Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT
[2019] ACTSC 58
•15 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT |
Citation: | [2019] ACTSC 58 |
Hearing Date: | 19 December 2018 |
DecisionDate: | 15 March 2019 |
Before: | McWilliam AsJ |
Decision: | See [80] |
Catchwords: | ADMINISTRATIVE LAW – Judicial review – where conditional development approval granted for development application – where a delegate later changed the decision and refused the development application when no further application had been made – whether delegate had power to intervene and reverse the decision – later decision invalid STATUTORY INTERPRETATION – Whether s 180 of the Legislation Act 2001 (ACT) is displaced by a contrary intention in the Planning and Development Act 2007 (ACT) |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 83 Court Procedures Act 2004 (ACT) s 5A Planning and Development Act 2007 (ACT) ss 12, 46, 136A, 162, 170, 175 – 181, 188, 189, 191, 193 199, 408A, Div 7.3.10 |
Cases Cited: | Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) FCR 280 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 |
Parties: | Capital Recycling Solutions Pty Ltd (ACN 169 054 353) (Plaintiff) Planning and Land Authority of the Australian Capital Territory (Defendant) |
Representation: | Counsel Mr T Howard SC and M Hassall (Plaintiff) Mr P Walker SC and K Katavic (Defendant) |
| Solicitors Minter Ellison (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SCA 396 of 2018 |
McWilliam AsJ:
On 7 April 2017, by a Notice of Decision issued under a combination of ss 162 and 170 of the Planning and Development Act 2007 (The Planning and Development Act), the plaintiff was granted a development approval for the construction of a hard stand structure and associated works on a site in the IZ2 Industrial Mixed Use Zone, described as Block 11, Section 8 in Fyshwick (the Property). I will refer to this decision as the ‘2017 Decision’. The site of the proposed development is located next to part of the railway line running through the Canberra Railway Station and the purpose of the development, as described in the planning report accompanying the initial development application number 201630668 (DA), was primarily to manoeuvre machinery to load and unload shipping containers.
The defendant, the Planning and Land Authority of the Australian Capital Territory (the Authority), was the decision-maker and is a body corporate under s 10 of the Planning and DevelopmentAct.
On 2 August 2018, without receiving any further application, the Authority seemingly voluntarily undertook what it described as a ‘review’ of the 2017 Decision. It issued a second Notice of Decision (2018 Decision), purporting to change the 2017 Decision, refusing the DA.
The reasons given in the 2018 Decision, and which are central to the dispute before the Court, were as follows:
Following review of the 7 April 2017 decision on the development application, and in view of the development proposal of “railway use” being a prohibited development, it has been determined that it would have been preferable if the decision to conditionally approve the development application in the merit track had not been made.
In light of the above, and in view of the fact that, when read with section 180 of the Legislation Act, it is clear that section 162 of the Planning and Development Act 2007 is to be interpreted to also give the planning and land authority power to reverse or change a decision made under it, in order to ensure consistency with the Territory Plan 2008 it was decided to change the 7 April 2017 decision. In place of it, it was decided to now refuse the development application under section 162 of the Planning and Development Act 2007.
This judicial review proceeding concerns whether that 2018 Decision was lawfully made.
Application before the Court
The plaintiff commenced these proceedings on 29 August 2018. The Amended Application filed in Court on 19 December 2018, as ultimately pressed at the hearing, seeks declaratory relief that the 2018 Decision was void ab initio, or alternatively, orders setting aside the 2018 Decision.
The basis for the application is that the Authority did not have jurisdiction to make the 2018 Decision.
Evidence and argument before the Court
The parties were well served by their legal representatives, who appear to have cooperated fully to bring the matter properly prepared before the Court in a timely fashion. The parties jointly relied on the same documentary evidence and a statement of agreed facts. The approach taken to the evidence exemplified the obligation on parties in s 5A(4) of the Court Procedures Act 2004 (ACT) to assist the Court to achieve a just resolution to the real issues in dispute as quickly, inexpensively and efficiently as possible. Considerable assistance was also received from senior counsel for each of the parties (aided by their juniors) in teasing out the key components of the complicated statutory framework and the legal principles arising for consideration. I have endeavoured to incorporate their written and oral submissions throughout these reasons.
The plaintiff’s case may be stated briefly. It argued that the decision whether to grant approval for the DA had been made by the 2017 Decision. Having regard to the text, context and purpose of the Planning and DevelopmentAct, there was no power, express or implied, for the decision to be reversed in 2018. Accordingly, the 2018 Decision was without jurisdiction and therefore either void or invalid.
