Axell v AAI Ltd ACN 005 297 807 T/As GIO (Motor Accident Injuries) - [2025] ACAT 51

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COLLETT & ORS v ACT PLANNING AND LAND AUTHORITY (No 2) (Administrative Review) [2025] ACAT 51

AT 101/2023

Catchwords: ADMINISTRATIVE REVIEW – review of a decision approve, subject to conditions, a development proposal for a crematorium adjacent to the Callum Brae Nature Reserve – whether development proposal should have been assessed in the impact track instead of the merit track – impact of the development on landscape quality of the locality considered – impact of the development on fragmentation of Swift Parrot habitat considered – whether the land is suitable for the development or use authorised by the varied lease – whether development approval should be refused on discretionary grounds under s 120(a) and/or (h) – development approved subject to varied conditions

Legislation cited: Cemetries and Crematoria Act 2020, s 49
Environmental Protection and Biodiversity Conservation Act 1999 (Cth), ss 18, 18A, 75(1)
Nature Conservation Act 2014
Planning and Development Act 2007 (repealed), ss 113, 119, 120(a) and (, 123, 128, 144, 315, 316, 317, schedule 3, schedule 4 part 4.3

Subordinate

Legislation cited: Territory Plan 2008
Jerrabomberra District Map and Code (NI2008-27), C2
Lease Variation General Code, C1
NUZ1 – Broadacre Zone Development Table

Cases cited:Baptist Community Services v ACT Planning and Land Authority [2015] ACTCA 3
Collett v ACT Planning and Land Authority [2024] ACAT 39
Ginninderra Falls Association v ACT Planning and Land Authority [2017] ACAT 108

Tribunal:Senior Member M Orlov (presiding)
Senior Member A Pegrum

Date of Orders:  30 June 2025
Date of Reasons for Decision:      17 July 2025
Date of Publication:  17 July 2025

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 101/2023

BETWEEN:

PAMELA COLLETT
First Applicant

MARJA ROUSE
Second Applicant

DIETLIND SOMMER
Third Applicant

FRANCE MEYER
Fourth Applicant

JAMES LINDSAY
Fifth Applicant

INVOCARE AUSTRALIA PTY LTD ACN 060 060 031
First Party Joined

RED BOX CONTRACTORS PTY LTD
Second Party Joined

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL:Senior Member M Orlov (presiding)
Senior Member A Pegrum

DATE:30 June 2025

ORDER

The Tribunal orders:

The decision to approve, subject to conditions, development application number 202138789/s144C/s144E/s144G is varied by:
(a)   substituting for the approved variation to the Crown lease:
·     variation to the Crown lease to:
o   replace the existing purpose clause uses with cemetery (limited to crematorium and memorial park) and subsidiary thereto a caretaker’s residence;
o   replace the car parking requirement to provide for a standard acceptable to the authority; and
o   remove the restrictions associated with the existing uses and assignment.
(b)   substituting for condition 5(a)(iv) of the conditions of approval:
(iv)      minor changes to the development providing for:
·     retention of trees TR4, TR5, TR20, TR21, TR25, TR26, TR75, TR76, TR88, TR99 and TR100;
·     retention of tree TR65 unless the applicant demonstrates to the satisfaction of the Authority that removal is unavoidable;
·     realignment of the service road adjacent to the south-western boundary to provide for retention of trees TR28, TR29, TR30, TR31, TR32, TR33, TR35, TR36, TR37 and TR47 unless the applicant demonstrates to the satisfaction of the Authority that there is no realistic alternative to removal;
·     retention of existing Eucalyptus blakelyi and Eucalyptus melliodora trees located in soft landscaped areas within the development footprint unless the applicant demonstrates to the satisfaction of the Authority that there is no realistic alternative to removal, or removal is adequately compensated by additional or substitute planting (whether within or outside the development footprint) to prevent fragmentation of Swift parrot habitat;
·     screen planting of suitable tree and plant species, consistent with the existing woodland character of the site and the adjacent Callum Brae Nature Reserve, along the boundary of the site extending from Narrabundah Lane to tree TR35 to minimise the visual impact of the development on the landscape quality of the locality.
Note: Plans (and any supporting information) should identify the proposed response including any plan updates. Emphasis should be given to measures to prevent fragmentation of Swift parrot habitat in the immediate and short term (1 to 5 years) including by preserving existing trees that may not presently be suitable as Swift parrot foraging habitat but may become suitable as they mature and by planting advanced specimens where possible.
The applicant’s response to this condition will be referred to the Conservator to advise the Authority.
Overflow parking spaces may be adjusted (including reducing potential impacts to identified trees such as additional permeable surfaces in relevant tree protection zone(s)).
(c)   amending condition 5(c)(a.) of the conditions of approval by deleting the words “cemetery and” so that it says:
a.    general dealing with crematorium uses;

