Capital Property Projects (ACT) Pty Ltd v Planning & Land Authority
[2006] ACTSC 122
CAPITAL PROPERTY PROJECTS (ACT) PTY LTD & ORS v PLANNING & LAND AUTHORITY & ORS [2006] ACTSC 122 (15 December 2006)
PROPERTY DEVELOPMENT – ACT property development regime – Administrative Appeals Tribunal – review of decision to approve development – exemption from review by regulation – regulation not consistent with regulation-making power – exemption not made by kind of development but by area – regulation declared invalid.
Land (Planning and Environment) Act 1991 (ACT), s 222, s 229, s 230, s 245, s 275, s 276, Schedule 4 Part 4.1 Item 4, Part 6
Land (Planning and Environment) Regulation 1992 (ACT), s 43, Schedule 7 Item 11
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), s 25, s 29
Court Procedure Rules 2006, r 501
The Constitution, s 52
Seat of Government (Administration) Act 1910 (Cth)
National Capital Development Commission Act 1957 (Cth)
Buildings (Design and Siting) Act 1964 (Cth)
Interim Territory Planning Act 1990 (ACT)
Administrative Appeals Tribunal Act 1975 (Cth), s 27
Legislation Act 2001 (ACT), s 48, s 126, s 139
Human Rights Act 2004 (ACT), s 21, s 30
Land (Planning and Environment) Amendment Regulation 2006 (No. 2) (ACT)
Blicharz v Minister for Urban Services and Others (2000) 155 FLR 419
Kingsleys Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2006] ACTCA 9 (2 June 2006)
No. SC 865 of 2006
Judge: Gray J
Supreme Court of the ACT
Date: 15 December 2006
IN THE SUPREME COURT OF THE )
) No. SC 865 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:CAPITAL PROPERTY PROJECTS (ACT) PTY LIMITED
ACN 109 406 680
First Plaintiff
AND:CANBERRA INTERNATIONAL AIRPORT PTY LIMITED
ABN 14 080 361 548
Second Plaintiff
AND:BRAND DEPOT PTY LIMITED
ABN 26 117 285 079
Third Plaintiff
AND:PLANNING AND LAND AUTHORITY
First Defendant
AND:DIRECT FACTORY OUTLETS CANBERRA PTY LIMITED
ACN 115 065 935
CAPITAL PLANNERS ACT PTY LIMITED
ABN 92 060 394 194
Second Defendant
AND:ADMINISTRATIVE APPEALS TRIBUNAL of the AUSTRALIAN CAPITAL TERRITORY
Third Defendant
ORDER
Judge: Gray J
Date: 15 December 2006
Place: Canberra
THE COURT BY ORDER:
Declares that the regulation constituted by s 43(1) and Schedule 7 item 11(c) of the Land (Planning and Environment) Regulation 1992 (ACT) is invalid.
Direct Factory Outlets Canberra Pty Limited and Capital Planners ACT Pty Limited (DFO), the second defendants in these proceedings, applied to the first defendant, the Planning and Land Authority (PLA), for approval under s 230 of the Land (Planning and Environment) Act 1991 (ACT) (the Planning Act) for approval of a development that involves the erection of a bulky goods and factory outlet retail centre at Fyshwick in the Australian Capital Territory. The plaintiffs, Capital Property Projects (ACT) Pty Limited, Canberra International Airport Pty Limited and Brand Depot Pty Limited, are involved in a similar enterprise at the Canberra International Airport. As a consequence of PLA giving its approval to the development subject to conditions, the plaintiffs sought to have that decision reviewed by the Administrative Appeals Tribunal of the Australian Capital Territory (AAT), the third defendant and a submitting respondent save as to costs in relation to these proceedings.
Section 276 of the Planning Act provides for a review of decisions at the instance of objectors and third parties to approvals of an application to undertake a development. It has the heading “Review of decisions – objectors and third parties to approvals”. Subsections (1) and (2) of that section provide:
(1)A person who is qualified under subsection (2) may apply to the AAT for review of a decision of the relevant authority to—
(a)approve an application under section 230 or section 246A; or
(b)include a condition in an approval.
Note Section 245 deals with inclusion of conditions.
