Capital Property Projects (ACT) Pty Ltd and Ors and Act Planning and Land Authority and Ors
[2007] ACTAAT 7
•5 April 2007
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:CAPITAL PROPERTY PROJECTS (ACT) PTY LTD & ORS AND ACT PLANNING & LAND AUTHORITY & ORS [2007] ACTAAT 7 (5 APRIL 2007)
AT06/72, 73 & 75
Catchwords: Land and planning – application to strike out applications for review of decision – whether applicants excluded from appealing pursuant to schedule 7 item 11 of the Land (Planning and Environment) Regulation 1992 – effect of amending legislation
Administrative Appeals Tribunal Act 1989, s 43
Australian Capital Territory (Planning and Land Management) Act 1988, s 25
Australian Capital Territory (Self-Government) Act 1988, s 28
Land (Planning and Environment) Act 1991, ss 237, 276, 282, 288A
Land (Planning and Environment) Legislation Amendment Act 2007
Land (Planning and Environment) Regulation 1992, Sch 7
Capital Property Projects (ACT) Pty Ltd & Ors v Planning & Land Authority & Ors [2006] ACTSC 122 (15 December 2006)
JM Blicharz v Minister for Urban Services and L & I Horvarth [2000] ACTSC 45 (2 June 2000)
Re Adams and Tax Agents’ Board (1976) 12 ALR 239
Tribunal:Mr B Hatch, Senior Member
Date:5 April 2007
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT06/72, 73 & 75
LAND AND PLANNING DIVISION )
RE: CAPITAL PROPERTY
PROJECTS (ACT) PTY
LIMITED
Applicant in AT06/72
RE: CANBERRA
INTERNATIONAL
AIRPORT PTY LIMITED
Applicant in AT06/73
RE: BRAND DEPOT PTY
LIMITED
Applicant in AT06/75
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: DIRECT FACTORY
OUTLETS CANBERRA
PTY LIMITED
CAPITAL PLANNERS
Parties Joined
CORRECTION OF ERROR
Tribunal : Mr B Hatch, Senior Member
Date : 10 April 2007
Pursuant to section 44A of the Administrative Appeals Tribunal Act 1989 the reasons for decision in these proceedings dated 5 April 2007 is amended in accordance with the following:
Page 2, paragraph 4, line 1:
Delete “49” and insert “48”.
…………………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT06/72, 73 & 75
LAND AND PLANNING DIVISION )
RE: CAPITAL PROPERTY
PROJECTS (ACT) PTY
LIMITED
Applicant in AT06/72
RE: CANBERRA
INTERNATIONAL
AIRPORT PTY LIMITED
Applicant in AT06/73
RE: BRAND DEPOT PTY
LIMITED
Applicant in AT06/75
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: DIRECT FACTORY
OUTLETS CANBERRA
PTY LIMITED
CAPITAL PLANNERS
PTY LIMITED
Parties Joined
DISMISSAL OF APPLICATIONS PURSUANT TO SECTION 43(5) OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1989
Tribunal : Mr B Hatch, Senior Member
Date : 5 April 2007
It appears to the Tribunal that the decision in respect of which the applications have been made to the Tribunal for review are not reviewable by the Tribunal.
Pursuant to section 43(5) of the Administrative Appeals Tribunal Act 1989, the Tribunal dismisses the applications without proceeding to review the decision.
……………………
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT06/72, 73 & 75
LAND AND PLANNING DIVISION )
RE: CAPITAL PROPERTY
PROJECTS (ACT) PTY
LIMITED
Applicant in AT06/72
RE: CANBERRA
INTERNATIONAL
AIRPORT PTY LIMITED
Applicant in AT06/73
RE: BRAND DEPOT PTY
LIMITED
Applicant in AT06/75
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
AND: DIRECT FACTORY
OUTLETS CANBERRA
PTY LIMITED
CAPITAL PLANNERS
PTY LIMITED
Parties Joined
REASONS FOR DISMISSAL OF APPLICATIONS PURSUANT TO SECTION 43(5) OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1989
5 April 2007 Mr B Hatch, Senior Member
This is a decision with respect to an application to dismiss applications for review filed by the applicants in matters AT06/72, 73 and 75. The application is made pursuant to section 43(5) of the Administrative Appeals Tribunal Act 1989 (“the AAT Act”).
2. The first basis of the application as at 24 October 2006 was that the applicants were excluded from appealing against the development due to item 11 of schedule 7 of the Land (Planning and Environment) Regulation 1992 (“the Land Regulations”). The second basis is that the applicant does not have standing pursuant to section 237 of the Land (Planning and Environment) Act 1991 (“the Land Act”). The applicants had applied for review pursuant to section 276 of the Land Act.
3. The first issue is whether the applicants are persons who interests are affected within the meaning of section 237 of the Land Act. This is what has in this matter been referred to as the “standing issue” and it is not a subject of the hearing so far and this decision does not deal with the issue of standing of the applicants. That may be an issue for determination at a later stage.