..………………………..
Senior Member M Orlov
On behalf of the Tribunal

REASONS FOR DECISION

Introduction

This is an application for review of a decision to approve, subject to conditions, a proposal to construct a new crematorium and associated landscaping and other works on Block 1 Section 3 Symonston (the site) and to vary the Crown lease as necessary to authorise the development and proposed used. The site is located next to the Callum Brae Nature Reserve (Callum Brae), located on the lower eastern slopes of Mount Mugga.
The evidence finished on 23 May 2024 and the Tribunal commenced hearing submissions on 24 May 2024. The hearing was adjourned part-heard while the matter was referred to the Commonwealth Department of Climate Change, Energy, the Environment and Water (the Department) for reconsideration of an earlier controlled action decision made on 26 May 2020, in light of new evidence about the potential impact of the development on the Swift Parrot, which is listed as a ‘critically endangered’ species under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Nature Conservation Act 2014. The background to the referral is explained in Collett v ACT Planning and Land Authority [2024] ACAT 39.
On 20 March 2025, the Department gave notice confirming the original decision that the proposed action is not a controlled action in relation to sections 18 and 18A under section 75(1) of the EPBC Act. Section 18(2) prohibits a person from taking action that has, or will have, a significant impact on a listed threatened species included in the critically endangered category. Section 18A makes taking such an action a strict liability offence.
The decision relates only to the specific matters protected under chapter 2 of the EPBC Act. The reasons for the decision have not been made available to the Tribunal. While it is relevant the development has been determined not to be a controlled action, the Tribunal is not relieved of the task of deciding whether the development proposal meets the requirement for development approval to be given under sections 119 and 120 of the Planning and Development Act 2007 (repealed) (Planning Act).
The application was relisted for hearing of final submissions on 26 June 2025. By then many of the grounds on which the applicants originally said development approval should be refused were abandoned or significantly narrowed.
The following issues remained for decision:
(a)first, whether the development proposal should have been assessed in the impact track instead of the merit track;
(b)second, whether the proposed lease variation does not achieve compliance with criterion C1(i) of the Lease Variation General Code (LVGC) because the proposed use of private land for the purpose of a privately operated “cemetery” is inconsistent with the Planning Act, the Territory Plan and the Cemetries and Crematoria Act 2020;
(c)third, whether the proposed lease variation does not achieve compliance with criterion C1(ii) of the LVGC, because the land to which the lease applies is not suitable for the development or use authorised by the varied lease;
(d)fourth, whether approval should be refused under section 120(a) because the development proposal does not comply with the NUZ1 Broadacre Zone objectives –
(i)to make provision for activities requiring clearance zones or protection from conflicting development; and
(ii)to ensure that development does not adversely impact or visually intrude on the landscape and environmental quality of the locality;
(e)fifth, whether approval should be refused under section 120(h) because of the nature, extent and significance of probable environmental impacts on remnant patches of Yellow Box – Blakely’s Red Gum woodland, Swift Parrots and Small Ant Blue Butterflies.
After a short adjournment at the end of the hearing, the Tribunal informed the parties it was satisfied development approval should be given, subject to varying the conditions of approval to clarify the limits on the permitted use as a ‘cemetery’, minimise the visual impact of the development on the landscape quality of the locality, including Callum Brae and prevent fragmentation of Swift Parrot habitat, particularly in next 1 to 5 years.
After considering further submissions in relation to the appropriate form of orders, the Tribunal made final orders on 30 June 2025.
The Tribunal’s reasons for decision follow.

Impact of the development on the landscape quality of the locality

The site has an area of some 9.7 hectares and is located at the corner of Mugga Lane to the northwest and Narrabundah Lane to the northeast. The southern boundary adjoins the Callum Brae Nature Reserve. The Mugga Mugga Nature Reserve adjoins Mugga Lane to the west.[1] Both reserves are connected to a wider network of reserves within Canberra Nature Park (Red Hill Nature Reserve, Issacs Ridge Nature Reserve and Wanniassa Hill Nature Reserve).[2]
[1] T-docs p 1070; Ecological Impact Assessment; Fig 1 Locality Plan
[2] T-docs p 429; Capital Ecology Ecological Impact Assessment, Appendix D. EPBC Act Significant Impact Criteria Assessment
The predominant landscape character and visual quality of the locality is of extensive native bushland, including remnant box-gum woodland with an understorey of grassland and native shrubbery. The previous use of the development site as a zoo (established in the 1980s and cleared of buildings and facilities in 2003) degraded some of the landscape quality of the site with “numerous planted non-local eucalyptus…and…highly disturbed ground storey across much of the site”.[3] Box-gum woodland and mature remnant eucalyptus trees remain particularly on areas generally not impacted by the zoo.
[3] T-docs p 386; Capital Ecology Ecological Impact Assessment, 3.1 vegetation
The proposed development is relatively low density with a restrained footprint relative to the site area. The footprint generally occupies the southern central part of the site, appropriately constrained by potential archaeological deposit areas of significant heritage value and retaining a deep band (some 100 metres) of remnant box gum woodland adjacent to Narrabundah Lane and Mugga Lane in the northern corner of the site.[4]
[4] T-docs p 408 (DA Capital Ecology vegetation mapping); p 536 (DA general arrangement plan); p 547 (DA Site Master Plan)
The proposed development includes two separate buildings (the chapel with crematorium and the administration building with reflection lounge), access roads and carparks, memorial gardens with reflection pond, a habitat pond (the existing dam), landscaping, planted native species and a walking track connecting to Callum Brae. The proposed buildings are of a simple low-rise appearance with some skillion roofs rising to approximately six metres above ground. Materials are generally lightweight with metal cladding and some masonry walls. The overall design presents as unobtrusive buildings separated by landscaped spaces.
Visitor access to the development is off Narrabundah Lane, with the primary service access from Mugga Lane. For most of its length the service road to the crematorium runs within the 16 metre building setback from the Callum Brae south boundary.
The Tribunal viewed the site on 21 May 2024. The Tribunal observed the native bush landscape quality of the site presented as contiguous to the locality of Callum Brae at the southern boundary. The Tribunal also noted that notwithstanding the overarching bush landscape character of the locality, the landscape quality of the site had been degraded by its former use as a zoo.
It was common ground the development will have some impact on the landscape quality of the site and, by extension, on the landscape quality of the locality. The applicants also expressed concerns about a loss of connectivity with adjacent nature corridors. However, the Tribunal accepts the ecological advice that the proposed plantings of indigenous species appropriate to the site and environs have been selected to “enhance the ecological values of the site and help to integrate the sites ecological values with the adjoining and nearby Canberra Nature Park Reserves”.[5] The Tribunal also noted that the EPBC protected box-gum woodland on the site was referred previously to the Department for consideration under the EPBC Act, resulting in a determination that the development is not a controlled action.[6]
[5] T-docs p 1063; Capital Ecology, Ecological Impact Assessment, Landscaping
[6] T-docs p 103; Notice of Decision
The Tribunal is satisfied the impact on landscape quality on the whole will be negligible and that the proposed development footprint, built form scale and massing, tree retention and planting strategies will enable continuity of and integration with the landscape character and quality of the locality.
This aligns broadly with the Notice of Decision (NoD) which states:
The limited development footprint, with significant areas of undisturbed or natural parts of the site in particular close to the two frontages, are considered consistent with objective (a). The landscape will in particular to the road frontages provide a substantially rural landscape proportionate to the surrounds including proximity to the urban area … While elements of the development will be visible, the low density and scale are not inconsistent with this objective [and] while development of the site will have some changes, any impacts are not considered to be adverse or unreasonable… this is not from a position of nil impacts … some impacts will occur. This proposal is however of a scale which is considered reasonable for the site including consideration of the zone objectives. [7]
[7] T-docs pp 99-100; DA NoD Reasons for the decision
However, the Tribunal sees the proposed development treatment of the southern boundary with Callum Brae differently. The Tribunal considers the minimal visual buffer between the Narrabundah Lane visitor access road and carpark, the proximity of the crematorium building to the boundary with Callum Brae and the service road within the boundary setback, with associated removal of several mature trees (including a remnant) will detract materially from the landscape quality of the locale, particularly the northern outlook from Callum Brae.
To this extent the Tribunal agrees with the applicants’ concerns that this part of the development is likely to “adversely impact and visually intrude on the landscape and environmental quality of the locality”. [8]
[8] Applicant’s Joint Revised Application, Section 2 Table 3 (c)
To ameliorate this, the Tribunal has imposed a condition requiring screen planting of trees and plant species consistent with the existing woodland character along the boundary of the site, extending from Narrabundah Lane to tree TR35 – which is west of the crematorium building – as well as realignment of the service road and retention of several trees slated for removal. The Tribunal considers this will adequately protect the landscape quality of the locality.

