BUTT & ACT PLANNING and LAND AUTHORITY & ACT HERITAGE COUNCIL (Administrative Review)

Case •

[2012] ACAT 69

•

15 October 2012

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BUTT & ACT PLANNING AND LAND AUTHORITY & ACT HERITAGE COUNCIL (Administrative Review) [2012] ACAT 69

AT 12/40

Catchwords:             ADMINISTRATIVE REVIEW– stop notice under section 53 of the Building Act 2004 –  development approval granted under the Land (Planning and Environment) Act 1991 (repealed) – whether development approval lapsed – whether duration of development approval was extended by amendment of the development approval – whether there is a freestanding power to extend the period of a development approval – whether section 184 of the Planning and Development Act 2007 has ended the development approval – interpretation of provision: purpose of legislation; avoiding capricious and illogical results

List of legislation:                 Building Act 2004, s. 53

Land (Planning and Environment) Act 1991 (Repealed), ss. 230, 245, 251 & 252
Legislation Act 2001, ss. 139, 140, 142 & 151C
Planning and Development Act 2007, ss. 162, 184-187, 188, 197, 198, 429, 444 & 492, and Divisions 7.3.9 and 7.3.11

List of Regulations:              Planning and Development Regulation 2008, s. 51

List of cases:  Australian Securities & Investments Commission v Donald (2003) 136 FCR 7; [2002] FCA 1174

In Re The Commercial Bank of Australia Limited
(1893) 19 VLR 333
DJ v RHS (2004) 182 FLR 76; [2004] ACTSC 12
Haureliuk v Furler (2012) 6 ACTLR 151
Minister of State for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Stone and ACT Planning & Land Authority
[2008] ACTAAT 8

List of Texts/Papers/etc:      D

Pearce and H Geddes, Statutory Interpretation in Australia (7th ed, 2011)


Explanatory Statement to the Planning and Building Legislation Amendment Bill 2011

Explanatory Statement to the Planning and Development Bill 2006

Tribunal:                  Professor P. Spender, Presidential Member

Date of Orders:  15 October 2012

Date of Reasons for Decision:       15 October 2012

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL AND ADMINISTRATIVE TRIBUNAL )          NO:  AT 12/40

BETWEEN:

ERIC GRAHAM BUTT

Applicant

AND:ACT PLANNING AND LAND AUTHORITY

Respondent

AND:THE ACT HERITAGE COUNCIL

Party Joined

TRIBUNAL:            Professor P. Spender

DATE:  15 October 2012

ORDER

The Tribunal finds that:

  1. Development approval DA200703503 has ended.

The Tribunal orders that:

The application for review is to be listed for further directions at 9.30am on Thursday 25 October 2012.

………………………………..

Professor P. Spender

Presidential Member

REASONS FOR DECISION

INTRODUCTION

  1. The application for review concerns the decision of a building inspector, Mr Peter Apps, to prohibit the applicant, Mr Eric Butt, from carrying out building work of the kind described in the “Stop Notice” dated 17 April 2012 (the decision). The stop notice was issued pursuant to s. 53 of the Building Act2004 (the Building Act) and pertained to the development being carried out at Blocks 12 and 16, Section 64 Yarralumla (the Land).

  1. The stop notice stated that the building work was being carried out on the Land otherwise than in accordance with the approved plans for the building work and prohibited any construction work other than that required for the propping and supporting of the brick cottage structures on Block 16 Section 64 Yarralumla.

  1. It was subsequently discovered that the development approval relating to the Land (DA200703503) might have expired.[1]  This possibility was communicated to the applicant by email from Ms Jamaly of the respondent on 26 April 2012.[2]

    [1] Pages T14 – T19

    [2] Pages T134-T135

  2. The applicant sought review of the decision by an application lodged with the Tribunal on 18 May 2012. 

  1. The parties agreed that the question of whether the development approval had lapsed (the Question) should be determined by the Tribunal at first instance and the Tribunal made directions which gave effect to that agreement at a directions hearing held on 27 June 2012.  Acting on the directions made by the Tribunal, the parties filed facts and contentions and an interlocutory hearing was held to determine the Question on 16 August 2012.

  1. In those facts and contentions, the applicant sought declaratory relief that the development approval had not ended, or an order to cause that result.

  1. After the interlocutory hearing, the Tribunal sought further written submissions from the parties and these submissions were filed by the respondent on 10 September 2012 and by the applicant on 14 September 2012.

  1. As explained below, the Tribunal has concluded that the development approval has lapsed. The lapsing of the development approval has occurred because it has been ended by the operation of s 184 of the Planning and Development Act 2007 (the Planning Act). Therefore the finding above uses the language of s 184 in concluding that the development approval has ended but this conclusion is synonymous with it lapsing, so the answer to the question is in the affirmative. The matter has been listed for further directions hearing on 25 October 2012 to consider the further conduct of the matter.

BACKGROUND

  1. On 4 October 2007, a delegate of the respondent, Mr Senger, approved (subject to conditions) the applicant’s development application for the demolition of existing buildings and the erection of eight attached dwellings on the Land and associated lease variations and other site works. The approval was given pursuant to ss. 230 and 245 of the Land (Planning and Environment) Act 1991 (the Land Act).