(2)A person is qualified to make an application under subsection (1) if—
(a)the person objected to the grant of the approval of the relevant application to undertake development under section 237; or
(b)the AAT is satisfied that the person had reasonable grounds for not objecting within the prescribed period.
The section essentially permits a review by objectors or those who had reasonable grounds for not objecting. The term “third parties” I take as describing and being limited to those objectors who qualify under s 276(2)(b).
The right to appeal given by s 276 to objectors and third parties is the subject of a limitation provided in s 43(1) of the Land (Planning and Environment) Regulation 1992 (ACT) (the Planning Regulation). That section provides:
43Exclusion of appeals by objectors and third parties – Act, s 276
(1)The Act, section 276 does not apply in relation to a decision of the relevant authority about a development listed in schedule 7.
Item 11 to Schedule 7 of the Planning Regulation provides this exclusion under the Schedule 7 heading Exclusion of appeals by objectors and third parties – Act, s 276:
Development on land in—
(a) the Civic centre area; or
(b) a town centre area; or
(c) an industrial area.
The development in respect of which PLA gave its approval is development on land in an industrial area. Accordingly, PLA and DFO took the point in the AAT proceedings that s 43 of the Planning Regulation exclude an application for review of the decision made by PLA in this case.
The proceedings
The proceedings in this court that have been brought by the plaintiffs seek declarations that s 43(1), (2) and Schedule 7 of the Planning Regulation are invalid or, alternatively, that item 11 of Schedule 7 of the Planning Regulation is invalid. The plaintiffs also sought a declaration that the AAT had jurisdiction to hear the proceedings brought by the plaintiffs against PLA and DFO.
Grounds of application
The grounds given in the originating application for these declarations related to what was said to be the invalidity of the regulations as a consequence of there being no power to make the regulations, that they are inconsistent with the Planning Act and the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (the PALM Act) and the common law. It is also asserted that the regulation was so unreasonable that it cannot be regarded as falling within the contemplation of the legislature in passing the Planning Act and/or the PALM Act and is not reasonably proportionate to the empowering provisions of those Acts.
Additional grounds
At the hearing of this matter, application was made to amend the originating application made to this court to add grounds that the declaration that the AAT has jurisdiction to hear the proceedings should be made on the basis that s 275 of the Planning Act and Schedule 4, Part 4.1, Item 4 of the Planning Act also gave the plaintiffs the right to bring proceedings seeking review. Section 275(1) of the Planning Act provides:
A person whose interests are affected by a decision mentioned in schedule 4, part 4.1, column 4 may apply to the AAT for review of the decision.
Schedule 4 part 4.1 provides for a decision under s 245 of the Planning Act which gives approval subject to conditions to be such a reviewable decision. Both PLA and DFO took the preliminary point in the AAT that the plaintiffs are not persons whose interests are affected as far as s 275 of the Planning Act is concerned. That is the point that is disputed by the plaintiffs.
The application to amend to raise this point in this court was opposed by the PLA and DFO. PLA and DFO took the view, that the amendment sought did not arise out of the invalidity argument in respect of the Planning Regulation, was a separate jurisdictional ground and should be determined by the AAT. However, the determination of this ground would become unnecessary should a declaration be made that s 43 of the Planning Regulation invalidly precluded a review by third parties. DFO acknowledged that there was a forensic advantage to it in having the matter the subject of the application for leave to amend determined by the AAT rather than this court. That was said to be the fact that if the point were determined adversely to the plaintiffs in the AAT, and the matter then appealed to this court, a stay of the development could only be obtained on an undertaking as to damages. PLA took a similar view and also expressed concern for the timely resolution of all these proceedings. I was not, however, directed to any specific provision to support what was said to be the requirement for an undertaking as to damages having to be given before a further stay of the development approval could be given. In any event, the amendment sought, on the face of it, was a matter in issue between the parties and although it may have required the finding of jurisdictional facts, I was not informed as to whether or not such facts could have been agreed.