Impact of the development on fragmentation of Swift Parrot habitat

The Tribunal heard substantial evidence from all parties and their experts as to whether the proposed development would have, or is likely to have, a significant impact on the Swift Parrot. The Minister with responsibility under the EPBC Act previously determined the development proposal was not a controlled action because it was unlikely to have any significant impacts on any protected matters, including Swift Parrots. The Minister’s determination informed the original assessment and subsequent approval of the development application.
Swift Parrots are migratory, breed in Tasmania and migrate to south-eastern Australia, foraging in autumn and winter in forest and woodlands, including in the ACT.
Key issues explored in the evidence included the extent to which the conditions of approval was likely to be effective in preserving trees suitable for foraging; whether planting trees to compensate for the removal of existing trees would ensure fragmentation of habitat did not occur;[9] the significance of recorded sightings of large numbers of Swift Parrots (a flock of 60 birds) at the location in May 2021;[10] the extent to which the Conservator, in providing advice in relation to the development application, was aware of updated scientific information regarding Swift Parrot sitings in the locality;[11] consideration of the National Recovery Plan for Swift Parrots (published April 2024); whether the EPBC referral drew specific attention to the Swift Parrot as a ‘critically endangered’ species accessing the site for foraging;[12] and whether Capital Ecology’s recommendations for box gum retention and removal and compensatory planting adequately considered potential fragmentation of Swift Parrot habitat.[13]
[9] T-docs p 91; NoD Conditions (5)(a)(iv)
[10] T-docs p 275; Margaret Blakers’ representation; Transcript of proceedings on 21 May 2024 pp 45.45-46.5, p 55.15-25; Transcript of proceedings on 2 May 2024, p 14.20-40, p 27.25-45
[11] Transcript of proceedings on 4 March 2024, pp 60 - 62
[12] T-docs pp 1097-1114 (EPBC referral); Transcript of proceedings on 4 March 2024, p 44.30-45, p 45.45, p 47.35-40, p 50.10
[13] Transcript of proceedings on 4 March 2024, p 65.15-35
In considering these issues, the Tribunal found the evidence of Professor Robert Heinsohn and Dr Deborah Saunders, both respected experts on Swift Parrots, to be compelling. Their evidence generally related to the endangerment of the species, material current sightings of Swift Parrots on and near the site, and the importance of preserving the integrity of foraging habitat to ensure the best chance of survival of the species.[14]
[14] Transcript of proceedings on 21 May 2024, p 21.15-35; p 22.5-10; pp 26.35-27.5
Notwithstanding the Commonwealth delegate confirmed, on 20 March 2025, that the proposed action is not a controlled action under the EPBC Act, the Tribunal considers the potential fragmentation of Swift Parrot habitat associated with the development, removal of mature trees and the growth times for compensatory replacement trees, cannot be dismissed considering the evidence of Professor Heinsohn and Dr Saunders regarding the risk of fragmentation of Swift Parrot habitat, particularly in the immediate to short term (one to five years).
Of note, the evidence established Swift Parrots prefer to forage in large, mature trees and that the site currently supports species of eucalyptus foraging habitat trees (including Eucalyptus blakelyi and Eucalyptus melliodora).
The Conservator’s advice in connection with the initial assessment of the development application, stated:
Given its relatively small area and lack of swift parrot sightings directly on the site, the development overall is unlikely to significantly impact on the swift parrot. However, the loss of 15 important foraging trees, of substantial age and size, has the potential to reduce and fragment existing swift parrot habitat and should be avoided if at all possible, or compensated otherwise.[15]
[15] T-docs p 106; DA NoD, Entity Advice and Requirements ‘3 Conservator’