  1. Clause 10 of the notice of decision to approve the development read as follows:

    Completion

    10.that the approved development shall be completed within 24 months from the date of this approval or within such further time as may be approved in writing by the Planning and Land Authority;

    Notes:

    1. Under section 251 of the Land Act this approval will expire if the development is not commenced within two years after the date of approval. There is no provision in the Land Act to extend the period specified for commencement.

    2. Under section 252 the applicant may apply to the Planning and Land Authority for any extension to the period specified for completion, but such an application must be made within the original period specified for completion.

  2. Mr Senger’s decision of 4 October 2007 was varied by the ACT Administrative Appeals Tribunal (the AAT) on 10 April 2008, in the decision of Stone and ACT Planning & Land Authority[3] to add further conditions (the Initial Approval).

    [3] [2008] ACTAAT 8

  1. The Land Act was repealed on 31 March 2008, upon commencement of the Planning Act.

  2. On 2 April 2009, the applicant applied for a “12 month extension to the development application period”.[4]  On 23 April 2009, the respondent granted a “further extension of 12 months” to complete the works.[5]  This was communicated to the applicant by a letter from Mr Buddhadasa, who was an Assessment Officer in the Development Assessment Branch of the respondent.  The letter continued:

You are now required to complete the said works approved under DA No: 200703503 by 10 April 2011.[6]

[4] Page T868

[5] Page T869

[6] Page T869

  1. On 4 February 2011, the respondent approved, in part, an application to amend the Initial Approval.[7]  The amendment included reducing the number of units and reconfiguring other units.  This was referred to in the applicant’s facts and contentions as the “Amendment C Approval”.  This terminology refers to the development approval number 200703503/C and will be adopted by the Tribunal.

    [7] Page T143-T145

  2. As stated above, on 17 April 2012, Mr Peter Apps, a building inspector, issued a stop notice under s. 53 of the Building Act.[8]

[8] Page T11 and T2 at page T45

  1. After it was discovered that the development approval might have lapsed, Mr Streatfeild (on behalf of the applicant) sent a letter to the respondent on 1 May 2012 requesting an extension of time to complete the works required by the development approval.[9]  Although there is no record of a response to Mr Streatfeild’s letter, the reasons for the decision given by the respondent on 22 May 2012 state at paragraph 6:

On 10 April 2011 the DA lapsed.[10]

[9] Page T 121-124

[10] Pages T45-T50

  1. On 23 April 2012, the applicant lodged an application with the respondent for cancellation of the stop notice.

  2. On 18 May 2012, the applicant lodged an application in the Tribunal to review the decision.

  3. On 22 May 2012 the application for the cancellation of the stop notice was refused by the respondent.

The Applicable Law

  1. As stated above, the primary focus of the interlocutory hearing was to resolve the issue of whether the development approval had lapsed, because the parties only became aware of this possibility after the decision had been made.  It was noted during the interlocutory hearing that there is some uncertainty as to who might be the proper respondent to the application for review but this issue was put to one side so the Question could be dealt with first.

  1. The proposed development is subject to the provisions of the Planning Act and to the Planning and Development Regulation 2008 (ACT) (the Planning Regulation). The interpretation of s. 184 of the Planning Act is pivotal in determining the issue. Specifically, s 184(2), (3) and (4) of the Planning Act apply in determining whether any development approval has lapsed.

  1. Section 184(2),(3) and (4) of the Planning Act provide:

    184       End of development approvals other than lease variations

    (2) A development approval to which this section applies ends if—

    (a)the development or any stage of the development has not started by the end of the period stated in the approval; or

    (b)the development or any stage of the development has not finished by the end of the period stated in the approval; or

    (c)if no period is stated in the approval for starting the development or any stage of the development—

    (i)the development or stage of development has not been started 2 years after the day the approval takes effect; or

    (ii)if an appeal is made to a court in relation to the approval—the development or stage of the development has not started 2 years after the day the appeal ends; or

    (d)the approval holder surrenders the approval to the planning and land authority; or

    (e)if no time is stated in the approval for finishing the development—the development is not finished—

    (i)2 years after the day the development begins; or

    (ii)if an extension of the 2-year period is granted under this section—at the end of the extended period; or

    (iii)if an appeal is made to a court in relation to the approval—

    (A)2 years after the day the appeal ends; or

    (B) if an extension of the 2-year period is granted under this section—the extended period after the appeal ends; or...

    (3)    On application made before the end of a prescribed period, the       planning and land authority may extend the prescribed period.

    Note A development approval to which this section applies continues unless the approval ends under this section, s 185, s 186 or s 187.

    (4) In this section:

    prescribed period, in relation to a development approval, means—

    (a)the time stated in the approval for finishing the development or a stage of the development; or

    (b)if no time is stated in the approval for finishing the development—

    (i)the period ending 2 years after the day the development begins; or

    (ii)if an appeal is made to a court in relation to the approval—the period ending 2 years after the day the appeal ends.

    Note Ends—see the dictionary

  2. The Note under s 184(4) specifies that the word “ends” is defined in the Dictionary to the Planning Act, however, the Dictionary meaning refers to the ending of an appeal, which is not relevant in the present case. However, the Note under s 184(3) refers to other provisions which state that a development approval continues unless the approval ends under s 184 or other related sections. To remove any doubt, s 188(2) makes it clear that a development approval continues unless it is effectively ended by ss 184, 185, 186 or 187. Section 184 is the only relevant section which may end the present development approval, but the effect of s 188 is that the development approval will continue unless effectively ended by s 184.