Rule 501 of the Court Procedure Rules 2006 provides that necessary amendments to a document must be made for the purpose of deciding the real issues in the proceedings and avoiding multiple proceedings. Although the issue which is the subject of the amendment is a discrete matter, the real issue in the proceedings is the jurisdiction of the AAT to entertain the plaintiffs’ application for a review. Accordingly, the issue of permitting the amendment, weighed against DFO’s expressed attitude to the issue taking its course in the AAT, seemed to me to be finely balanced. That is particularly so as there seemed to be no wish to agree the jurisdictional facts which might have enabled the question to be determined by this court.
All parties seemed entrenched in their positions on this matter and, as I was uncertain, at that time, as to what result would achieve the most timely resolution of these proceedings and the issues between the parties, I adjourned the application.
A brief background to the present planning regime in the ACT
Section 52(i) of the Constitution gives to the Parliament of the Commonwealth exclusive power to make laws with respect to the seat of government of the Commonwealth. The Australian Capital Territory (ACT), for the purposes of the Constitution, is the seat of government. Prior to self-government, laws were passed for the Territory by the Commonwealth Parliament, or by the Governor-General, making Ordinances under the Seat of Government (Administration) Act 1910 (Cth).
Prior to self-government in the ACT, the planning, development and construction of the City of Canberra was undertaken by the National Capital Development Commission under the National Capital Development Commission Act 1957 (Cth). The Commission administered a plan of layout of the City of Canberra and its environs published in the Gazette on 19 November 1925 as modified or varied from time to time. The Buildings (Design and Siting) Act 1964 (Cth) prohibited the erection or alteration of a building without the approval of the National Capital Development Commission. That Act gave an applicant who was refused approval, or received approval with conditions, a right of appeal to an Administrative Committee. There were no third party rights of appeal. Those appeal provisions were changed upon the commencement of the Interim Territory Planning Act 1990 (ACT) which substituted the Federal Administrative Appeals Tribunal for the Administrative Committee. The right of appeal was restricted to the applicant who had sought approval. Section 27 of the Administrative Appeals Tribunal Act 1975 (Cth) was excluded from this appeal right. That section permitted any person whose interests were affected by a decision to apply to the Federal Administrative Appeals Tribunal.
The Territory planning regime
The planning of the ACT and the management of land in it upon self-government becoming effective was governed by the PALM Act. That Act provided for a National Capital Plan to be administered by the National Capital Authority in relation to designated areas in the National Capital. Otherwise, planning in the Territory was to be the province of the Legislative Assembly of the Territory which was to be responsible for establishing a Territory planning authority and preparing a Territory Plan not inconsistent with the National Capital Plan.
Section 25 of the PALM Act sets out what was required of the Assembly in making those laws. It provides:
(1)The Assembly shall, as soon as practicable, make laws providing for:
(a)establishing a Territory planning authority; and
(b)conferring functions on the authority, including the functions of:
(i)preparing and administering a plan in respect of land, not inconsistent with the National Capital Plan; and
(ii)keeping the plan under constant review and proposing amendments to it when necessary.
(2)The object of the plan is to ensure, in a manner not inconsistent with the National Capital Plan, the planning and development of the Territory to provide the people of the Territory with an attractive, safe and efficient environment in which to live and work and have their recreation.
(3)The plan:
(a)shall define the planning principles and policies for giving effect to the object of the plan; and
(b)may include the detailed conditions of planning, design and development of land and the priorities in carrying out such planning, design and development.
(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 [National Capital 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.
(5)This section does not limit the power of the Assembly to make laws otherwise than under this section.
(6)In this section:
land does not include Designated Areas.
In Blicharz v Minister for Urban Services and Others (2000) 155 FLR 419, Higgins J (as he then was) had occasion to consider the operation of the legislation enacted by the Assembly to give effect to the regime provided for in s 25 of the PALM Act. He did so in the context of the directions given to the Executive pursuant to s 29 of the PALM Act to act in accordance with certain principles. On the question of inconsistency, he said this (425 [51]):
The express inconsistency provisions both of the Australian Capital Territory (Self-Government) Act and the Australian Capital Territory (Planning and Land Management) Act, echoing as they do the inconsistency provision between the Commonwealth and the States (s 109 of the Constitution), are, in my view, entirely mandatory and intended to limit the legislative power conferred on the Assembly and the administrative powers conferred (or conferrable) on the Australian Capital Territory Executive or any other body or agency exercising administrative power in the Territory.