In response, the conditions of approval included condition 5(a)(iv) providing for:
minor changes to the approved development to preserve some or all of the (15) trees identified by the Conservator used for foraging by the Swift Parrot - OR if unavoidable…information be provided demonstrating that removal of the trees be compensated for to ensure that fragmentation of the Swift parrot habitat does not occur…The applicant’s response to this condition will be referred to the Conservator to advise the Authority…overflow parking spaces may be adjusted (including reducing potential impacts to identified trees such as additional permeable surfaces in relevant tree protection zone(s).[16]
[16] T-docs p 91; Condition 5(a)(iv)
The Tribunal is not satisfied this condition gives sufficient certainty to habitat outcome – particularly mitigating fragmentation of habitat while replacement trees grow to a sufficient level of maturity to provide suitable habitat, noting the parrot’s preference for foraging in mature trees. In that context, Dr Saunders said:
The species needs mature trees now to be retained, and it needs younger trees to move forward in the future … so it’s really important for the long-term survival of a species that it has habitat right now, so that it can persist while other habitats are growing up.[17]
[17] Transcript of proceedings on 22 March 2024, p 28.30-45
The Tribunal also had regard to the evidence of Robert Speirs of Capital Ecology. Mr Speirs prepared the ecological impact assessment reports largely relied upon in the assessment of the development application.^[18] Mr Speirs’ evidence was valuable in clarifying how the Swift Parrot and its foraging habitat had been considered in the proposed development, notably in relation to the retention or removal of box-gum woodland and new plantings.
[18] T-docs pp 380-446 (report dated 21 December 2022) and pp 1048- 1096 (report dated 16 December 2019)
Mr Speirs noted that many remnant trees would remain on the site and opined that “in the context of the larger environment we’re working in being that we’ve got Callum Brae next door, and …a lot of box gum woodland to the south … and Mugga Mugga …it’s come to a stage where it’s a fairly minor loss of those habitat trees”. However, the Tribunal considers Mr Spiers’ evidence that the long-term restoration of habitat would take more than 20 years to be particularly significant in the context of assessing probable loss of habitat in the immediate to short term.[19]
[19] Transcript of proceedings on 22 March 2024, p 51.5-20 and p 52.10-40
The Tribunal recognises the proponent has gone to considerable trouble to contain the development footprint, the associated service infrastructure requirements related to the retention of trees, the restoration intentions to replant with box gum woodland post vegetation clearance and tree removal, and the identification of potential Swift Parrot foraging habitat to be removed or retained within the footprint as presented by Mr Speirs.[20]
[20] Exhibit PJ 6 Figure 3. Capital Ecology 21 May 2024
However, the Tribunal is not persuaded sufficient steps have been taken to limit fragmentation of Swift Parrot habitat in the immediate to short term. Long term restoration of habitat may turn out to be of little value if fragmentation of habitat occurs in the immediate to short term, when Swift Parrots are likely to face the most challenging conditions according to the evidence of Professor Heinsohn and Dr Saunders.
The Tribunal considers that several mature trees nominated for removal are important to preserving foraging habitat and should be retained. The Tribunal also considers that minor changes to the development to preserve existing trees that are likely to reach maturity and provide suitable habitat in a shorter timeframe than newly planted trees and a requirement to plant advanced specimens of compensatory trees, is appropriate to ensure fragmentation of habitat does not occur, particularly in the immediate to short term.
Accordingly, the Tribunal has substituted in place of condition 5(a)(iv) a new condition requiring retention of trees supportive of Swift Parrot habitat and retention (to the extent feasible) of Eucalyptus blakelyi and Eucalyptus melliodora within the development footprint, or the provision of additional or substitute planting to prevent fragmentation of Swift Parrot habitat.

Should the development proposal have been assessed in the impact track instead of the merit track?