  1. Because the Initial Approval was given under the Land Act, which was repealed upon the commencement of the Planning Act, the transitional provisions are relevant to this issue. As of 27 March 2008, s 444 of the Planning Act (as modified by s 429(2) of the Planning Act and s 51 item 5.4 of the Planning Regulation) applied to the Initial Approval. Section 444 states:

444        Transition-approvals under repealed Act

(1)       This section applies if-

(a)Immediately before commencement day, a person had an approval under the repealed Act, part 6 (Approvals and orders); or

(b)the planning and land authority gives an approval under the repealed Act after the commencement day

Note    The repealed Act applies to applications for approval not decided immediately before commencement day (see s 442 as modified by regulation).

(2)The approval-

(a)is taken to be a development approval under this Act; and

(b)unless extended under this Act, continues in force until the time when it would have ended under the repealed Act; and

(c)If the application to which the approval relates was not required to be publicly notified under the repealed Act an application under this Act for this Act of the amendment of the approval need not be notified under this Act

NoteIf an application for reconsideration has not been finally decided by the planning and land authority, the repealed Act (including rights of AAT review under the repealed Act) continues to apply to the application (see s. 442 as modified by regulation).

  1. Pursuant to s 444(2)(a) of the Planning Act, Mr Senger’s approval under the Land Act, as varied by the AAT on 10 April 2008, is taken to be a development approval under the Planning Act.

  1. Pursuant to s 444(2)(b) the approval would ordinarily have continued in force until ended under s 251 of the Land Act. Section 251 of the Land Act stated as follows:

251        End of approvals

(1)     An approval to undertake a development (other than a development that consists only of a variation of a lease) ends if—

(a) the development or any stage of the development is not begun

within the period specified in the approval; or

(b) the development or any stage of the development is not

completed within the period specified in the approval; or

(c) if no period is specified in an approval for the beginning of the

development or any stage of the development—the

development or stage of development is not begun within 2 years after the day the approval takes effect ….

(2)     The end of an approval does not affect anything done under the

approval before its end.

  1. However, s 444(2)(b) is no longer relevant because on 2 April 2009, as stated above, the applicant applied for a “12 month extension to the development application period”.[11] Although at that time the applicant expressed some uncertainty about whether the extension would take effect under the “former Act or the new Act”,[12] the parties in the present proceedings agreed, and the Tribunal concurs, that the new Act applied i.e. the Planning Act.

    [11] Page T868

    [12] Page T868

  1. The consequence of the Planning Act applying was that on 2 April 2009, before the end of the period stated in the approval within which the development was to be completed, i.e. before the end of the prescribed period as defined in s 184(4) – “the time stated in the approval for finishing the development” – the applicant made an application to extend the time for finishing the development pursuant to s 184(3).

  1. On 23 April 2009, that application was granted and the prescribed period under s 184(4)(a) was extended to 10 April 2011.[13]

[13] Page T868

  1. As stated above, on 4 February 2011, the respondent approved, in part, an application to amend the Initial Approval, which brought about the Amendment C Approval. This amendment was effected under ss 197 and 198 of the Planning Act.[14]  These provisions state as follows:

    [14] Page T143-145

    197Applications to amend development approvals

    (1) This section applies if—

    (a)the planning and land authority has given development approval for a development proposal; and

    (b)the development proposal changes (the changed development proposal) so that it is not covered by the development approval; and

    (c)section 198C (When development approvals do not require amendment) does not apply to the changed development proposal.

    NoteIf the development proposal changes in accordance with the development approval condition requiring the change, the change is covered by the approval, so this section does not apply.

    (2)An approval holder may apply to the planning and land authority to amend the development approval so that it approves the changed development proposal.

    (3)An application under subsection (2) must—

    (a)   be in writing signed by the applicant; and

    (b)   if the application is made by someone other than the lessee of the land to which the application relates, be signed by—

    (i)if the land to which the application relates is subject to a lease—the lessee of the land; or

    (ii)if the land to which the application relates is public land or unleased land—the custodian for the land; or

    (iii)in any other case—the planning and land authority.

    (4)A person who signs an application under subsection (3) (b) (i) is taken to be an applicant in relation to the application.

    198Deciding applications to amend development approvals

    (1)In deciding whether to amend a development approval in accordance with an application under section 197, the planning and land authority must consider the application, and take action in relation to the application, as if—

    (a)the development originally approved had been completed; and

    (b)the application for amendment were an application for approval of a development proposal (the proposed development) to change the completed development to give effect to the amendment.

    Example

    Philip has development approval (the original approval) to build a house.  Philip starts to build the house, but discovers that he needs an extra room in the house.  He applies to amend the original approval.

    In considering whether to amend the original approval, the planning and land authority must treat the application to amend as if the house has been built in accordance with the original approval, and the application is for approval to add an extra room.  This means the authority must assess the application in the assessment track that would apply to an application to add an extra room, and any requirement to notify agencies or publish the application would have to be followed.

    ...

    (2)However, section 162(3) (Deciding development applications) does not apply to the application.

    (3)The planning and land authority must refuse to amend the development approval if satisfied that—

    (a)if the original proposal was in the code track—the changed development proposal would be in the merit track or impact track; or

    (b)if the original proposal was in the merit track—the changed development proposal would be in the impact track; or

    (c)the changed development proposal would be in breach of a condition on the approval imposed (rather than confirmed or varied) by a court or tribunal.