10. The Authority’s case supporting the validity of the 2018 Decision has two limbs. The first is that s 180 of the Legislation Act 2001 (ACT) (Legislation Act) operates on the Planning and Development Act to permit the Authority to change or reverse the 2017 Decision. The second, is that the 2017 Decision was a nullity or no decision at all. The Authority was therefore entitled to ignore and make the 2018 Decision. It is argued that the 2017 Decision was a nullity because the proposed development was for “railway use”, which was a prohibited use in the Industrial Mixed Use Zone under the Planning and DevelopmentAct, and could not have been approved. Alternatively, the 2017 Decision failed to take into account a relevant consideration, which was whether the DA was for railway use and therefore prohibited.
Summary of findings
11. For reasons that follow, the Authority’s arguments must be rejected. In summary, I have found:
(a) Section 180 of the Legislation Act has been displaced by a clear contrary intention evidenced by the provisions of the Planning and Development Act.
(b) Similarly, on the proper construction of the Planning and DevelopmentAct, which sets out a specific regime for decision-making, review, revocation and so forth, the Authority was not entitled to ignore a previous decision it had made on the basis that it considered the decision to be without power.
(c) Even if the position were otherwise, the 2017 Decision was not without power (that is, it was not void for jurisdictional error) as the use of the Property was not prohibited. This is because:
i. On the proper construction of the Planning and DevelopmentAct, the particular use of a site is a question of law and therefore amenable to judicial review;
ii. The use of the Property was not for a “railway use”; and
iii. It follows that the decision-maker did not fail to take into account a relevant consideration, as the Authority was mistaken in its underlying assumption as to use.
The Court’s discretionary power to hear the application
12. Section 408A of the Planning and DevelopmentAct expressly provides a statutory right of review by the ACT Civil and Administrative Tribunal (Tribunal). There are merits review proceedings concurrently before the Tribunal, which have been adjourned pending the outcome of the application before the Court.
13. In such circumstances, rule 3566 of the Court Procedure Rules 2006 (ACT) enables the Court to exercise its discretion to refuse the application, in this case, on the ground that a satisfactory remedy is available in a different forum. See also Commissioner for Taxation v Futuris Corp Ltd [2008] HCA 32; 237 CLR 146at [10] per Gummow, Hayne, Heydon and Crennan JJ and per Kirby J at [156], where it was stated that in circumstances where the statute has expressly provided an alternative remedy as the ordinary and regular recourse for an aggrieved person (such as full merits review), the Court has a discretion to decline to grant a remedy by way of judicial review, and should exercise it accordingly.
14. It is therefore necessary to briefly record that at an earlier stage of the proceeding, the parties had ventilated through written submissions whether the Supreme Court should determine the application, or whether the issue should be heard as part of the merits proceedings before the Tribunal.
15. By filing a statement of agreed facts, the parties expressly limited the issue to be determined by this Court to a legal one of narrow compass, being the power of the delegate to reverse a decision. This is a matter which both parties submitted was of public importance and had potentially far reaching consequences for planning decisions in the Territory. In addition, the resolution of the legal question would finally dispose of the merits proceedings before the Tribunal. The parties relied on the considerations set out in Fekete v Construction Occupations Registrar [2013] ACTSC 45 at [9]-[10] to submit that these factors were of sufficient significance as to warrant judicial review by this Court.
16. I accepted those submissions. In the somewhat unique circumstances of this case, this judicial review proceeding is appropriate to be determined now, despite the existence of an alternative statutory remedy and extant proceedings in the Tribunal. I also took into account s 83 of the ACT Civil and Administrative Tribunal Act 2008 (ACT), which relevantly provides that if the parties to a matter jointly apply to have the matter removed to the Supreme Court, the Tribunal must so order. Given the parties’ submissions before me, I considered there to be little point in requiring the matter to proceed in the Tribunal, only for s 83 to in all likelihood be invoked and the dispute to return to this Court.
Applicable legal principles
17. Before dealing with the statutory framework in the context of each of the issues, it is necessary to address some of the general principles relied upon by the parties, and how they apply to the planning context in the Territory.
Whether a decision-maker may ignore a decision if it is considered to be invalid
18. It is trite that the Authority’s power derives from statute. The Authority argued that it nevertheless had implied power to ignore an invalid decision. It relied upon the following principles:
(a) That a decision affected by jurisdictional error is no decision at all, relying on Minister for Immigration and Multicultural Affairs vBhardwaj[2002] HCA 11; 209 CLR 597 (Bhardwaj) per Gaudron and Gummow JJ at [51]- [53].
