Blunden and Act Planning & Land Authority
[2007] ACTAAT 1
•24 January 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:BLUNDEN AND ACT PLANNING & LAND AUTHORITY & ANOR [2007] ACTAAT 1 (24 JANUARY 2007)
AT06/78
Catchwords: Land and planning - review of decision approving changes made to development application following reconsideration in accordance with Tribunal's previous decision - application to dismiss - whether changes to plans of development application required to be publicly notified - whether application for review of decision frivolous or vexatious.
Administrative Appeals Tribunal Act 1989, s 43A
Land (Planning and Environment) Act 1991, ss 226, 229, 233 & 284
Griffith/Narrabundah Community Association Inc & Ors & ACT Planning and Land Authority and Ors [2006] ACTAAT 17 (31 May 2006)
Michael and Secretary, Department of Employment, Science and Training and
Edwards and Secretary, Department of Health and Ageing [2006] AATA 227 (9 February 2006).
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Moulis and ACT Planning and Land Authority & Ors [2006] ACTAAT 24 (4 July 2006)
S Pulle Pty Ltd and Commissioner for Land & Planning [1999] ACTAAT 48 (21 December 19990 (unreported)
Pashalidis and ACT Planning & Land Authority & Ors [2004] ACTAAT 21 (24 May 2004)
Tribunal:Ms P O’Neil, Senior Member
Date:24 January 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/78
LAND AND PLANNING DIVISION )
RE: GEOFFREY HALSTEAD
BLUNDEN & CAMILLA
LAURA BLUNDEN
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: NIDAH PTY LTD
Party Joined
DECISION
Tribunal : Ms P O’Neil, Senior Member
Date : 24 January 2007
Decision :
- The Tribunal is satisfied that the application for the review of the decision is frivolous or vexatious.
2. The Tribunal therefore, pursuant to section 43A(1) of the Administrative Appeals Tribunal Act 1989, dismisses the application for review of decision.
………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/78
LAND AND PLANNING DIVISION )
RE: GEOFFREY HALSTEAD
BLUNDEN & CAMILLA
LAURA BLUNDEN
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
RespondentAND: NIDAH PTY LTD
Party Joined
REASONS FOR ORDER
24 January 2007 Ms P O’Neil, Senior Member
This is the second occasion on which this matter has been before the Tribunal. It concerns a development application by Nidah Pty Ltd (Nidah) for the consolidation of two leases in Red Hill, the demolition of two existing detached dwellings and the erection of five attached dwellings, with car parking, landscaping and other associated works.
2. In Moulis and ACT Planning and Land Authority & Ors [2006] ACTAAT 24 (4 July 2006), the Tribunal reviewed a decision by the ACT Planning and Land Authority (the Authority) to approve the development application with conditions. Mr and Mrs Blunden (the applicant) were a party joined in Moulis as objectors to the original decision.
3. The Tribunal set aside that decision and remitted the matter to the Authority to be determined in accordance with its reasons for decision. Those reasons disclose three matters that the Tribunal determined needed to be satisfied before the development application could be approved. They were reduction in the plot ratio, softening the landscaping to the street frontage and ensuring consolidation and correctness of the plans. A number of other matters including the interpretation of A10 policies, traffic and parking, bulk and scale, tree protection and alleged conflict of interest were considered by the Tribunal over the four days of hearing evidence and submissions. It did not find that any other of those matters rendered the proposed development inconsistent with the Territory Plan.
4. Nidah submitted further plans to the Authority, which found the revised development application was now consistent with the Tribunal’s reasons for decision in Moulis and not inconsistent with the Territory Plan. Accordingly it approved the development application with conditions.
5. The applicant then applied to the Tribunal for review of that decision. In accordance with a direction of the Tribunal, the applicant filed a statement of facts and contentions. It made no complaint that the three matters identified by the Tribunal in Moulis had not been adequately dealt with, but included detailed discussion under the following headings:
a) Issues relating to the correct legal, administrative and consultation steps which needed to be followed by the Authority in its general consideration of the altered DA,
b) AAT decision of 06/67, relating to the original DA (DA 20054602) – Problem areas on matters of fact and equitable assessment,
c) The receipt of the AAT, in the present matter, of information from the Authority based on procedures which were in serious breach of the legislation relating to Authority consideration of development applications and relating to possible, subsequent review applications to the AAT,
d) Opposition to the destruction of trees and issues relating to disputed location of threatened trees,
e) Contention relating to the discordant character of the development,
f) Contention concerning the correct definitional basis for approval in an A10 area,
g) Contention that the approval of the DA is invalid due to the lack of due process relating to lack of information, and consideration, about conflict of interest,
h) Contention concerning misleading statements made by the developer, and the lack of consideration of this issue by the Authority, and
Contention relating to adverse effects linked to parking and traffic in Esperance Street.
