. The lessees state that the height of the development needs to be taken from the NGL within the primary building zones (where the second storey element is located). Further, it is stated that the development has all the appropriate approvals and has been inspected by ACTPLA representatives.
10.On 29 February 2012 a review of the building height was conducted by Mr Bond. Mr Bond used the information provided in the approved plans, survey data and inspection records to derive the actual height of the property. Mr Bond further noted that Mr and Ms Shonk’s response correctly states that the height of the dwelling should be taken from within the primary building zone. The findings of this review found that the actual height of the dwelling was within 8.5 m high of the NGL.
11.In accordance with the above, it has been determined that the height of the dwelling is not outside the parameters of planning law. Further, the [sic] there is no evidence that the licensees involved have not acted out of their scope of duties or provided false and misleading information.
12.The relationship between the lessee and certifier was considered. There is no evidence that these parties have a relationship beyond the fact that they both work for the Fire Brigade and are acquainted. The Directorate of Justice and Community Services (JACS) Annual Report 2010 – 2011 states that there are 332 Fire Brigade officers in the ACT. It would be unreasonable to draw the conclusion that a common employer, particularly with such a large workforce, inherently creates a conflict of interest in the absence of any other evidence.
Based on the evidence, I have determined there are no grounds to issue a controlled activity order.
AN APPLICATION FOR REVIEW OF THE DECISION OF THE AUTHORITY
On 27 April 2012 the respondent filed an application in the ACT Civil and Administrative Tribunal (hereinafter, the Tribunal) seeking a review of the decision of the Authority not to issue a controlled activity order in relation to the development of the subject premises. With his application, the respondent lodged a document, headed “Why the decision should be reviewed”, of the 9 pages, in which he repeated the basis for his complaints in relation to the development of the subject premises.
IS THE DECISION TO MAKE OR NOT TO MAKE A CONTROLLED ACTIVITY ORDER REVIEWABLE
Section 407 of the PD Act provides, inter alia, that –
reviewable decision –
(a)means a decision mentioned in schedule 1, column 2; but
(b)does not include –
(i) a decision by the Minister under s 261 about whether considering a development application is in the public interest; or
(ii)a decision by the planning and land authority or Minister to refuse a development application under section 162 because the Minister decides under section 261 that considering the application is not in the public interest.
Schedule 1 “Reviewable decisions, eligible entities and interested entities” includes:
Item 41 – decision under s 351 to refuse to make a controlled activity order
It must be noted that s 410 of the PD Act provides that –
The validity of a decision made by the Minister under section 162 (Deciding development applications) may not be questioned in any legal proceedings other than a preceding begun not later than 28 days after the date of the decision.
With the Note:
A decision of the Minister under s 162 is not a reviewable decision (see s 407, def reviewal decision and sch 1).
Accordingly, the Tribunal could not review the Authority’s decision to approve the development of the subject premises; the Tribunal was required to review the Authority’s decision not to make a controlled activity order on the basis that development approval had been properly and lawfully granted.
On 12 June 2012 the respondent (then the applicant) lodged his “Statement of Facts and Contentions” with the Tribunal; on 3 July 2012 the Authority (then the respondent) lodged its “Statement of Facts and Contentions” with the Tribunal; and on 9 July 2012 the respondent lodged his “Statement in Reply” with the Tribunal.
Neither unexpectedly or unsurprisingly, the respondent contended that there was a “relationship” between Mr Shonk and Mr Collins, that Mr Collins was not “independent” and that the development application should not have been approved because the size of the development exceeded the “building envelope” and the development affected “the appeal and ambiance of the [respondent’s] property and is intimidating and unsympathetic, and therefore blights the [respondent’s] property”. However, strangely, the respondent stated that “the Development Approval is not in contention by the [respondent], merely that a controlled activity has occurred which affects the [respondent’s] property.”
The Authority contended that the respondent sought a review of the development approval (something which the tribunal could not do) in the guise of a review of the Authority’s refusal to make a controlled activity order and that a controlled activity order should not be made because the building works were within the tolerances allowed by the development approval.