His Honour went on to say at 426 [57] that the “principles” expressed in s 29(2) of the PALM Act applied “to limit the powers of the Assembly and the Executive in relation … to the planning and land management issues covered by” the Planning Act. It was submitted by DFO that this expressed too widely the limitation by the inclusion of the Assembly, as well as the Executive, in the limitation of powers. This was because the principles under consideration by his Honour were those set out in s 29 of the PALM Act and that they had only specific reference to the Executive. However, I take what his Honour said to include and encompass the precepts set out in s 25(4)(c) of the PALM Act and, in my view, those precepts support the correctness of his Honour’s observation at least insofar as the inconsistency provisions are intended to limit the legislative power conferred on the Assembly and the Executive. In my view, the remarks that his Honour made about “just and timely” review and “appropriate” classes of decisions are also as equally applicable to the Assembly as they are to the Executive. In referring to s 29(2)(b) of the PALM Act, which is in the same terms as s 25(4)(c) of that Act, set out above, his Honour said, at 426 [58]:
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 s 29(2)(b) of the Australian Capital Territory (Planning and Land Management) 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.
In the present case, I accept that these matters are matters for the Assembly and the Executive and the value judgments involved do not call for objective assessment by a court.
Part 6 of the Planning Act contains the planning regime in respect of the giving of approvals and the making of orders in respect of a development. “Development” is defined in s 222 as:
development means activity in relation to land that consists of 1 or more of the following activities:
(a)the erection, alteration or demolition of a building or structure on or under the land;
(b)the carrying out of earthworks or other construction work on or under the land;
(c)the carrying out of work that would affect the landscape of the land except if the land—
(i)is leased for residential purposes only; and
(ii)is not registered, or nominated for provisional registration, under the Heritage Act 2004;
(d)a use of the land for a business—
(i)that is a home business within the meaning of the plan; and
(ii)that is not expressly authorised by a current lease;
(e)a use of the land for an activity—
(i)that is prescribed for section 175 (3) (a); and
(ii)that is not expressly authorised by a current lease;
(f)if the land is unleased territory land—a use of the land that is not authorised by a current licence or permit granted for the land under an Act;
(g)the erection, fixing or displaying of a sign or advertising material on the land, or on a structure or building on the land, otherwise than in accordance with a right to do so expressly given by a current licence granted under this Act, a current lease or a current permit under the Roads and Public Places Act 1937;
(h) a variation of a lease of the land;
(i)an activity declared by another Act to be a development activity for this part;
but does not include a use of unleased territory land by or on behalf of the Territory for a purpose for which it was used before the commencement of this Act.
The provisions for review under consideration in this matter, namely s 275 and s 276, are contained in Division 6.6 subdivision 6.6.1. Subdivision 6.6.2 contains s 282 which is the regulation making power. The relevant regulation making power is that contained in s 282(1)(e) which provides:
(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; …
The purposive approach
The plaintiffs’ submissions put forward as my approach to this matter, the requirement that I give effect to s 139 of the Legislation Act 2001 (ACT) (the Legislation Act) which provides:
(1)In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)This section applies whether or not the Act’s purpose is expressly stated in the Act.
I was also referred to s 30(1) of the Human Rights Act 2004 (ACT) (the Human Rights Act) which also provides:
In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
These provisions were the subject of consideration by the Court of Appeal of this court in Kingsleys Chicken Pty Limited v Queensland Investment Corporation and Canberra Centre Investments Pty Limited [2006] ACTCA 9 (2 June 2006). I accept that this is the appropriate approach and I also note the comment by the court at [52] of that decision:
The legislative direction to “prefer” an interpretation that is consistent with a policy objective was given effect to in Ghadidan v Godin-Mendoza [2004] 2 AC 557. Lord Nicholls of Birkenhead said (at 571) –
… the interpretive obligation decreed by section 3 is of an unusual and far reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question.
The problem, however, in a case like the present, is actually ascertaining the purpose of the legislation where the background to the enactment of the legislation is derived from precepts from another legislature, in this case the Commonwealth Parliament in its enactment of the PALM Act.