4. The other basis is that the block in question which is Block 8 Section 49 Fyshwick is an industrial area. It is common ground that the block of land and the proposed development is in an industrial area as that term is defined under the Territory Plan. This Tribunal is not bound by any agreement which the parties may come to but the fact that this block is in an industrial area so defined is not in contention and I so find that it is.
5. As a result of this strike out application the applicants applied to the Supreme Court for a declaration that item 11 of the Land Regulations was invalid. That matter was heard before the Supreme Court and a decision in that matter of Capital Property Projects (ACT) Pty Ltd & Ors v Planning & Land Authority & Ors [2006] ACTSC 122 was handed down on 15 December 2006. The Court declared that the regulation constituted by section 43(1) and schedule 7 item 11(c) of the Land (Planning and Environment) Regulation 1992 (ACT) is invalid. As a result of the Supreme Court decision, the only issue at that stage left in relation to the strike out application was the standing issue.
6. On 1 March 2007 the Legislative Assembly passed amending legislation. That is known as the Land (Planning and Environment) Legislation Amendment Act 2007 (“the amending Act”). The amending Act is a piece of legislation which is in a form not often seen. The Legislative Assembly amended the legislation to make item 11 of schedule 7 of the Regulations always valid. This is done firstly by amending section 282(1)(e) and (f) of the Land Act. Previously, in particular, section 282(1)(e) had said:
282 Regulations for pt 6
(1) A regulation may make provision for—
………..
(e)exempting a development of a kind specified by regulation, either absolutely or subject to conditions, from the application of this part or any provision of this part; and
It was amended to say:
282 Regulations for pt 6
(1) A regulation may make provision for—
…………..
(e)exempting development from the application of this part or a provision of this part; and
Thereafter, the Assembly added a section 288A to the Land Act. That section states:
288A Regulations amending Land (Planning and Environment)
Regulation
(1) This section applies in relation to the following regulations:
(a)the Land (Planning and Environment) Amendment Regulation 2006 (No 2) SL2006-13;
(b)any other regulation made, or purportedly made, under section 282 (1) (e) or (f) before the day section 282 (5) commences.
(2)The regulation is taken, for all purposes, always to have been validly made under this Act.
(3)This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.
(4) This section expires 1 year after the day it commences.
It is instructive to note that the Assembly went to the extent of stating that the “Regulation is taken, for all purposes, always to have been validly made under this Act”.
7. The submission put by the respondent in support of the application to strike out the appeal was that the effect of the amending Act retrospectively cures the fault found by the Supreme Court. The respondent further argues that the only issue thereafter is whether the Regulation is inconsistent or repugnant in relation to the Australian Capital Territory (Planning and Land Management) Act 1988 (“the PALM Act”) of the Commonwealth. That issue arises from section 25 of the PALM Act which states:
(4) The laws shall include provision for:
(a) the procedure for making the plan and amendments of the plan, including a procedure for ascertaining and considering the views of the public;
(b) public notification of any directions given to the Territory planning authority by the Executive;
(c) the procedures for just and timely review, without unnecessary formality, of appropriate classes of decisions on planning, design and development of land; and
(d) requiring the Authority to:
(i) consult with the Authority about making the plan and any amendments; and
(ii) report in writing to the Executive on such consultations and the views expressed by the Authority.
The ACT Legislative Assembly is not able to make laws that are inconsistent with section 25 of the PALM Act (see section 28 Australian Capital Territory (Self-Government) Act 1988).
8. The respondent argues that this Tribunal cannot decide whether “the Regulations” is inconsistent or repugnant with the PALM Act.
9. The applicants have a contrary view. As I understood the applicants’ argument, the Legislative Assembly must ensure that appropriate classes of decisions remain the subject of review. The applicants relied particularly on the decision of Higgins J in JM Blicharz v Minister for Urban Services and L & I Horvarth [2000] ACTSC 45 (2 June 2000). His Honour said in that matter:
57. It therefore follows that the "principles" expressed in s29(2) of the ACT (PALM) Act apply to limit the powers of the Assembly and the Executive in relation, not only to matters relating to interests in land, but also to the planning and land management issues covered by the Land Act.
58. However, those "principles" are broadly expressed. They leave considerable scope for discretionary judgments. What is an "appropriate" class of decision or "just and timely" review thereof is a matter of policy and judgment on which minds might reasonably differ. It would, therefore, be unlikely that a decision by the Assembly or the Executive to exempt some classes of decision from review would, in itself, offend the principles contained in s29(2)(b) ACT (PALM) Act. It might be otherwise if the exemption was, for example, only for a particular developer or development (not relevantly distinguishable from any other) or if no meaningful notification was required for any proposal. It is possible to conceive of provisions which unquestionably would offend those principles. It does not seem to me that exemption of lease variation applications, whilst requiring notification of the physical development proposal the facilitate, offends s29(2)(b).
