Beven and Act Planning & Land Authority
[2008] ACTAAT 3
•20 February 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:BEVEN AND ACT PLANNING & LAND AUTHORITY & ANOR [2008] ACTAAT 3 (20 FEBRUARY 2008)
AT07/61
Catchwords: Land and planning – jurisdiction - development application exempt from review by Tribunal - item 20 Schedule 1 of the Land (Planning and Environment) Regulations
Land (Planning and Environment) Act 1991, s 282, Pt 6
Land (Planning and Environment) Regulation 1992, s 40, Sch 1
Tribunal:Mr M H Peedom, President
Date:20 February 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/61
LAND AND PLANNING DIVISION )
RE: TERENCE PATRICK
BEVEN &
JEONG-BOK KIM
BEVEN
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: WOOD AND DAY
PARTNERSHIP
Party Joined
DECISION
Tribunal : Mr M H Peedom, President
Date : 20 February 2008
Decision :
The application for review of decision is dismissed for lack of jurisdiction.
…………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/61
LAND AND PLANNING DIVISION )
RE: TERENCE PATRICK
BEVEN &
JEONG-BOK KIM
BEVEN
Applicant
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: WOOD AND DAY
PARTNERSHIP
Party Joined
EX TEMPORE REASONS FOR DECISION
20 February 2008 Mr M H Peedom, President
The applicant in this case has applied for the review of a decision to conditionally approve a development application made in respect of the premises of the Canberra City Bowling Club which are located in Elder Street, Braddon. The development proposed was for three items of roof mounted mechanical equipment apparently to be used for the extraction of kitchen and toilet generated vapours and odours.
2. The respondent has challenged the jurisdiction of the Tribunal to hear and determine the appeal. It does so on a number of grounds.
3. The grounds depend, however, on a finding by the Tribunal that the development is for a “minor development”, which is an expression defined by the relevant legislation.
4. The respondent’s challenge to jurisdiction is supported by the party joined on an additional ground.
5. The plans of the development application show two roof mounted exhaust chimneys or funnels constructed of galvanised metal finish and white plastic capping and a roof mounted supply chimney or funnel beyond of galvanised metal finish and white plastic capping.
6. According to the scale plans of the development application none of the objects to be constructed is more than 1.5m above the surface of the roof on which they are to be mounted. The measurements undertaken by Mr Van der Walt show that the height of the approved structures above the roof range from 1m to 1.1m in height.
7. Section 282(1)(c) of the Land (Planning and Environment) Act 1991 (“the Land Act”) provides that Regulations may be made which make provision for exempting development from the application of Part 6 of the Land Act. Part 6 of the Land Act contains the provisions which relate to the approval of development applications and applications to review them. Section 40(1) of the Regulations made under the Land Act provides that Part 6 does not apply to a development listed in Schedule 1 of the Regulations. A development listed in Schedule 1 is therefore exempt from the Tribunal’s jurisdiction to review a decision approving it. Item 20 of Schedule 1 specifies the:
installation of a chimney, flue or vent extending not more than 1.5m above the surface of a roof
as a development which is exempt from the operation of Part 6 of the Land Act.
8. The structures which are the subject of the development application are what would commonly be described as chimneys, flues or vents. I note also that in a letter to the Minister dated 14 October 2007 the applicant describes the largest as a “flue/vent”. Having regard to their height above the surface of the roof on which they are proposed to be mounted, they fall within the description of item 20. They are therefore exempt from any right of appeal.
9. It is unnecessary to say anything about the ground of exemption relied upon by the respondent.
10. I note that work has already been undertaken on the club premises which involves the construction of four roof mounted vents one of which, according to the evidence, exceeds 1.5 metres in height. It would not be covered by the exemption found to apply in this case.
11. Evidently, none of the four structures have been constructed in accordance with any approval of the respondent.
12. The Tribunal has no function to perform in respect of these structures. Its function is to review decisions which the Land Act confers jurisdiction on it to review. As I have explained, the legislation exempts the structures approved by the respondent’s decision from the appeal process.
13. Irrespective therefore as to whether the development approved by the respondent is properly to be considered minor or not minor and irrespective as to the impact which it has on the applicant’s amenity, the Tribunal has no role to play in relation to the matter because the Regulations exempt the development from the appeal process.
14. There are other provisions under the Land Act which provide for action to be taken in respect of unapproved structures. No decision regarding such action is the
subject of an application for review of decision to the Tribunal and it therefore has no function to perform in respect of them.
15. The application for review of decision should be dismissed.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/61
APPLICANT: TERENCE PATRICK BEVEN & JEONG-BOK KIM BEVEN
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: WOOD AND DAY PARTNERSHIP
COUNSEL APPEARING: APPLICANT:
RESPONDENT: MS K KATAVIC
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT: SELVES
RESPONDENT:
PARTY JOINED: MR P VAN DER WALT
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 22 JANUARY &
20 FEBRUARY 2008 PLACE: CANBERRA
DATE OF DECISION: 20 FEBRUARY 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
ORAL DECISION GIVEN
0
0
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