The applicants submitted the development application should be refused because the development proposal was assessed incorrectly in the merit track, instead of the impact track.
The Territory Plan includes development tables for each zone, which set out the uses to which land may be put, identify the codes against which a development proposal must be assessed and the assessment track in which a proposal must be assessed.
A proposal that the applicable development table says is assessable in the merit track may nevertheless be assessable in the impact track if, relevantly, the proposal is of a kind mentioned in schedule 4 of the Planning Act.[21]
[21] Planning Act s 123(b)
A development proposal must not be approved in the impact track unless an environmental impact statement (EIS) has been completed or an EIS exemption is in force for the development proposal and the development is consistent with the requirements specified in section 128(1)(b).
Part 4.3 of schedule 4 identifies certain development proposals requiring an EIS. These include, relevantly, a proposal that is likely to have a significant adverse environmental impact on a critically endangered, endangered or vulnerable species; a proposal involving the clearing of more than 0.5ha of native vegetation in a native vegetation area; and a proposal that is likely to have a significant adverse impact on the heritage significance of a place or object registered under the Heritage Act 2004. In the first two cases, the proposal is assessable in the impact track unless the Conservator provides an environmental significance opinion (ESO) indicating that the proposal is not likely to have a significant adverse environmental impact. In the latter case, the proposal is assessable in the impact track unless the Heritage Council provides an ESO that the proposal is not likely to have a significant adverse impact on matters of heritage significance.
Section 113(2) of the Planning Act provides that the determination of which assessment track applies to a development proposal is made by reference to circumstances when the application is made.
The site is in the NUZI – Broadacre Zone. The relevant development table is the NUZI – Broadacre Zone Development Table. This stipulates that the minimum assessment track for a development proposal for a “cemetery” and a “lease variation” is the merit track.
The development application was lodged on 2 September 2021.[22] ESO NI2020-527, in which the Conservator indicated the proposal is not likely to have a significant adverse environmental impact and ESO NI2020-578, in which the Heritage Council indicated the proposal is not likely to have a significant adverse impact on matters of heritage significance, were in force when the development application was lodged.
[22] T-docs pp 1391-2. The development application is taken to be lodged when the application fee is paid. The application was lodged on 23 August 2021 but the application fee was paid on 2 September 2021.
This has two consequences. First, an EIS was not required. Second, applying section 113(2), the proposal was assessable in the merit track.
The applicants submitted the proposal should have been assessed in the impact track for two reasons.
First, amended development application 144C was lodged on 6 April 2022, by which time both ESOs had expired. Also, the most recent amended development application 144G was lodged on 3 May 2023, without an ESO from the Conservator being in force. Although an ESO was signed on 24 April 2023, it was not registered as a notifiable instrument until 11 May 2023, with an effective date of 12 May 2023. The applicants submitted that, in the absence of an active ESO, the amended development applications should have been lodged in the impact track.
Second, the applicants submitted the Conservator, in issuing the ESO, failed to acknowledge the status of the Swift Parrot as critically endangered and their assessment of the impact of fragmentation on flora and fauna failed to take into account expansion of the Boral Quarry that will require removal of more EPBC protected woodland on the southern side of the development site.
The first submission is answered by section 113(2). The determination of the applicable assessment track is made by reference to circumstances when the application is made. An amended development application is not a new application for the purposes of section113(2).
Section 144 provides that ACTPLA may, if asked by the proponent, amend a development application provided, among other things, ACTPLA is satisfied the amended development will be substantially the same as the development applied for originally and the assessment track for the application will not change if the application is amended.[23] If an assessment track applies to a development proposal, the proposal is in that assessment track and that track must be followed in assessing the development application for the proposal.[24] A development application amended under section 144 remains in the original assessment track.
[23] Planning Act s 144(2)(a)(ii)
[24] Ibid. s 113(4)
The second submission raises an issue considered in Ginninderra Falls Association v ACTPLA [2017] ACAT 108, which concerned a development proposal submitted in the merit track. The applicant in that case submitted the proposal should have been assessed in the impact track because it was likely to have a significant adverse environmental impact on a “vulnerable” species – the Little Eagle. In rejecting the submissions, the tribunal said at [102]-[104]:
What is clear, however, is that section 113(2) does not permit reference to facts or circumstances arising after the application was made. We have also concluded that the circumstances to be considered must be of a nature or kind that the person or entity making the development application knew or should reasonably have known at the time the application was made.
We recognise that in some cases new evidence might come to light after a development application has been made that (arguably) shows that the application should be assessed in the impact track. Section 113(3) accommodates that possibility by enabling Ministerial declarations to be made under sections 124 or 125 of the P & D Act. In our view, when section 113 is read as a whole, that pathway for addressing circumstances arising after the event (meaning after the development application was made) confirms that ACTPLA (and the Tribunal on review) cannot consider such circumstances when considering whether a development application has been assessed in a track other than the track for the proposal.
Applying these principles to this case, and assuming that there is no issue that the Little Eagle and the Scarlet Robin are “vulnerable species” for the purposes of Schedule 4, the question will be whether Riverview and/or its agent/s who applied for approval to undertake the development proposed knew or should reasonably have known at the time the development application was made that the proposal “is likely to have a significant adverse environmental impact” on either or both of those species.
At [106] the tribunal said:
What would be relevant is evidence Riverview (and/or ACTPLA) had “when the application [was] made” going to Riverview’s and ACTPLA’s understanding about whether the proposal “is likely to have a significant adverse environmental impact” on either or both of those species.
The proponents submitted, correctly in the Tribunal’s opinion, that there is no evidence they or ACTPLA knew or should have known the proposal was likely to have a significant adverse impact on the Swift Parrot (assuming that fact is established) at the time the development application was submitted. Further, with regard to the alleged future impact on Yellow Box – Blakely’s Red Gum woodland, the proponents had obtained a determination on 26 May 2020 that the proposal did not constitute a ‘controlled action’ under the EPBC Act.
Accordingly, this ground of challenge fails.

Is compliance with C1(i) of the LVGC achieved?

The applicant submitted the proposal to vary the permitted use of the Crown lease to include “cemetery” does not comply with criterion C1(i) of the LVGC because such use is inconsistent with the Planning Act, the Territory Plan and the Cemeteries and Crematoria Act 2020.
C1(i) provides that a lease is varied only where “the varied lease is consistent with the Territory Plan including all relevant codes”.
The argument was abandoned previously but revived on the final day of the hearing.
The applicants’ submission treads the following path.
Section 315 of the Planning Act provides that public land may be reserved in the Territory Plan for the purposes of, among other things, a cemetery or burial ground.[25]
[25] Ibid. s 315(f)
Section 316 provides that an area of public land must be managed in accordance with the management objectives applying to the area and the public land management plan for the area.
Section 317(1) states that the management objectives for an area of public land reserved for a particular purpose are the management objectives stated in schedule 3 in relation to the areas of land reserved for that purpose.
Schedule 3 provides that the management objectives for an area of public land reserved for a cemetery or burial ground are “to provide for the internment or cremation of human remains and the internment of the ashes of human remains”.
According to the argument, the Planning Act “that guides the Territory Plan 2008 only associates the term “cemetery” to public land”. Presumably, the applicants contend that only public land can be used for a “cemetery”.
The argument then pivots to the meaning of “cemetery” and “crematorium” in the Cemeteries and Crematoria Act 2020. The dictionary of the Act defines “cemetery” to mean a place where human remains are buried, cremated remains are interred and deceased people are memorialised and operated by the ‘authority’ – meaning the Cemeteries and Crematoria Authority established under section 113 of the Act. “Crematorium” is defined to mean a place where human remains are cremated, cremated remains are interred and deceased people are memorialised and operated by a ‘licensee’– being a person who has a licence to operate a facility under section 49 of the Act or the authority.
The applicants submitted the proposed lease variation would allow a “cemetery” to be located on private land – contrary to the Planning Act – and a private enterprise to operate a “cemetery” – contrary to the Cemeteries and Crematoria Act 2020.
The submission must be rejected.
C1(i) is achieved if the proposal is consistent with the Territory Plan including all relevant codes. The Cemetries and Crematoria Act 2020 regulates who may operate a cemetery or crematorium. It has nothing to do with planning issues, including the permissible use of private land under the Territory Plan.
The provisions of the Planning Act to which the applicants refer concern the use of public land. They do not speak to the permissible use of private land.
“Cemetery” is defined in Territory Plan to mean “the use of land for the internment or the cremation of the dead including any funeral parlour or chapel erected on such land and used in connection with the cemetery”. “Cemetery” is a permitted use under the NUZ1 – Broadacre Zone Development Table.
There is nothing in the Planning Act or the Territory Plan that precludes the use of private land for the cremation of the dead, including any funeral parlour or chapel erected on the land and used in that connection.
This ground of challenge fails.
The development proposal does not provide for the land to be used for internment of the dead, although this falls within the Territory Plan definition of “cemetery”. The NoD states that approval of the lease variation to permit use of the land as a “cemetery” does not extend to its use for internment of the dead and if such use is proposed in the future, further development approval would be required.[26]
[26] T-docs p 35
The Tribunal considers it is appropriate to make this pellucidly clear by inserting the words “(limited to crematorium and memorial park)” after “cemetery” in the description of the approved variation to the Crown lease.