    (4)Also, the planning and land authority must refuse to amend a development approval unless satisfied that, after the amendment, the development approved will be substantially the same as the development for which approval was originally given.

    (5)To remove any doubt, only the application for the amendment need be publicly notified if—

    (a)public notification of the proposed development is required under the assessment track that applies to the proposed development; and

    (b)the requirement to publicly notify the application is not waived under section 198B.

THE PARTIES’ CONTENTIONS

  1. In summary, the applicant submitted that the stop notice was wrongly issued because there is a development approval in force in relation to the Land because:

    1. The Initial Approval has not lapsed.  This is so because the Amendment C Approval engenders consequential amendments to clause 10 of the Initial Approval so that the Initial Approval does not lapse until 4 February 2013, that is, 2 years after the date of the Amendment C Approval (“the Consequential Amendment Contention”);
    1. Alternatively, the applicant submitted that the Amendment C Approval is separately an approval under the Planning Act which does not lapse until 4 February 2013, being two years after the date of the Amendment C Approval (“the New Approval Contention”); or
    1. Alternatively, the applicant submits that clause 10 of the Initial Approval creates a power to extend time separate from that contained in s 184 of the Planning Act, and that this power is not constrained by the s 184 limitation that an application be made prior to the expiration of the period (“the Freestanding Power Contention”). The Tribunal can now exercise the power to extend time.

  1. The applicant further contended that the Initial Approval and the Amendment C Approval (the approvals) are statutory instruments, and therefore the interpretive principles contained in the Legislation Act 2001 (ACT) (the Legislation Act) apply to the approvals.

  1. The applicant’s and the respondent’s arguments are grouped sequentially by issue below.  Thereafter, the Tribunal will consider each issue in turn.

The Consequential Amendment Contention

  1. The applicant submitted that the Amendment C Approval amended clause 10 of the Initial Approval such that the phrase “the date of this approval” in that clause must be read as “the date of this approval as amended”.  This contention is based on the following submissions:

    1. When an instrument is amended by a later instrument, the two are regarded as one connected and combined statement of the will of, in this case, the respondent: Commissioner of Stamps v Telegraph Investment Co Pty Ltd.[15]

      2. [15] (1995) 184 CLR 453

    1. In accordance with these principles, the Initial Approval and the Amendment C Approval when read as a combined statement will contemplate that the development as amended will be built, and therefore that the Initial Approval itself is amended.
    1. Similarly, the phrase “the date of this approval” in clause 10 of the Initial Approval must be read in light of the Amendment C Approval as meaning “the date of this approval; as amended” - namely, 4 February 2011.
    1. To read otherwise in these circumstances would be to deny the Amendment C Approval and the approvals read together any practical effect because it would have required the completion of the vast majority of the approved development work in a period of 66 days between the date of the Amendment C Approval (4 February 2011) and the original date for completion as extended (10 April 2011) - a practical impossibility and an absurd result.
    1. An interpretation of a statutory instrument that would result in the instrument having virtually no practical effect is to be avoided: Minister of State for Resources v Dover Fisheries Pty Ltd.[16]

      2. [16] (1993) 43 FCR 565 at 574

    1. An interpretation that the connected and combined will of the respondent (as at the date of the Amendment C Approval) was to approve the construction of the approved works in a feasible timeframe is to be preferred to an interpretation that the respondent intended to approve the construction of works in circumstances where that construction was impossible.
    1. The Amendment C Approval must therefore be taken to have consequentially amended clause 10 of the Initial Approval, so that the meaning of the clause is, in practice, as follows:

That the approved development as amended shall be completed within 24 months from the date of this approval as amended [4 February 2013] or within such further time as may be approved in writing by the Planning and Land Authority.

  1. In relation to the consequential amendment contention, the respondent argued that:

    a.The Amendment C Approval does not change the timeframe within which the works were to be completed.

    b. Sections 197 and 198 of the Planning Act do not provide for an
             extension of time within which to complete works.

    c.       There was no implied extension of time as such an extension is
             subject to s 184(2)(e)(ii) of the Act.

    d.       Any “practical effects” resulting from the applicant obtaining approval
             to build in accordance with the amended plans and the timeframe in
             which to do so were matters for the applicant. It was at the applicant’s
             initiative that the amendment was approved.

The New Approval Contention

  1. In the alternative, the applicant contended that the Amendment C Approval is a development approval in its own right and therefore s 184 of the Planning Act applies separately to the Amendment C Approval so that the Amendment C Approval is on foot for two years to 4 February 2013. This contention was based on the following submissions:

      1. Section 197(2) of the Planning Act provides as follows:

    An approval holder may apply to the planning and land authority to amend the development approval so that it approves the changed development proposal.

    b.A construction of a statute in which all clauses, sentences, and words are rendered useful and pertinent is to be adopted in preference to any other interpretation: Commonwealth v Baume;[17] Project Blue Sky Inc v Australian Broadcasting Authority.[18]

    c.In order for the final subclause of s 197(2) – “so that it approves the changed development proposal” – to have some work to do, s 197(2) must be interpreted to mean that the approval of the amendment application is a new approval of the changed proposal rather than a mere amendment of the previously approved proposal.

    d.Section 184 applies to the Amendment C Approval so that it does not expire until two years after the day the approval takes effect – namely, 4 February 2013.

    e.This interpretation is consistent with s 198(1), which requires a decision-maker in respect of an application under s197 to take action as if the development initially approved had been completed and the application for amendment were an application for approval of a development proposal to change the completed development.