6. Nidah then applied to the Tribunal to dismiss the application for review under section 43A of the Administrative Appeals Tribunal Act 1989. Section 43A empowers the Tribunal to dismiss an application at any stage if satisfied that it is frivolous or vexatious. Nidah submitted that the matters raised by the applicant fell into three categories: agitation of issues already decided by the Tribunal in Moulis, questioning of the correctness of the Tribunal’s decision in Moulis and challenging the procedure adopted by the Authority after remittal. Nidah submitted, relying on the Tribunal’s approach in Griffith/Narrabundah Community Association Inc & Ors & ACT Planning and Land Authority and Ors [2006] ACTAAT 17 (31 May 2006), that as no new issue of substance was raised by the application the matter should be dismissed as frivolous and vexatious.
7. The question of reconsideration of administrative tribunal decisions was considered by Downes J in Michael and Secretary, Department of Employment, Science and Training and Edwards and Secretary, Department of Health and Ageing [2006] AATA 227 (9 February 2006). He restated the principle that tribunal decisions are final, subject to appeal on questions of law to the court. He then considered the application of the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, where it held that the Immigration Review Tribunal had jurisdiction to reconsider a decision made in breach of the rules of procedural fairness because such a decision involved jurisdictional error and was properly regarded, in law, as no decision at all. Downes J concluded at paragraph 17:
“….. I conclude that it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.”
8. The applicant argued that administrative error by the Authority had occurred after remittal in that the revisions of the plans were alterations within the meaning of section 226(7) of the Land (Planning and Environment) Act 1991 (the Land Act) and therefore should have been notified in accordance with section 229 of the Land Act. It is not necessary to decide whether the plans were submitted pursuant to section 226, or section 233 as the respondent submitted, or otherwise. In earlier cases the Tribunal has considered the circumstances in which re-notification should occur: see Pashalidis and ACT Planning & Land Authority & Ors [2004] ACTAAT 21 (24 May 2004) and S Pulle Pty Ltd and Commissioner for Land & Planning [1999] ACTAAT 48 (21 December 19990 (unreported). S Pulle reads in part (at para.39):
“…. The decision of the Supreme Court in Re Calardu Pty Ltd (1990) 100 ACTR 1 at 6 makes it clear that the purpose of such notification is to enable the public to have a fair opportunity to consider the development application and to take necessary advice, if advice is required, as to the desirability or otherwise of the development proposal and to determine, assuming the necessary standing under section 237 of the Land Act, whether to object to the grant of approval. If a variation in the development application from that publicly notified is proposed, the question becomes whether there is such a material difference between the original development application and the variation proposed to it that a potential objector could be prejudiced by being deprived of a fair opportunity to object which might have been exercised had the application been advertised in the form as proposed by the variation.”
9. In this case, the development application has been altered to the extent necessary to satisfy the Tribunal’s requirements. They were to reduce the plot ratio to fifty percent, to soften the landscaping to the street frontage and to ensure that a complete and accurate set of plans were available. Those matters were canvassed during the course of the hearing in Moulis. In other respects the development proposal is essentially the same as that previously notified to the public. The Authority did write to all previous objectors including the applicant giving them an opportunity to comment upon the revised plans. The applicant and others took the opportunity to make written comments. There is no reason to believe, nor was it argued, that yet others with the necessary standing were unaware. In those circumstances, no benefit would be derived from re-notification and its only effect would be to delay the process. As in Pashalidis, were it necessary to exercise the power in section 284 of the Land (Planning and Environment) Act 1991 to dispense with a requirement to notify in accordance with section 229, I would do so.
10. The respondent supported the application by Nidah to dismiss the review application under section 43A. The applicant opposed the dismissal, arguing that there remained matters of fact as well as of procedure in dispute. In particular the applicant is concerned to retain a row of trees situated near the boundary of its land and the land the subject of the development application. In Moulis, the Tribunal found that there was no planning objection to the removal of the trees, which were shown on drawings before the Tribunal as located on the land the subject of the development application. The applicant has very recently provided a surveyor’s drawing and photographs of the line of trees, in support of its contention that the trees are on the boundary line.
11. The effect of the Tribunal’s decision in Moulis is to permit the removal of the trees on the land the subject of the development application, being Blocks 3 & 4 Section 43 Red Hill. It does not permit the removal of trees on the applicant’s land. The planning jurisdiction of the Tribunal does not extend to determining disputes between neighbours as to the location of a common boundary. The applicant will need to seek other avenues of redress if this matter cannot be resolved between the parties.
12. An application is frivolous or vexation if it serves no useful purpose. I conclude that no useful purpose would be served by undertaking the review sought. I dismiss the application under section 43A.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/87
APPLICANT: GEOFFREY HALSTEAD BLUNDEN & CAMILLA LAURA BLUNDEN
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: NIDAH PTY LTD
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
PARTY JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED: MALLESONS STEPHEN JAQUES
OTHER:APPLICANT: SELF
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MS P O’NEIL, SENIOR MEMBER
DATE/S OF HEARING: WRITTEN SUBMISSIONS PLACE: CANBERRA
DATE OF DECISION: 24 JANUARY 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS:
0
0
0