Is compliance with C1(ii) of the LVGC achieved?

The applicants submitted the proposed lease variation does not comply with criterion C1(ii) of the LVGC because the site is not suitable for use as a “cemetery”, even if the permitted use is limited to cremation.
C1(ii) provides that a lease is varied only where “the land to which the lease applies is suitable for the development or use authorised by the varied lease”.
In this case the “development or use authorised by the varied lease” is described in the following terms:
…approve subject to conditions the proposal for:
· …
· variation of the Crown lease to:
oreplace the existing purpose clause uses with cemetery and subsidiary thereto a caretaker’s residence;
oreplace the car parking requirement to provide for a standard acceptable to the authority; and
oremove the restrictions associated with the existing uses and assignment,
at Block 1 Section 3 SYMONSTON, in accordance with the plans, drawings and other documentation approved and endorsed as forming part of this approval.
The varied lease does not merely authorise a change in the permitted use of the land to “cemetery”. It permits the land to be used for that purpose only “in accordance with the plans, drawings and other documentation approved and endorsed as forming part of this approval”. One of the requirements is to prepare an ongoing management plan, which is to be registered against the tile. A condition of approval is that, once constructed, the development is managed and operated in accordance with the approved management plan.[27] The evident purpose of these requirements is to ensure that use of the land for the purpose of a ”cemetery” is constrained by the plans, drawings and other documents forming part of the development approval, including the ongoing management plan.
[27] T-docs p 26
The issue raised by C1(ii) is whether the land is suitable for that specific use.
The main reason the applicants submit the land is not suitable is because:
The proposed development will compromise connectivity between Red Hill, Mount Mugga, Callum Brae, Issacs Ridge and Wanniassa Hills Nature Reserve as an estimate of 100 trees will be removed in Stage 1 of the development and more in Stage 2. The subsequent loss of tree canopy will contribute to the deterioration of the adjacent Reserve as part of the cumulative impacts inflicted on the area. This renders the block unsuitable for the proposed development.
The submission has some force. However, the Tribunal considers the applicants’ concerns are adequately addressed by varying condition 5(a)(iv) of the conditions of consent in the manner discussed earlier. The Tribunal is satisfied that with those changes compliance with C1(ii) is achieved.

Should development approval be refused on discretionary grounds under s 120?

Section 120 provides that, in deciding a development application for a development proposal in the merit track, the decision-maker must consider a number of discretionary factors including, relevantly, the zone objectives and the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
Section 120(a) – zone objectives
The NUZ1 – Broadacre Zone objectives are:
(a)     make provision in a predominantly rural landscape setting for a range of uses which require larger sites and/or a location outside urban areas;
(b)     make provision for activities requiring clearance zones or protection from conflicting development;
(c)     ensure that development does not adversely impact or visually intrude on the landscape and environmental quality of the locality; and
(e)     ensure, where appropriate, that development and the use of land does not undermine the future use of land which may be required for urban and other purposes.