(b) That a decision-maker is at liberty to ignore such a decision, relying on Leung v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 400 (Leung) per Finkelstein J at 412-413.
19. However, as the following discussion demonstrates, the principle to be followed is that the statute will determine what the legal consequences are and whether a decision-maker can simply ignore a decision he or she considers to be made without jurisdiction.
20. There is a line of authority to the effect that invalidity is required to be established by a judicial rather than an administrative determination, and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in: Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 per Aikin J at 277; Ousley v The Queen (1997) 192 CLR 69 (Ousley) per Gummow J at 130-131; and R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 at 33.
21. If the position were otherwise, the operation of the vast number of administrative decisions made daily would be compromised, and the system would be unworkable. Indeed, to paraphrase the legal philosopher Hans Kelsen, the system would be reduced to a ‘state of anarchy’: see State of New South Wales v Kable [2013] HCA 26; 252 CLR 118 per Gageler J at [40] quoting Hans Kelsen.
22. That statement has particular force in a planning context. As raised with the parties during the hearing, no one would be in a position to build or develop with any certainty in the Territory if a development approval granted on one day were able to be unilaterally treated as void and of no effect by the Authority the next day.
23. The proposition that invalidity is to be established by judicial determination in a planning context is consistent with what has been well-established elsewhere: see, for example, F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3], (1985) 66 LGRA 306 (Hannan) per McHugh JA at 327; and, GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 (GPT Re Ltd) per Basten JA at [90].
24. In Hannan, McHugh JA stated at 327 (citations omitted):
The [Environmental Planning & Assessment Act] shows in my opinion a clear intention that a breach of the Act only has the consequences which the Act provides. Questions as to whether a breach of the Act is void or voidable are beside the point. This is because the Act prescribes exhaustively the civil remedies available in respect of a breach of the Act and also because proceedings for breach can only be brought in the Land and Environment Court. Professor SA De Smith has pointed out in Judicial Review of Administrative Action, that ‘void acts and decisions are indeed usually destitute of legal effect; they can be ignored with impunity; their validity can be attacked, if necessary, in collateral (or indirect) proceedings; they confer no legal rights on anybody’. But the provisions of the [EP&A Act] and the [Court Act] to which I have just referred make it plain that a decision made in breach of the Act cannot be attacked in other courts or in collateral proceedings. So far as other courts are concerned the decision is unchallengeable and must be acted on. This is the antithesis of a void decision. The only civil remedies for breaches of the Act are those conferred by the Act.
25. Hannan was referred to by Basten JA in Rossi v Living Choice Australia Ltd [2015] NSWCA 244 at [44], who went on to say at [45]:
It follows from this analysis that even a determination which has failed to take into account a mandatory consideration is not void or invalid until declared to be so by the court.
26. Those authorities were referring to different legislation. However, when the Planning and DevelopmentAct is considered in detail below, it will be seen that the same position is arrived at in the context of the planning regime that exists in the Territory.
27. Neither Bhardwaj nor Leung (cases relied upon by the Authority) are inconsistent with the principle just discussed. In Leung, Finkelstein J referred to a number of authorities in Australia and the United Kingdom, including Ousley per Gummow J (stating the presumption of validity of the decision unless set aside in appropriate proceedings) and the contrary argument in Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461 at 483, which was relied upon by McHugh J in Ousley in stating that an administrative act made outside the court’s jurisdiction can be challenged in collateral proceedings for the reason that it is void and therefore need not be set aside by a court that has supervisory jurisdiction.
28. In Leung, Finkelstein J went on to find at 413D that there were different purposes for inquiring whether an invalid decision is to be regarded as effective (emphasis added):
If the validity of the decision is at issue in curial proceedings then the question that arises is whether the decision is of such a class or character that it is appropriate for the Court to assume that it is valid unless the contrary is established by the party seeking to challenge its validity. The answer might depend upon the nature of the decision or it might depend upon the terms of the statute pursuant to which the decision was taken. …Sometimes it is also necessary to inquire whether an invalid decision has any effect. There is no doubt that an invalid administrative decision can have operational effect.For example, it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.
29. That view was expressed in 1997. By 2002, when Bhardwaj was decided, the position had been further refined. Gleeson CJ at [6] in Bhardwaj held that the proposition of a decision-maker having the ability to treat its own decision as a nullity based on asserted jurisdictional error and purporting to re-exercise the decision-making power must yield to the legislation under which the decision-maker is acting:
The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.