THE HEARING OF THE APPLICATION BY THE TRIBUNAL
On 11 July 2012 respondent’s application to the Tribunal for a review of the Authority’s decision not to make a controlled activity order came on hearing by the Tribunal (Mr B Loftus and Ms G Trickett, both senior members). The respondent appeared for himself, without legal representation. Ms K Katavic, of Counsel, appeared for the Authority. The Tribunal, in addition to the documents lodged with it by the respondent and the Authority, received a statement of Mr S W Bond, inspector of the Authority, and it heard evidence from the respondent and Mr Bond.
On 12 July 2012 the Tribunal heard submissions from the respondent and Ms Katavic, after which it reserved its decision.
THE ORDERS THAT MAY BE MADE BY THE TRIBUNAL
Section 68 of the ACT Civil and Administrative Tribunal Act2008 (ACT) provides that –
68Review of decisions
(1)This section applies if the Tribunal reviews a decision by an entity.
(2)The Tribunal may exercise any function given by an Act to the entity for making the decision.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3)The Tribunal must, by order –
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and –
(i) make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the Tribunal.
THE ORDERS OF THE TRIBUNAL
On the 15 August 2012 the Tribunal handed down its decision making the following orders:
1.The decision under review is set aside and in lieu thereof it is ordered that amendments to the existing Development Application in relation to the building height be required by the Respondent taking account of the Tribunal’s findings set out in Paragraphs 88 and 89 of its reasons.
2.The remaining issues referred to in Paragraphs 88 and 89 of the Tribunal’s Reasons for the Decision are remitted to the Respondent for reconsideration in accordance with the Tribunal’s directions and recommendations pursuant to sub paragraph 68 (3) (c) (II) [sic] of the ACT Civil and Administrative Tribunal Act 2008.
The Tribunal, after considering the evidence and having regard to its own calculations, expressed the view at [88] of their Reasons for Decision that:
a.The Development Approval is inconsistent with the Territory Plan.
b.The building extends outside the building envelope.
c.The 50% Plot Ratio has been exceeded.
d.The side and rear setbacks (while within the 340mm building tolerances) exceeded those permitted because those tolerances may not be applied if they result in a GFA exceeding 50% Plot Ratio.
e.The building height exceeds the construction tolerance permitted by the approved plan.
f.The finished floor level is within that the 340mm building tolerance.
and it found at [89], as to each of the foregoing, that –
a.The Tribunal does not believe that it has the power to review the antecedent decision to approve the development (Canberra Tradesman’s Union Club & Ors v Minister of the Environmental Land and Planning & the Anor (1997) ACTSC 105).
b.The encroachments outside the building envelopes (as appears from the buildings plans) are not significant and do not appear to significantly diminish the Applicant[’]s amenity. No technical evidence was presented by the applicant to the contrary. Although this was his personal view, there was no expert for external evidence presented to corroborate it.
c.The fact that the Plot Ratio exceeds 50% has a flow on effect arising out of subparagraph d following.
d.Though the locations of the side and rear walls as constructed may have the effect of causing the Plot Ratio to exceed 50%, the Tribunal is of the view that, if the rectification of this involved demolition, such would be disproportionately excessive when compared to the relatively minor improvement of the Applicant’s amenity.
e.An amendment to the existing development application in relation to the building height is necessary and should be required.
f.No further comment is necessary.
AN APPLICATION FOR LEAVE TO APPEAL
On 12 September 2012 the Authority (as appellant/applicant) filed an Application in the Registry of the Supreme Court seeking leave to appeal against the orders of the Tribunal given on the 15 August 2012. This application was supported by the affidavit sworn on 12 September 2012 by Mr Leszek Stawski, the solicitor for the Authority.
Also on 12 September 2012 the Authority lodged a draft Notice of Appeal in the Registry of the Court. The grounds of appeal stated in the draft Notice of Appeal are:
The grounds of appeal are:
(a)Orders 1 and 2 are together beyond the powers conferred on the Tribunal in section 68(3) of the ACT Civil and Administrative Tribunal Act2008.