    [17] (1905) 2 CLR 405

    [18] (1998) 194 CLR 355

  2. The respondent contended that:

    a.The Amendment C Approval was an amendment of DA200703503. It was a decision made under s 198 of the Planning Act, in response to an application of s 197 of the Planning Act. There was neither an application for “development approval”, nor a grant of “development approval”. Section 197(2) provides, for an application to amend “the” development approval, and s 198 provides for a decision to amend “a development approval in accordance with an application under s.197”.

    b.Thus, the decision to amend DA200703503 was not, of itself, a development approval.

The Freestanding Power Contention

  1. In the alternative, the applicant contended that clause 10 of the Initial Approval vested in the respondent an ability to extend the time for completion of the development that is separate from and additional to the power contained in


    s 184(3) of the Planning Act:

    a.The words “or within such further time as may be approved...” are not merely explanatory and from part of the statutory instrument itself.

    b.Those words must be construed as having meaning and practical effect.

    c.Interpreting those words to be a mere reference to the power to extend time in s 184 would not give those words any work to do that was not already done by s 184, together with the note to clause 10 which refers the reader to s 184 (or its equivalent in the repealed Act which was in force at the time).

    d.In order for those words to have practical effect, they must be construed as giving the respondent a separate power to approve a further time.

    e.This separate clause 10 power is not constrained by the limiting words of s 184(3) that requires any application to extend to be made prior to the approval’s lapse. Section 151C(3) of the Legislation Act therefore grants to the respondent the power to extend the time for completion of the development irrespective of whether the approval has lapsed.

  2. The respondent contended that:

      1. Clause 10 of the development approval dated 4 October 2007 did no more than:

    i.specify, as a condition of approval, the period for completion of the approved development; and

    ii.note the respondent’s power (available at the time under ss 251 and 252 of the Land Act on application) to extend time for completion of the approved development. Such is clear from the “Notes” that appear with clause 10.

      1. There is no power under clause 10 of the development approval to extend the period for completion, and there never was.
      1. Concerning a power generally to extend time, any power must be exercised according to the applicable legislation.
      1. The Land Act was repealed in 2007. The development approval was thereafter taken to be an approval under the Planning Act. The subject of time periods within which a development must be started and finished, including an extension of time to finish, is governed by s 184 of the Planning Act. There is otherwise no power to extend time.
      1. The applicant did not apply to ACTPLA for an extension of time to finish the development before the development approval lapsed on 10 April 2011, meaning before “the end of [the] prescribed period” per
        s 184(3) and (4)(a) of the Planning Act.
      1. The decision maker did not have power to extend time within which the applicant could finish the development, whether that claimed power existed under clause 10 of the development approval or under any legislative provision.  Where the Tribunal stands in the shoes of the decision maker, exercising review of Mr Apps’ decision, it too does not have power to extend time.

CONSIDERATION OF THE ISSUES

The Consequential Amendment Contention

  1. This argument asserts that the Amendment C Approval amended clause 10 of the Initial Approval such that the phrase “date of this approval” in that clause must be read as “the date of this approval as amended”.

  2. The applicant’s argument on this point fails because the provisions of the Planning Act which deal with amendment (ss 197 and 198 of the Planning Act) do not regulate the duration of development approvals. The relevant provisions are in different divisions of the Planning Act. Division 7.3.9, where s 184 is situated, deals with the duration of development approvals. Division 7.3.11 deals with correction and amendment of development approvals. The relevant provisions which regulate the Amendment C Approval, ss 197 and 198, are situated in this division. Although the words of an Act must be read in the context of the Act as a whole,[19] in interpreting the words of the Planning Act, it is appropriate to take into account the structure of that Act, and in particular that it is divided into divisions that deal with different subject matters.[20] 

    [19] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]

    [20] In re The Commercial Bank of Australia Ltd (1893) 19 VLR 333; Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011), at [4.4], p118 – 119

  1. The Amendment C Approval makes no express mention of an extension of time for the completion of the development. Although it is not inconceivable that a condition to this effect could be imposed by an express condition in the Amendment C Approval because clause 10 of the Initial Approval operated to impose a timeframe which might be amended, this did not happen. Nor could such a condition be implied so as to potentially conflict with the comprehensive provisions of Division 7.3.9 of the Planning Act which regulate the duration of development approvals.

  2. Moreover, an express extension of time was granted on 23 April 2009. The parties agree that, as a matter of law, s 184 of the Planning Act applied to this extension of time even though at the time Mr Butt and Mr Buddhadasa were not clear which legislative regime operated.

  3. Although the Tribunal accepts the applicant’s arguments that the Initial Approval and the Amendment C Approval constitute statutory instruments, there is no express extension of time to complete the development in the Amendment C Approval and an attempt to imply an extension of time into an amendment granted under ss 197 and 198 of the Planning Act is potentially inconsistent with the express provisions of Division 7.3.9 the Planning Act, in particular s 184, which determines when a development approval ends. Although, as will be discussed below, there are gaps in the coverage of s 184, a purposive reading of its provisions indicates that it has operated to end the development approval.