In their closing submissions, the applicants focussed on compliance with objectives (b) and (c).
Zone objective (b)
The applicants submitted objective (b) is not met for two reasons.
First, the applicants submitted criterion C2 of the Jerrabomberra District Map and Code (NI2008-27) is not met because the development is located within the 1km buffer zone for the approved expansion of Boral Quarry. C2 applies to area RC1 shown on the Jerrabomberra District Precinct Map and states:
The Mugga porphyry zone porphyry zone and the existing quarry operations are to be protected from constraints imposed by adjacent development. A buffer zone of 1km will be maintained around the quarry sites in order to ensure protection of adjacent areas from noise, air blast overpressure and ground vibration nuisance. Within this protection zone, only development free of constraints on quarry operation is to be permitted.
There was no direct evidence of these matters. The proponent’s representatives informed the Tribunal that the separation distance is 920 metres instead of one kilometre, although there was no evidence as to which part of the development site infringes on the buffer zone.
Second, the applicants submitted the proposed development conflicts with the Separation Distance Guidelines for Air Emissions published by the Territory in November 2018 (Separation Guidelines) because the proposed cremators are located 16 metres from the boundary with Callum Brae instead of 150 metres.
The applicants submissions assumed non-compliance with a zone objective would mandate that development approval should be refused. This is incorrect.
In Baptist Community Services v ACTPLA [2015] ACTCA 3, Refschauge and Penfold JJ explained the significance of zone objectives at [58]-[63] as follows:
58. We have rejected the appellant’s submission that a proposal in the merit track must be approved if it is code-compliant…and ACTPLA’s submission that a proposal in the merit track must not be approved if it is inconsistent with a “relevant” zone objective…
59. This in our view leaves s 120 open to being interpreted, according to its terms, as giving a discretion to approve or reject a proposal that is code-compliant (and therefore not required to be rejected under s 119) such discretion being exercisable only after consideration of the matters set out in paragraphs 120(a) to (f) (to the extent that they are relevant to a particular proposal). That is the alternative submission put by ACTPLA, and is in our view the only meaningful way in which to interpret s 120.
60. In Argos Pty Ltd v Corbell [2012] ACTCS 102…at…[67] (Argos). Burns J in obiter dicta said:
…s 119(1)(a) of the Planning Act requires consistency with the relevant codes, not with the zone objectives. Section 53 of the Planning Act provides that the objectives for a zone set out the “policy outcomes to be achieved” by applying the applicable development table and code to the zone. The objectives are not intended to operate as criteria against which proposals, or constituent parts of a proposal, are to be checked. Rather they are intended to provide guidance in interpreting the rules and criteria found in the codes.
61. Our conclusions are partly consistent with Burns J’s views in Argos.
62. We agree with his Honour that the zone objectives are relevant in interpreting a code) and thereby assessing compliance with it), and that inconsistency with zone objective does not mandate rejection of a development proposal.
63. However, we also consider that consistency with the zone objectives is properly considered in the exercise of the s 120 discretion to approve a development in the merit track, and that inconsistency with zone objectives may also provide a basis for a discretionary rejection of a code-compliant development. To that extent our views may differ from those expressed by his Honour in Argos. [28]
[28] Burns J agreed with their Honours’ orders and reasons at [79], adding only that he did not see any conflict between their Honours’ reasons and what he said in Argos.
Assuming for present purposes that part of the development site infringes the Boral Quarry buffer zone by approximately 80 metres, it does not follow that the development creates a constraint on quarry operations, which appears to be the result the imposition of a buffer zone is intended to prevent. The Tribunal is not persuaded a minor infringement of the buffer zone is sufficient to justify discretionary rejection of the development proposal.
The Separation Guidelines are not part of the Territory Plan. The emphasis the applicants gave them appeared to be founded on the (unstated) proposition that compliance with the guidelines was necessary to “make provision for activities requiring…protection from conflicting development” and therefore, compliance with zone objective (b). Although the applicants’ position was by no means clear, the submission appeared to be that if the development proposal did not comply with the Separation Guidelines it necessarily did not comply with zone objective (b) because it failed to protect Calum Brae from a “conflicting development”.
The Separation Guidelines are intended to provide recommended separation distances between various emitters and sensitive land uses and provides “one method of considering potential conflicts between incompatible land uses”.[29] The introduction states:
While the separation distances in these guidelines are recommended distances, there is the opportunity for a proponent to demonstrate that a separation distance, other than the recommended distance, is appropriate by using the mechanisms in these guidelines. Therefore, the distances recommended in these guidelines are indicative and may be adjusted having regard to specific site circumstances. [30]
[29] Exhibit A3 (Separation Guidelines) p 2 (Introduction)
[30] Ibid. p 2
Under “Background”, the Separation Guidelines state:
The primary role of the guidelines is to aid in the assessment of development proposals. The application of the guidelines will assist in protecting the amenity in residential and other sensitive areas, and can be used by planning authorities to protect industry from encroachment by sensitive land uses. [31]
[31] Ibid. p 2
Section 4.2 states that the guidelines are intended to protect the amenity of sensitive land uses, including “parklands, recreation areas or reserves (regular public use)”.
The recommended separation distance for cremation is 150 metres. The crematorium building is located more than 150 metres from the south-eastern boundary and approximately 16 metres from the south-western boundary with Callum Brae.
Section 4.1.4 of the Separation Guidelines states:
Where the distance between the measurement point and the activity boundary is less than the recommended separation distance, the Planning and Land Authority should request the proponent to demonstrate why the lesser distance would be appropriate in accordance with Section 5 ‘Amendments to Separation Distances’ of these guidelines.
Section 5 provides criteria a proponent should address when seeking a site-specific variation from the recommended separation distance. The evidence suggests a specific variation was not considered necessary. Purdon Planning wrote in their ‘Planning Report and Statement against Criteria, dated May 2021:
The ACT Government’s Separation Distance Guidelines for Air Emissions 2018 recommends 150m of separation between cremation activities and urban areas. Given the site is located approximately 900m from established urban areas, the siting is considered appropriate.[32]
[32] T-docs p 1452
The applicants criticise this statement because it “fails to acknowledge that the Government guidelines also recommend a 150m of separation between cremation activities and a reserve (regular public use)”.
The NoD addressed the issue as follows:
More generally, the site is outside of the main urban area and is considered suitable for use as a crematorium which some community members may find a sensitive use. With such sensitivities, a site with limited urban surrounds is considered preferable… On balance the site is considered suitable for the use and proposal. The interaction with the site surrounds including the neighbouring reserve are considered in this.[33]
[33] T-docs p 36
The Tribunal accepts that Callum Brae is a reserve. Whether it meets the requirement of “regular public use” is less clear. While there was some evidence of public use – the applicants being persons who regularly use the reserve – there was no evidence of the extent to which Callum Brae is used by members of the public.
Assuming (without deciding) that Callum Brae is, or could be, a sensitive land use and therefore that a recommended separation distance of 150 metres would apply for cremation, there is no evidence why a separation distance of 16 metres from the south western boundary with Callum Brae is inappropriate considering all the circumstances.
Accordingly, even if compliance with zone objective (b) requires compliance with the Separation Guidelines – which is not established on the evidence – the Tribunal is not persuaded the established facts would justify discretionary rejection of the development proposal.
Zone objective (c)
The applicants submitted:
Capital Ecology report states…that “The proposed development will have a large number of direct and indirect environmental impacts”.
The definition of “environmental qualities” includes reference to noise, pollution and transportation.
The block is located at the intersection of three nature reserves, next to a Heritage listed farm and a large rural NUZ1 Broadacre zone. Around 100 trees are marked for removal… More than 90% of the EPBC Act and NC Act controlled Yellow Box Blakely’s Red Gum Woodland will be removed due to the construction of the overflow car park and the site’s second driveway on Narrabundah Lane. This will adversely impact on the wildlife corridor landscape and on the environment quality of the locality.
Callum Brae Nature Reserve is located in the immediate vicinity of the proposed development. As outlined in Canberra Nature Park Reserve Management Plan 2021, one of Canberra nature reserves’ long-term management aim is to maintain connectivity with other woodland areas to ensure there is ongoing viable habitat for threatened and declining woodland birds. The development will fragment this habitat and will adversely impact on visually intrude on the landscape and environmental quality of the locality.[34]
[34] Applicant’s Revised Application, filed 20 February 2024 at p 6
These issues have been discussed earlier. The Tribunal is satisfied the applicants’ concerns are adequately addressed by varying condition 5(a)(iv) of the conditions of consent in the manner discussed earlier. The Tribunal is satisfied that with those changes the development complies with zone objective (c).
Section 120(h) – probable environmental impacts on remnant patches of Yellow Box – Blakely’s Red Gum woodland, Swift Parrots and Small Ant Blue Butterflies.
The NoD addressed environmental impacts as follows:
The representations raised a number of environmental concerns. The site and surrounding environmental values and potential impact of the development were carefully considered during the assessment. The DA was supported by ESOs and entities with environmental focus advice advising of conditional support. This notice of decision has been made consistently with such advice. It was however identified that the ESOs have a construction period focus and to provide ongoing environmental outcomes, and additional commitment to protecting those areas and values was considered required. A condition has been imposed to require an ongoing management plan to achieve such outcomes. To offer greater certainty, the Authority considers the ongoing management plan be required in the Crown lease.[35]
[35] T-docs p 35
The impact on Swift Parrots and remnant patches of woodland has been discussed earlier. The Tribunal is satisfied these issues are adequately addressed by the revised condition it proposes to substitute for condition 5(a)(iv) of the conditions of consent.
Condition 5(c) requires the lessee to submit an ongoing plan of management that is consistent with the DA information and identifies, among other things:
environmental and cultural management outcomes consistent with current ESO decisions (see condition 7 below) and includes subject site constraints and management practices. Generally this shall exclude the site sensitive areas from use and detail ongoing management practices of such sensitive areas.[36]
[36] T-docs p 28
A note to condition 5(c) states the management plan will be referred to relevant entities, including the Conservator, EPA and Heritage Council for advice. Once the management plan is endorsed as sufficient, it will be required to be lodged against the title.
Condition 7 states:
The Conservator has advised that ‘provided the works are undertaken in a manner consistent with the conditions in addition to the mitigation measures contained in the supporting application for an ESO, they are unlikely to cause a significant adverse environmental impact’. The opinion is granted subject to the following conditions:
a) All works are to be undertaken in accordance with the endorsed CEMP.
b) Connectivity between this site and adjacent known populations of Small Ant-blue Butterfly (Acrodipsas myrmecophila) must be maintained, including maintaining habitat preferences for the species by:
oMaintaining active regeneration of Eucalyptus
oRetaining young trees suffering dieback
oMaintaining an unmanicured understorey (grasses and forbs, logs, fallen branches, twigs and litter)
oSetting “no mow” areas and/or ecological focused mowing (i.e. suitable timing and frequency) to achieve a unmanicured understorey with retention of a native understorey with variable natural grass heights
c) A suitably qualified ecologist is to be engaged to inspect trees prior to removal to check for the presence of Coconut Ant (Papyrius nitidus) or Small Ant-blue Butterfly larvae.
d) All currently identified (with the exception of nest CA1) and any new Coconut Ant nests discovered during development must be protected and clearly marked as “no-go” areas – in particular, nest CA4, which has been identified as having potential to be indirectly impacted due to proximity to the development footprint.
e) Options for the translocation of the directly impacted remnant tree and associated nest CA1 must be explored in consultation with species experts and the ACT Parks and Conservation Service.
With the changes to condition 5(a)(iv), the Tribunal is satisfied the probable environmental impacts of the development are adequately addressed by the conditions of consent.