ORDER 1
(b)Order 1 is contrary to the power conferred on the Tribunal in section 68(2) of the ACT Civil and Administrative Tribunal Act 2008 by purportedly setting aside the decision under review and substituting the decision under review with a decision beyond the powers conferred on the original decision-maker under section 358 of the Planning and Development Act2007.
(c)Order 1 is uncertain and it cannot be determined which power under section 358(3) of the Planning and Development Act 2007 the Tribunal exercised.
ORDER 2
(d)Order 2 is firstly beyond the power conferred on the Tribunal and secondly contrary to the power in section 68(3) of the ACT Civil and Administrative TribunalAct 2008.
(e)The Tribunal erred in its decision by undertaking a review of the development approval process and an assessment of the development against the Territory Plan instead of confining itself to a review of whether it was correct and preferable to refuse to make a controlled activity order, which was the decision under the review.
(f)The Tribunal made its own findings of fact outside the evidence at the hearing and inconsistent with the evidence that was adduced at the hearing.
(g)The Tribunal did not give the appellant an opportunity to consider and comment on the findings made by the Tribunal after the conclusion of the hearing denying the appellant procedural fairness.
The orders are so uncertain that they are not a valid exercise of the Tribunal’s power.
and the orders sought by the draft Notice of Appeal are:
The orders sought are:
(a)The decision of the Tribunal dated 15 August 2012 is set aside.
(b)The decision of the appellant dated 27 March 2012 is confirmed.
(c)Costs.
(d)Any other orders the Court considers appropriate.
On the 2 October 2012 the respondent filed a Notice of Intention to Respond in the Registry in respect of the application of the Authority for leave to appeal against the order of the Tribunal. With his Notice, the respondent filed an affidavit sworn on 2 October 2012 by him in which he stated his reasons for opposing the granting of leave to appeal to the Authority.
On the 26 April 2013 the Authority filed its submission in support of its application for leave to appeal against the order of the Tribunal.
The primary submission of the Authority was that –
The Tribunal’s task was not a merit review of the development approval itself, but rather an examination of compliance with what was permitted to be developed. The appellant submits that planning considerations applied during the course of determining the development application were not relevant. It must be assumed by the Tribunal that the decision-maker in relation to that decision has had regard to those requirements, interpreted them and applied them to the development. This cannot be an avenue to review that which has already been decided. To do so was an exercise in reviewing an antecedent decision. The appellant submitted, and the Tribunal agreed, that it was prevented from doing so.
The appellant submits that the Tribunal was confined to referring to the development approval, comprising the Notice of Decision and endorsed plans, and determine [sic] whether the development, as constructed, was outside that approval. It was not relevant to consider whether the development was being undertaken other than in accordance with the Territory Plan. Again, that kind of inconsistency was not reviewable by the Tribunal and it could not make a finding to that effect.
However, notwithstanding the Tribunal’s agreement that it had no power to review an antecedent decision, the appellant submits that its findings suggest otherwise. It does so with particular reference to its findings as to the inconsistency with the Territory Plan at paragraph 88(a).
On 10 May 2013 the respondent filed his submissions in opposition to the Authority being granted leave to appeal against the order of the Tribunal.
The respondent submitted, after repeating his complaints about the development and the Authority’s approval of it, that the Tribunal’s orders were “Concise and explicit and without ambiguity”, in accordance with s 68(3)(i) and (ii) of the ACT Civil and Administrative Tribunal Act, and that the Authority’s arguments “on a question of law are not substantive, inconclusive and unconvincing”.
On 17 May 2013 the Authority filed its submissions in answer to the respondent’s submissions.
On 30 May 2013 the application of the Authority for leave to appeal against the order of the Tribunal came on for hearing before me. The Authority was represented by Ms K Katavic, of Counsel, and the respondent appeared for himself, without legal representation. After hearing submissions, I reserved my judgement.