  4. The Tribunal notes the applicant’s arguments that to read the amended development approval without the implied extension of time would be to deny the Amendment C Approval from having any practical effect because it would have required the completion of the vast majority of the approved development work in a period of 66 days between the date of the Amendment C Approval (4 February 2011) and the original date for completion as extended (10 April 2011) which is a practical impossibility and an absurd result.  Relying on Minister of State for Resources v Dover Fisheries Pty Ltd,[21] (Dover Fisheries), the applicant argued that the Tribunal should therefore avoid an interpretation that would result in the instrument having virtually no practical effect.  However, Dover Fisheries is distinguishable because provisions in the case gave rise to “concurrent contradictory obligations”[22] which required an authorised officer to simultaneously suspend a permit and to revoke it.[23]  In this situation, there is not necessarily an overlap between the two functions of amending a development approval and, separately, seeking an extension of time to undertake that works that formed part of the amended development approval.

    [21] (1993) 43 FCR 565

    [22] (1993) 43 FCR 565 at 574

    [23] (1993) 43 FCR 565 at 572

  5. Further, the interpretation of the provisions regarding correction and amendment of a development approval under Division 7.3.11 of the Planning Act would not necessarily contemplate engagement with a separate process of seeking an extension of time to complete the development approval under s 184(3). There is no evidence that the applicant or the respondent turned their minds to the duration of the development approval during the Amendment C Approval process. Therefore, there is no factual basis from which it could be said that an extension of time should be implied, as opposed to the respondent (if it even turned its mind the question) merely assuming that the applicant would attend to an extension separately.

The New Approval Contention

  1. On this argument the applicant contended that the Amendment C Approval is a development approval in its own right and therefore s 184 of the Planning Act applies to the Amendment C Approval so that the new development approval is on foot for two years to 4 February 2013.

  2. The question of whether the Amendment C Approval can amount to a new development approval in its own right is dependent upon the construction of ss 197 and 198 of the Planning Act. Section 197 contemplates that the power to amend after a development approval has been given arises where, relevantly:

    a. the respondent has given development approval for a development


        

    proposal; and

    b. the development proposal changes so that is not covered by the


        

    development approval.

  3. Section 192(2) allows the approval holder to amend the development approval so that it is congruent with the new development proposal.  This will result in the approval of the changed development proposal. 

  4. The respondent pointed to several examples of the wording of Division 7.3.11 of the Planning Act which demonstrated that the provisions are predicated upon a process for amendment of an existing development approval rather than the creation of a new development approval. For example, a new development approval might contemplate a new development application but this understanding would be rebutted by s 198(2), which states that s 162(3) (Deciding development applications) does not apply to the application for amendment. Section 197(4) also obliges the respondent to refuse to amend a development approval unless satisfied that, after the amendment, the development approval is substantially the same as the development for which the approval was originally given.

  5. The respondent also relied upon the Explanatory Statement to the Planning and Building Legislation Amendment Bill 2011, which provides a further example, stating as follows:

    New section 198(2) is to make it clear, explicit (sic) that the statutory time frames for deciding original development applications do not apply to applications for amendment of already granted development approvals. (emphasis added)

    The Tribunal may consider this material because the applicant has alleged an ambiguity in the legislation, and therefore the Tribunal may examine the Explanatory Statement in order to work out the meaning of the provisions.[24]

    [24] Section 142 Legislation Act

  6. There is merit in the applicant’s argument that points to the drafting of s 198(1) which requires the respondent in deciding whether to amend a development approval under s 197 to consider the application, and take action in relation to the application; as if

    (a)      the development originally approved had been completed; and

    (b) the application for amendment were an application for
     approval of the development proposal (the proposed development) to change the completed development to give effect to the amendment. 

  7. These provisions lend weight to the applicant’s argument that a new development approval is contemplated by the application to amend. However, the respondent argued in reply that s 198(1) creates a hypothetical construct and the purpose of the hypothesis is to ensure that stipulations or conditions imposed in an original development approval are not undermined by a subsequent application for approval.

  8. The Tribunal must prefer an interpretation that would best achieve the purpose of the Act[25] and in the Tribunal’s view an interpretation that treats the amendment as an adjunct to the original development approval and not as an independent development approval is more consistent with the text and purpose of the Planning Act, particularly Chapter 7. This conclusion is based upon the text of ss 197 and 198, and certain purposes that are embedded in Division 7.3.11, such as the policy to confine the amendment power so that it does not undermine the development application processes, including elements such as public consultation. There is also the related desirability of ensuring that the structures that are built pursuant to development approvals comply with those approvals and providing a process to amend the approval to ensure that if a development proposal evolves it may be properly captured by an amended development approval.

    [25] Section 139 Legislation Act; Haureliuk v Furler (2012) 6 ACTLR 151

  9. The Tribunal therefore concludes that the Amendment C Approval did not operate as a new development approval. 

The Freestanding Power Contention

  1. In this argument, the applicant examined the effect of the words “or within such further time as may be approved ...” in clause 10 of the Initial Approval. The applicant contended that these words must be construed as having meaning and practical effect and they operate, not merely to advise the reader of the power to extend time in s 184 of the Planning Act, but to confer upon the respondent a separate power to approve a further period of time within which development may be completed. This, the applicant argues, is a freestanding power which could have been exercised by the respondent and may now be exercised by the Tribunal standing in the shoes of the respondent.