The applicants seek leave to re-open their case

Shortly before the matter was listed for the final day of submissions, the applicants lodged an application for leave to re-open their case. The application was considered at the start of the hearing on 26 June 2025, resulting in leave being refused.
Only the following issue raised by the application requires mention:
8. DA 20213879 lacks proper Australian Company Number, ACN
ACAT refused the DA for the Federal Golf Club development because the DA was not properly signed. (Canberra Times, 13 June 2025, p 14) The DA's for InvoCare’s private crematorium complex are deficient because they did not have a proper Australian Company Number, ACN.
The deficiency of the DA 202138789 has been pointed out in comments to the DA, listed in the T-documents, pages 144, 149, 176, 180, 224, 687, 689, 1179, 1181-1183.
The decision in question is Friends of Federal Fairways v ACT Planning and Land Authority [2025] ACAT 44. The issue in Federal Fairways did not concern the absence of an ACN but rather turned on whether the development application had been properly authorised for the purposes of section 139 of the Planning Act. The decision is on appeal to the Supreme Court.
The respondent and the party joined submitted the decision is wrong and concerns matters the ACAT does not have jurisdiction to decide within the scope of the jurisdiction conferred on it by section 121(2) of the Planning Act. Both the respondent and party joined submitted it would be procedurally unfair to permit an issue to be raised for the first time about whether the development application was duly authorised after the evidence had closed. Among other things, the party joined submitted it would have called evidence on the issue if it had been given notice that the applicants intended to make that case. The Tribunal agreed and refused the applicants leave to reopen their case to raise that issue.

The correct or preferable decision

The Tribunal was satisfied, for these reasons, that the decision to approve, subject to conditions, development application number 202138789/s144C/s144E/s144G should be varied in accordance with orders pronounced on 26 June 2025.

………………………………..

Senior Member M Orlov
For and on behalf of the Tribunal