10. The applicants take Blicharz as authority that, by way of an example, the exclusion of entire geographical areas or zones without regard to relevant differences amongst developments would be arbitrary and thereby offend the PALM Act.
11. I disagree with the applicants’ submission in this regard. As was said by His Honour in Blicharz what may be an appropriate class of decision is a matter of policy and judgement on which minds might reasonably differ. Further, in Re Adams and Tax Agents’ Board (1976) 12 ALR 239, Brennan J sitting as the President of the Federal Administrative Appeals Tribunal stated as follows:
When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority upon it, the will of the legislature expressly conferring that authority would, at least for a time, be overridden. Moreover, that will would be overridden without judicial consideration. A consequence of such gravity throws doubt upon the proposition that an administrative body ought to consider the constitutional validity of a statue affecting its power.
The problem is one which can arise only where the power of the legislature is limited. It does not arise where, as in the United Kingdom, Parliament may constitutionally exercise plenary power. In the United States, however, the problem has received consideration and the view has been taken that administrative officers and agencies have “no power or authority to consider or question the constitutionality of an act of the legislature” (73 CJS 393, par 67). The arguments in support of that view (to which I shall later refer) are powerful to suggest that an administrative body ought not to refrain from acting upon a statute except in a clear case of constitutional invalidity. But at least in such a case the administrative body must surely be at liberty to refrain from acting. If it were otherwise, that is to say, if an administrative body were bound in law to assume the constitutional of a statute and were bound to act upon the assumption that the statute were valid (though it was not), the administrative body would be bound to the performance of unauthorized and perhaps wrongful acts. Yet the foundation upon which the legal control of administrative bodies is based is their obligation to keep within the limits of their lawful authority. That obligation is enforced by the courts. Under our Constitution those limits are set both by the Parliament and by the Constitution. As Latham CJ pointed out in Arthur Yates and Co Pty Ltd v Vegetable Sees Committee (1945) 72 CLR 37 at 64: “If …… acts are done under the supposed authority of an invalid law and those acts constitute a wrong or a breach of contract, then the invalid law does not provide any defence to the person acting in pursuance of it, and the ordinary rules of law with respect to tort or breach of contract are applicable”.
12. I take the decision in Adams to be that there cannot be a complete rule against an administrative body such as this concluding that some legislative instrument is ultra vires the Legislative Assembly. I do not consider it helpful to attempt to provide any sort of an example of possible occasions when this may occur. Suffice to say, on the face of it, this Regulation does not fall foul of the PALM Act. The Legislative Assembly has made a regulation that appropriate classes in this circumstance is defined by geographical region. Appropriate classes can be defined by numerous criteria. This case is a geographical region. In other cases it could be by type of development. Appropriate classes could be defined by numerous criteria used in conjunction.
13. The other submission urged on the Tribunal by the applicants was the decision of the Supreme Court in Capital Property Projects. That decision is subject to an appeal to the Full Court of the Supreme Court. The applicants rightly pointed out that declaratory orders of the Supreme Court are binding on the parties unless they are set aside. I find, however, that the orders made by the Supreme Court are with respect to regulations and statute which are not applicable in this matter. The Legislative Assembly has passed an amending Act and it is the amending Act which is to be applied in this matter.
14. This Tribunal is bound to follow the will of the legislature. There may be occasions as Brennan J points out in Adams where there is a clear case of constitutional invalidity in which case the administrative body “must surely be at liberty to refrain from acting”. The only other occasion would be where a court or proper jurisdiction such as the Supreme Court declares that a regulation or statute is invalid. That has occurred to an earlier piece of legislation but not the legislation that applies in this matter.
15. Pursuant to the amending Act appeals are excluded in relation to development of land in an industrial area. This development is in an industrial area. In the circumstances, I determine that the applicants have no right to seek review pursuant to section 276 of the Land Act. Accordingly, applications AT06/72, 73 and 75 are dismissed without proceeding to review.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NOS: AT06/72, 73 & 75
APPLICANTS: CAPITAL PROPERTY PROJECTS (ACT) PTY LTD (AT06/72); CANBERRA INTERNATIONAL AIRPORT PTY LTD (AT06/73); BRAND DEPOT PTY LTD (AT06/75)
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: DIRECT FACTORY OUTLETS CANBERRA PTY LTD
CAPITAL PLANNERS PTY LTD
COUNSEL APPEARING: APPLICANT: MR S AUSTIN QC
RESPONDENT: MR A ROBERTSON SC
PARTIES JOINED: MR J GRIFFITHS SC
SOLICITORS: APPLICANT: MALLESONS STEPHEN JAQUES
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED: MEYER VANDENBERG
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR B HATCH, SENIOR MEMBER
DATE/S OF HEARING: 23 MARCH 2007 PLACE: CANBERRA
DATE OF DECISION: 5 APRIL 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
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