  1. In response to this argument the respondent raised the question of whether this power was exercisable by Mr Apps when he issued the stop notice pursuant to s 53 of the Building Act. It is this decision that the applicant has asked the Tribunal to review. The respondent argued that the alleged freestanding power might not necessarily be conferred upon Mr Apps as decision maker and, presumably as a consequence, there is some uncertainty about the jurisdiction of the Tribunal because its jurisdiction is enlivened by a reviewable decision emanating from s 53 of the Building Act. In reply, the applicant pointed to Australian Securities & Investments Commission v Donald[26] and the proposition that, for the purposes of reviewing the reviewable decision, the Tribunal may exercise some powers that are conferred upon the decision maker which do not fall strictly within its jurisdiction.

    [26] (2003) 136 FCR 7; [2002] FCA 1174

  2. However, for the purpose of resolving the Question, the issue of who might exercise a freestanding power was put to one side. The more fundamental question is whether such a freestanding power exists. The respondent argued there was no power under clause 10 of the development approval to extend the period for the completion of the development and there never was. The respondent advised the Tribunal that clause 10 is an example of a condition that was placed in development approvals pursuant to s 245(3)(c) of the Land Act to ensure that developments took place within a certain period of time. The respondent advised that this practice preceded the current legislative framework.

  3. It goes without saying that administrative decision makers need to be cautious about the ambit of their powers.  In this case, the relevant powers emanate from legislation, therefore the decision maker must be able to point to the power upon which he or she relies and must be able to establish that he or she is invested with that power. 

  4. As stated above, an express power to extend time is conferred by s 184 of the Planning Act. After the first application for the extension of time made by the applicant on 23 April 2009, no further extensions under that provision were sought until 1 May 2012 when Mr Streatfeild requested a further extension of time on behalf of the applicant. This, however, was outside the duration of the extension given by Mr Buddhadasa on 23 April 2009, which operated until 10 April 2011. Section 252 of the Land Act and s 184(3) of the Planning Act require that the application be made during the currency of the original period specified for the completion of the development or the currency of subsequent extensions of time.

  1. No power to extend time at large is stated in the Planning Act, nor is a general discretion to extend time given to the respondent or the Tribunal under the same legislation. Therefore there is no general “power to extend the time for doing the thing” pursuant to s 151C of the Legislation Act, as opposed to the specific power conferred upon the respondent by s 184(4) of the Planning Act, which must be exercised within the parameters established by that provision. Therefore, s 151C of the Legislation Act does not apply.

  2. In the Tribunal's view, the words “or within such further time as may be approved ...” in clause 10 are contingent and contemplate further extensions that might be sought by the applicant under s 184 of the Planning Act and its predecessors. The notes to clause 10 explain the context of its operation.


    Note 1 is advisory and Note 2 points the parties to the source of the power in s 252 of the Land Act (the predecessor to s 184) to grant an extension and advises the time frame within which an application for such an extension must be made, i.e. within the original period specified for completion.

  3. The Tribunal is not satisfied that a free standing power to extend the time to complete the development approval exists and this argument by the applicant therefore also fails.

Does section 184 of the Planning Act operate to end the development approval?

  1. As discussed above, none of the applicant’s arguments have established that an extension of time has been secured as a consequence of an amendment to the Amendment C Approval or a new development approval or pursuant to the alleged freestanding power to extend the time for completion of the development. 

  2. However, in order for the development approval to lapse, the approval must be ended by operation of s 184 of the Planning Act. If, for some reason, s 184 failed to end the development approval, then s 188 of the Planning Act operates to preserve the approval. Therefore, in order to give an affirmative answer to the question of whether the development approval has lapsed, it must be established that s 184 has ended the development approval.

  3. There are aspects of the drafting of s 184 of the Planning Act that create uncertainties in its application in the present case, therefore on 31 August 2012 the Tribunal sought submissions from the parties regarding if and how the development approval had been ended under s 184. The submissions were filed on 10 September 2012 and 14 September 2012.

  4. The parties agreed that the only relevant subsection of s 184 that might apply in the present case is s 184(2)(b) which states that a development approval to which this section applies ends if:

    (b) the development or any stage of the development has not finished by the end of the period stated in the approval; … .

  5. Unlike some other subparagraphs of s 184, this provision does not expressly contemplate that an extension might have been given which has the effect of extending the period stated in the approval.  By way of comparison, s 184(2)(e) makes 2 references to extensions of time.  It applies to the situation where no time has been stated in the approval for finishing the development.  The subparagraph states that the development approval ends:

    (i)2 years after the day the development begins; or

    (ii)if an extension of the 2-year period is granted under this section—at the end of the extended period; or

    (iii)if an appeal is made to a court in relation to the approval—

    (A)2 years after the day the appeal ends; or

    (B) if an extension of the 2-year period is granted under this section—the extended period after the appeal ends; or...

  6. It is clear in the present case that an extension of time was sought before the end of the period stated in the approval, which is the period stated in clause 10 of the Initial Approval. As discussed above, the applicant applied for an extension of time pursuant to s 184(3). This application was made during the “prescribed period” in s 184(4) because it was made during the time stated in the approval for finishing the development under s 184(4)(a). The extension was granted by Mr Buddhadasa pursuant to the power conferred upon the respondent under s 184(3).