BASIS FOR AN APPEAL TO THE SUPREME COURT
Section 86 of the ACT Civil and Administrative Act 2008 (ACT) provides that –
86Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from—
(a) a decision of the appeal tribunal; or
(b) if the appeal president dismissed the appeal under section 80— the original decision of the tribunal; or
(c) if the appeal president decides not to deal with the appeal under section 85—the original decision of the tribunal.
(2) A party to an application in relation to a review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005 may appeal to the Supreme Court on a question of law from the original decision of the tribunal.
(3) However, the appeal may be brought only with the Supreme Court’s leave.
As the decision of the Tribunal related to a review of a decision under the PD Act, s 86(2) applies to the appeal and the appeal to the Supreme Court must be based upon a question of law.
THE FIRST ISSUE
Although it acknowledged (see paragraph 1 of its findings referred to in [55] above) that it did not have “[t]he power to review the antecedent decision to approve the development”, I think that it is tolerably clear, from paragraphs 2, 3, 4 and 5 of its findings (see [55] above), and from the terms of its orders (also see [54] above), that the Tribunal did in fact review the decision to approve the development and that its orders required the Authority to reconsider its approval of the development. This issue is a question of law.
THE SECOND ISSUE
The Tribunal’s orders (see [54] above) are such that I think that neither is a proper exercise of the tribunal’s powers under s 68 of the ACT Civil and Administrative Act (see [53] above), as the orders do not:
(a) confirm the decision of the Authority not to make a controlled activity order; or
(b) vary the decision of the Authority not to make a controlled activity order; or
(c) set aside the decision of the Authority not to make a controlled activity order and, either:
(i) make a substitute decision; or
(ii) remit the matter that is subject of the decision (that is, in this case, an application for a controlled activity order) for reconsideration by the Authority in accordance with its direction or recommendation.
This issue is, also, a question of law.
THE THIRD ISSUE
In the exercise of its powers, ss 7, 8 and 26 of the ACT Civil and Administrative Act are relevant. These sections provide that –
7 Principles applying to Act
In exercising its functions under this Act, the tribunal must—
(a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b) observe natural justice and procedural fairness.
8 Rules of evidence
To remove any doubt, the tribunal need not comply with the rules of evidence applying in the ACT.
NoteThe tribunal may inform itself in any way it considers appropriate in the circumstances (see s 26).
26 Tribunal may inform itself
The tribunal may inform itself in any way it considers appropriate in the circumstances.
Examples
1 asking an assessor for expert advice on a matter
2 relying on previous experience in relation to the matter
Note 1The tribunal must observe natural justice and procedural fairness (see s 7).
Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
I think that it is fairly clear, from what was said during the hearing and its reasons for its decision, that the Tribunal relied upon its own expertise and opinion in rejecting the evidence of Mr Bond without giving him the opportunity of considering and answering the Tribunal’s findings, thus denying procedural fairness to the Authority. This is not to say that Mr Bond was right and the Tribunal was wrong, only to say that the Tribunal should have allowed time for Mr Bond to consider the intended findings of the Tribunal and then to comment upon them. This issue, like the others, is a question of law.
RESULT
Accordingly, I am satisfied that the Tribunal –
1. Exceeded its powers in reviewing the Authority’s decision to approve the subject development;
2. Failed to properly exercise its powers in relation to its review of the Authority’s decision not to make a controlled activity order; and
3. Denied procedure fairness to the Authority.
Further, I am satisfied, by the evidence of Mr Bond, that the development of the subject premises is within the tolerances allowed to the development by the approval. I agree with the Authority that a controlled activity order should not be made in relation to the development of the subject premises.
In the result –
1. I grant leave to the Authority to appeal against the orders of the Tribunal given on 15 August 2012;
2. I allow the Authority’s appeal against the said orders of the Tribunal;
3. I set aside the said orders of the Tribunal;
4. I confirm the decision of the Authority not to make a controlled activity order; and
5. I order that each party bear its own costs of the proceedings.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield
Associate:
Date: 28 February 2014
Counsel for the appellant: Ms K Katavic
Solicitor for the appellant: ACT Government Solicitor
Counsel for the respondent: the respondent appeared in person
Date of hearing: 30 May 2013
Date of judgment: 28 February 2014
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