It must be said, however, as I have earlier commented, that there is a considerable value judgment reposed in the ACT Assembly by s 25(4)(c) of the PALM Act in determining the nature of the review, its justness and its timeliness, the formality required and the appropriateness of the classes of decisions to which it should apply. These are not necessarily ascertained from the Planning Act itself or the Second Reading Speeches and Explanatory Memoranda accompanying that Act. Nonetheless, the enactment of s 282(1)(e) of the Planning Act could not be said to be inconsistent with the general purposes of the PALM Act and was an available mechanism that could be used to achieve the purpose of the Planning Act. I think the plaintiffs accepted this proposition.
It was also said by the plaintiffs that the Human Rights Act, by s 21, recognised the right of all to have rights and obligations recognised by law decided by a competent, independent and impartial court or tribunal after a fair and public hearing. For the purposes of this matter, the plaintiffs said that s 276 of the Planning Act gave effect to that right. I do not accept that this is so. Section 276 is restricted to appeals by objectors and third parties. A person whose rights are directly affected is granted a right of review under s 275. Those are the persons who may be said to have rights and obligations affected by development approvals and who may have an entitlement to call upon the Human Rights Act to have those rights adjudicated on in the manner declared by that Act. This may raise different questions arising under the Human Rights Act than those which I am now considering. Objectors and third parties are outside the class of persons whose rights and obligations are affected by a development approval and whose rights and obligations might fall to be determined by a court or tribunal in the manner declared under s 21 of the Human Rights Act. If an individual’s rights or obligations are not in question, there is no call for a decision to be made by a court or tribunal. There is no general right to have decisions not affecting the particular individual’s rights reviewed at the instance of an individual not so affected.
The plaintiffs’ submissions
Having regard to the plaintiffs’ submissions as to the general purpose and import of the PALM Act and the Planning Act and the effect of the Human Rights Act, it was then submitted that s 43 and Schedule 7 (or alternatively, item 11 of Schedule 7) of the Planning Regulations are beyond the regulation-making power set out in s 282(1)(e) of the Planning Act. It is put that s 282(1)(e) should be interpreted in such a way as to give effect to the purpose of the Planning Act as well as the Human Rights Act.
Exemption of decisions about a development
The submission is firstly put that s 282(1)(e) of the Planning Act only authorises the exemption of developments from the operation of Part 6 of the Planning Act. It is submitted that s 43(1) of the Planning Regulations does not exempt “developments” from the operation of Part 6 of the Planning Act but exempts the decision to approve a development application. There is an alternative submission that the effect of the regulation is to abrogate a person’s right to apply for a review of the decision to approve a development application, but that is said to be on the same ground, namely, that neither the decision nor the right to apply for a review is a development as that term is defined in the Planning Act.
On any view, s 282(1)(e) of the Planning Act is a provision which authorises regulations being made to exempt a development from the application of Part 6 of the Planning Act or any provision of Part 6. That could quite properly be done in terms of the precept in s 25(4)(c) of the PALM Act which requires review “of appropriate classes of decisions on planning design and development of land”.
Accordingly, to exempt from review a decision on development is well within the purview of s 282(1)(e) of the Planning Act. The true effect of s 43(1) of the Planning Regulations is to exempt a development from the application of s 276 of the Planning Act. If that is its effect, then s 43(1) of the Planning Regulations is within the regulation-making power. The fact that it can also be characterised or described as exempting decisions about a development or a third party’s “right” to a review does not take the regulation outside the power to make it.
To make a regulation which exempts “a decision of the relevant authority about a development”, as s 43(1) does, is, in my view, clearly a regulation exempting a development from a provision of Part 6 of the Planning Act. That provision is identified in the heading to s 43 as “Exclusion of appeals by objectors and third parties – Act s 276”. The heading is part of the regulation (s 126 Legislation Act).
Exempting developments of a kind
The plaintiffs then submit that as the power given by s 282(1)(e) of the Planning Act is to exempt “a development of a kind specified by regulation”, s 43(1) of the Planning Regulation and Schedule 7 Item 11 of those regulations do not specify a development of a kind.
