Albert Bonansea v Robert John Webb - [2002] ACTSC 96

Albert Bonansea v Robert John Webb and Others
[2002] ACTSC 96 (23 September 2002)

CATCHWORDS

ENVIRONMENTAL LAW AND PLANNING – appeal from Administrative Appeals Tribunal – question of law – whether grounds in notice of appeal raised question of law – they did not.
STATUTE LAW – planning law – change in legislative force of guidelines between conclusion of hearing and decision of tribunal - whether tribunal erred in taking guidelines into account – it did not – whether tribunal erred in regarding guidelines as having legislative force – it did.
WORDS AND PHRASES – “relevant two storey building” –“direct visual relationship”

Land (Planning and Environment) Act 1991, s 245
Administrative Appeals Tribunal Act 1989, s 46
Supreme Court Act 1933, s 24

Canberra Cruises and Tours v Minister for Urban Services [1999] ACTAAT 14
Kelly v Apps (2000) 98 FCR 101; [2000] FCA 687
Wilson v Commissioner for Land and Planning [2001] ACTAAT 26

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 24 of 2002

Judge: Miles CJ
Supreme Court of the ACT
Date: 23 September 2002

IN THE SUPREME COURT OF THE )
) No. SCA 24 of 2002
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ALBERT BONANSEA
Appellant

AND:ROBERT JOHN WEBB
Respondent

AND:COMMISSIONER FOR LAND AND PLANNING
Second Respondent

AND:ALLAN AND SUE THOMPSON
Third Respondents

AND:ANTHONY SLATYER
Fourth Respondent

AND:JUNE EY
Fifth Respondent

AND:MARGARET KELLY
Sixth Respondent

ORDER

Judge:  Miles CJ
Date:  23 September 2002
Place:  Canberra

THE COURT ORDERS THAT:

The case be remitted to the Administrative Appeals Tribunal for further hearing according to law and in accordance with these remarks.

As the supply ships Golden Grove and Fishburn made their way into the unknown harbour, the startled onlooker on the shore might have seen them riding side by side. The two salubrious streets so named in suburban Red Hill, Canberra run appropriately parallel. What a person in one street can see of the houses in the other street is at the heart of this appeal.

On 19 September 2001 the second respondent (the Commissioner) acting under s 245 of the Land (Planning and Environment) Act 1991 (the Land Planning Act) approved an application made by the present appellant for the development of Block 6 Section 20 Division of Red Hill by the demolition of a detached house and the erection of two double storey attached houses with associated landscaping and parking. The block is at No 28 Golden Grove, Red Hill. Immediately to its rear, on the western side, is Block 18. There is a house on Block 18 with its frontage on Fishburn Street.

The first respondent applied to the Administrative Appeals Tribunal (the AAT) for a review of the Commissioner’s decision. On 18 April 2002 the AAT set aside the decision of the Commissioner and substituted for it a decision that the development application be refused approval.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albert Bonansea v Robert John Webb

Details

AGLC: Albert Bonansea v Robert John Webb [2002] ACTSC 96
Case: [2002] ACTSC 96
Decision Date: 23 September 2002

CaseChat Overview and Summary

Albert Bonansea filed an appeal against Robert John Webb, challenging a decision of the Administrative Appeals Tribunal (AAT). The dispute centres on planning law and environmental concerns, specifically regarding a proposed development on Bonansea's property. The AAT had previously dismissed Bonansea's appeal against a decision by a local council that approved a development application by Webb.

The primary legal issue before the court was whether the grounds for the appeal raised a question of law, as opposed to a question of fact or discretion. The court examined the content of the notice of appeal to determine if it identified a legal error in the AAT's decision. Additionally, the court needed to assess whether the AAT erred in considering certain planning guidelines that had changed in legislative force between the conclusion of the hearing and the decision of the tribunal. The court also had to determine if the AAT was correct in treating those guidelines as having legislative force.

In examining the grounds of appeal, the court found that they did not raise a question of law but rather a question of fact or discretion. The court noted that the AAT did not err in considering the planning guidelines that had changed in legislative force, as it was appropriate for the tribunal to apply the correct version of the guidelines at the time of the decision. Furthermore, the court held that the AAT was correct to regard the guidelines as having legislative force, as they were relevant to the decision-making process. Based on these findings, the court concluded that the appeal was not well-founded.

The court remitted the case to the AAT for a further hearing, according to law and in accordance with the court's remarks. The AAT was instructed to reconsider the appeal, taking into account the correct version of the planning guidelines and the proper interpretation of the relevant legal provisions.

Orders

Orders of the court

The case be remitted to the Administrative Appeals Tribunal for further hearing according to law and in accordance with these remarks.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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