  7. However, the power to extend under ss 184(3) and 184(4), and any extensions given under those provisions, is not linked to the operation of the ending of the development approval under s 184(2)(b). This is problematic, because extensions are expressly referred to in s 184(1)(e) in subparagraphs (ii) and (iii)(B). The absence of an express reference to the extension of the development approval in s 184(2)(b) can lead to 2 possible consequences:

    a.   the extension has no effect and s 184(2)(b) ends the development approval at the end of the period stated in the approval, in this case, 4 October 2009.  This would have the consequence that the purpose of granting of an extension of time would be defeated;

    b.   the granting of the extension took the development approval outside the operation of s 184(2)(b) because that provision does not contemplate an extended development approval and s 188 operates to continue the development approval because it has not been successfully ended by s 184.  In other words, on this reading, there is a gap in s 184 which means that it is ineffective to end the development approval. 

  1. In order to resolve this conundrum, the Tribunal has considered the parties’ submissions.  Firstly the respondent argued that the Tribunal must read ss.184(2)(b), 184(3) and 184(4)(a) together, and it must follow that if an application to extend the period stated in the approval (meaning the relevant prescribed period) is made and granted, the approval does not end until the end of the extended prescribed period. Such an approach, argued the respondent, accords with the Explanatory Statement to the Planning and Development Bill 2006, at page 41 concerning clause 179 (which became s.184 on commencement of the 2007 Act), which stated:

    Clause 179 This clause applies to a development approval other than an approval, or part of an approval that consists of a lease variation or a development approval or part of a development approval that relates to the use of land, or a building or structure on the land, including beginning a new use or a change of use. Subclause (2) sets out when such development approvals end.  Development must start within 2 years of the granting of the approval (or such other period stated in the approval).  Development must finish within two years of the beginning of the development (or such other time stated in the approval).  The authority may extend the time for finishing the development on application as per subclause (3) and (4).  It is not possible to apply for an extension of time to start a development.  There are public safety reasons for permitting extension of time to finish, the same reasons do not apply to starting a development.

  2. The applicant agreed with this aspect of the respondent’s submissions and added:

    12 The essence of the respondent's submission (with which the applicant agrees) is that paragraph 184(2)(b) should be read as having similar effect to (2)(e), as follows:

    (b) if a period is stated in the approval for finishing the development–the development is not finished–

    (i)by the end of the period stated in the approval, or

    (ii)if an extension of the period stated in the approval is granted under this section–at the end of the extended period.

    13The operation and effect of paragraph 184(2)(b) is clear if its meaning is as above.

    14The operation and effect of paragraph 184(2)(b) is substantially less clear if its meaning is not as above; that is, if failure to make reference to the possibility of extension of the period under subsection (3) was deliberate. Such an interpretation would have a number of odd effects:

    (a)     First, an extension under subsection (3) would not prevent the development from ending pursuant to paragraph 184(2)(b) at the unamended time;

    (b)     Second, and consequently, the power to extend the time for finishing the development in paragraph 184(4)(a) is effectively impotent;

    (c)     Third, and consequently, the time specified as being the time of extension would be irrelevant by reason that even at the expiry of this time there is no provision akin to subparagraph 184(2)(e)(ii) that provides the approval ends at the end of the extended period.

    15The applicant agrees with the characterisation by the respondent of these results as capricious and illogical. The applicant therefore submits that the apparent dichotomy created by the differing wordings of paragraphs 184(2)(b) and (2)(e) is illusory, and they ought be read as having similar effect.

  3. It is clear that the Tribunal must interpret legislation to avoid capricious and illogical outcomes. It is also clear that the legislative purpose of s 184 is to ensure that all development approvals only operate for a defined period of time. It is incumbent upon the Tribunal to read s 184(2)(b) in the context of the whole of both s 184 and the Planning Act pursuant to s 140 of the Legislation Act. Therefore, it is necessary to read into s 184(2)(b) the underlined text below:

    (2) A development approval to which this section applies ends if— …

    (b)       the development or any stage of the development has
               not finished by the end of the period stated in the
               approval or if an extension of the period stated in the
               approval is granted under this section—at the end of the
               extended period; …

  4. Whilst this interpretation avoids capricious and illogical results and best achieves the purpose of the Planning Act, it is preferable that the portion of underlined text or its equivalent is expressly stated in s 184 of the Planning Act. This is particularly important because s 184 acts as a limitation on the rights of the approval holder and duration of those rights must be clearly expressed: DJ v RHS.[27]

Conclusion

[27] 182 FLR 76; [2004] ACTSC 12

  1. The Tribunal concludes that the development approval number 200703503 has lapsed because it has been ended pursuant to the operation of s 184 of the Planning Act. The Question is therefore answered in the affirmative.

………………………………..

Professor P. Spender

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A



FILE NUMBER:

AT 12/40

PARTIES, APPLICANT:

Eric Graham Butt

PARTIES, RESPONDENT:

ACT Planning and Land Authority

PARTIES, PARTY JOINED

ACT Heritage Council

COUNSEL APPEARING, APPLICANT

COUNSEL APPEARING, RESPONDENT

Mr G McCarthy

SOLICITORS FOR APPLICANT

Meyer Vandenberg

SOLICITORS FOR RESPONDENT

ACT Government Solicitor

SOLICITORS FOR PARTY JOINED

n/a

TRIBUNAL MEMBERS:

Professor P. Spender, Presidential Member

DATES OF HEARING:

16 August 2012

PLACE OF HEARING:

Canberra

PART B

RECOMMENDATION:

FULL REPORT ( )       CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS:


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