The requirement to specify “a development of a kind” must involve a classification or categorisation. The plaintiffs make the point that the definition of “development” in s 222 of the Planning Act means an “activity in relation to land” and that the definition then lists different activities, one or more of which will constitute “development”. It is not unreasonable to think that whatever is involved in the classification or categorisation of the development should have some reference to the class or categorisation of the activity involved in development. What seems to me to be plain is that the regulation-making power does not authorise the exemption of all developments, but only all of a class or category of a development.
Further, that seems to me to be the plain purpose for the enactment of s 282(1)(e). The Explanatory Memorandum which accompanied the Bill introducing this provision stated that this paragraph and the accompanying paragraph related to controlled activities:
… clarify the power to make regulations exempting certain developments or controlled activities from the application of provisions of Part 6 of the Act. The exemptions may be absolute or conditional, and may be from all of Part 6 or any of its provisions.
In my view, the clear intention was to restrict the regulation-making power to the specification of certain activities (be it development or controlled). There is no underlying purpose which would authorise all activities to be exempted.
Prior to the amendment to the Planning Regulation which brought in what is now item 11 to Schedule 7, Schedule 7 listed a variety of kinds of development which were excluded from appeals by objectors and third parties. Item 1 exempted those developments that were exempt from notification. Item 2 related to developments approved by the Minister after he had approved the development under the “call in” provisions of s 229B of the Planning Act. Items 3, 4, 5 and 6 are concerned with activities related to a development. The same may be said of items 14 to 20. Items 7 to 13 of Schedule 7 prior to the amendment, dealt respectively with development on land within:
· an industrial area or a municipal services area (item 7);
· a commercial area (item 8);
· an entertainment accommodation and leisure area (item 9);
· a community facility area or restricted access recreation area (item 10);
· an urban open space area, a hills, ridges and buffer area, a river corridor area, a mountains and bushland area or plantation forestry area (item 11);
· a broad acre area or a rural lease land use area (item 12);
· land in a designated area within the meaning of the national capital plan (item 13).
As far as items 7 to 13 were concerned, each of the developments on the land so identified was then qualified by conditions such as the proximity to a residential area, use of the land for the activity proposed, and/or a description of the activity proposed such as floor area increase, plot ratios, height increase and the like. I do not have any difficulty in seeing that the scheme describing items 7 to 13 in the regulations, as they stood prior to the amendment which introduced what is now item 11, gave effect to the requirement to specify development of a kind as required by s 282(1)(e). These items were referable to a planning area but provided, either by way of description or by way of condition, a class or categorisation of a development activity.
The Amendment Regulation
It was the Land (Planning and Environment) Amendment Regulation 2006 (No. 2) (the Amendment Regulation) that amended the planning regulation to provide for a new item 10A which has now been re-numbered to be item 11 in the present planning regulation. That amendment commenced on 21 April 2006. The scheme of the amendment was to redefine in each of the items the area to which they applied. That was achieved by qualifying the area by the words “other than land in the Civic Centre area or a town centre area”. The one area which included an industrial area as its description (item 7) was amended so as to delete the reference to industrial area. Item 10A was then inserted to exclude completely development in the Civic centre area, a town centre area or an industrial area.
The Explanatory Memorandum
The Explanatory Memorandum to the Amendment Regulation was quite explicit in its purpose “to create exemptions from third party appeals in relation to all development within the Civic centre area, a town centre area and an industrial area”.
In the Explanatory Memorandum, the background to the proposed amendment to the regulations is set out as:
Schedule 7 of the Land (Planning and Environment) Regulation 1992 contains the list of exemptions from third party appeals. A number of these exemptions already apply to certain development in the land use policy areas found within the Civic centre area and a town centre area and in industrial areas. Certain exemptions also apply to development within designated areas. The effect of the amendment regulation is to widen the existing exemptions to encompass all development within the Civic centre area, a town centre area and industrial areas, while allowing the existing exemptions to continue to apply in other parts of the Territory.
The Government in its Directions paper and technical papers for the Planning System Reform Project proposed to modify third party appeal rights, so that in general terms, only development applications having significant off site impacts, particularly in residential areas, would be open to third party appeals.
The Government’s response, after considering the comments from the community on the Planning System Reform Project proposals, was to affirm its intention to continue with the development of a track based assessment system, in which there would be certain cases, such as town centres, where there might be notification but no third party appeal rights. The amendment regulation is broadly consistent with the Government’s response.
The difficulty that I have with this expression of intent is that it does not seek to classify or categorise an aspect of the development in the areas that are specified without reference to the activity that the definition of development embraces. In other words, it pays no respect to the requirement in s 282(1)(e) that the development of a kind be specified. Nor does it give any attention to the purpose expressed in enacting the regulation-making power that the power was to be exercised by specifying certain developments. Rather, it seeks to exempt all development in certain areas.
The matter may seem to turn on a fine point, but it seems to me the failure to relate the description of the kind of development to the activity encompassed by its definition is a deficiency which is fatal to the validity of the regulation.
I am not able to say that the device used by the regulations in the present case is sufficient to satisfy the requirement that the regulation specify “development of a kind”. That is so when all that the specification does is refer to all development in a particular area without qualification as to the activity that could be said to be of a class or categorisation distinguishing the development activity.
It must be kept in mind that the regulation-making power does not authorise by regulation the exemption of all developments as a general class from the application of Part 6 of the Act or any provision of it. It must be a development of a kind specified by the regulation. I take the view that the regulation comprised by s 43(1) and Schedule 7, item 11 Amendment Regulation does not specify a kind of development but rather development generally and that the specification of the area to which the regulation refers does not provide a sufficient class or categorisation to satisfy the requirement that development of a kind must be specified.
If the words “of a kind” had not been used in s 282(1)(e) of the Planning Act, it would have been open to rely upon s 48(1) of the Legislation Act which provides:
Power given under an Act or statutory instrument to make a statutory instrument includes power—
(a)to make different provision in relation to different matters or different classes of matters; or
(b)to make an instrument that applies differently by reference to stated exceptions or factors.
Although that section is a determinative provision, in my view, it does not assist where the requirement for categorisation is expressly required to be specified by and for the purpose of the regulation. Had the power in s 282(1)(e) of the Act been described as applying to a development without qualification, then I consider that s 48 of the Legislation Act may have supported a specification of the nature provided by the Amendment Regulation, but in the present case it does not assist.
There is no doubt that there are many reasons of policy why developments might be excluded from there being a third party review of planning decisions of a particular nature. I am not in a position to, nor do I, comment on those reasons. The narrow point upon which the plaintiffs are entitled to succeed (and, in my view, the only point upon which they do) relates to the fact that the regulation-making power does not authorise the specification of development of a kind solely by reference to all development in an area without some qualification of the nature of the development activity in that area.
It follows that I would make a declaration concerning the invalidity of s 43(1) of the Planning Regulation when read with item 11(c) of those regulations listed in Schedule 7. What effect my reasoning would have on the Amending Regulation as a whole has not been argued before me. In particular, invalidity of the specification as far as items 11 (a) and (b) may involve different considerations on the Amending Regulation read as a whole because of the specific exclusion of the topics of (a) and (b) from other items in Schedule 7 (cf s 120(3) Legislation Act). That was not the subject of argument before me. I am satisfied that s 43(1) Schedule 7 item 11(c) exceeds the power given to make regulations by s 282(1)(e) of the Planning Act and a declaration to that effect is all that is required for the purposes of this case.
I decline to make the other declaration sought by the plaintiffs, namely, that the AAT has jurisdiction to hear the proceedings brought by the plaintiffs against PLA and DFO. The declaration that I have made should be sufficient to enable the AAT to determine the issue of jurisdiction for itself.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 15 December 2006
Counsel for the plaintiffs: Mr S B Austin QC with Mr S W Balafoutis
Solicitor for the plaintiffs: Mallesons Stephen Jaques
Counsel for the first defendant: Mr A Robertson SC with Mr P Walker
Solicitor for the first defendant: ACT Government Solicitor
Counsel for the second defendant: Mr P Hanks QC with Mr B O’Donnell
Solicitor for the second defendant: Meyer Vandenberg
Date of hearing: 4, 5 December 2006
Date of judgment: 15 December 2006
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