30. In Jadwan Pty Ltd v Secretary Department of Health and Aged Care (2003) 145 FCR 1 (Jadwan) per Gray and Downes JJ at [42]:
In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.
31. Those comments in Jadwan have been subsequently applied on numerous occasions: see for example, GPT Re Ltd at [90]; Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264 at [56]; and Lewski v ASIC [2016] FCAFC 96 at [249].
32. Thus, whether the Authority had the power to do what it did in making the 2018 Decision will depend upon the proper construction of the Planning and DevelopmentAct.
The nature of a development consent or approval
33. It is also important when embarking upon the process of statutory construction below to understand the enduring nature of the particular decision under challenge. Although a person or entity might apply for a development approval, the approval is made in respect of the land. The permission to develop runs not with the party who applied for the approval, but with the land itself. It is a right in rem: see Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 (Woolworths) per Spigelman CJ at [64] and the cases there-cited. In Winn v Director National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 Spigelman CJ stated at [4]:
A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.
The power of revocation
34. The notes and examples contained in the various legislative extracts below have been omitted unless they are of material importance to the issue to be resolved.
35. Dealing first with the interaction between the Planning and DevelopmentAct and s 180 of the Legislation Act, which is set out in the following terms:
Power to make decision includes power to reverse or change
(1)Power given by a law to make a decision includes power to reverse or change the decision.
(2) The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision.
36. Section 6 of the Legislation Act 2001 provides (emphasis added):
Legislation Act provisions must be applied
(1) A provision of this Act must be applied to an Act or statutory instrument, in accordance with the terms of the provision, except so far as it is displaced.
(2) A determinative provision may be displaced expressly or by a manifest contrary intention.
(3) A non-determinative provision may be displaced expressly or by a contrary intention.
…
(4) The declaration of a provision as ‘determinative' indicates that it is the intention of the Legislative Assembly that, if the provision is to be displaced at all in a particular case, a more deliberate displacement is required than if the provision were a non-determinative provision.
(5)This section applies despite any presumption or rule of interpretation.
(6) A provision of this Act must not be taken to be displaced by a provision of an Act or statutory instrument so far as the provisions can operate concurrently.
(7) In particular and without limiting subsection (5), a provision of this Act is not displaced by a provision of an Act or statutory instrument because the provisions deal with the same or a similar subject matter.
(8) This section is a determinative provision.
37. To reason through whether a provision is determinative or non-determinative, one looks to section 5 of the Legislation Act 2001 (emphasis added):
Determinative and non-determinative provision
(1) This Act consists of determinative and non-determinative provisions.
(2) A determinative provision is a provision of this Act that is declared to be a determinative provision.
…
(3) A non-determinative provision is any other provision of this Act.
38. Tracing through the above provisions, s 180 of the Legislation Act has not been declared to be a determinative provision. It is thus a non-determinative provision, and can be displaced either expressly or by a contrary intention.
39. The next step is to examine whether the Planning and Development Act exhibits an express or contrary intention to displace s 180 of the Legislation Act.
Statutory Framework of the Planning and DevelopmentAct
40. When a development application is made to the Authority (putting to one side the power of the Minister, which is immaterial here), there are three options available to it, it must: approve the development application; approve it subject to a condition; or, refuse it (see s 162 of the Planning and DevelopmentAct).
41. If it approves the development application, the Authority must give written notice to the applicant, to the registrar-general for recording under the Land Titles Act 1925 part 8A (Record of administrative interests), and to anyone who made a representation: s 170(1) of the Planning and DevelopmentAct. Part of s 170(1) also deals with applications relating to the variation of a lease, which is immaterial here.
42. The content of the notice must include (among other things) a brief description of the development to which the approval relates, the date the development application was approved and the date the approval takes effect: s 170(2) of the Planning and DevelopmentAct.
43. A notice for approval of a development in the impact track is a notifiable instrument: s 170(4) of the Planning and DevelopmentAct.
44. There is then a detailed regime for determining the date the approval takes effect. The date depends upon whether the development application was determined in a particular track (code, merit or impact), whether anybody made representations and therefore has any rights of review, and whether the approval was subject to conditions or whether the lease permits the activity approved: see ss 175-181 of the Planning and DevelopmentAct.
45. The Authority has the express power to reconsider a decision under s 182 of the Planning and DevelopmentAct, but only in certain circumstances, the first of which is that an application is made for reconsideration of the decision under s 191 of the Act.
46. Under s 188 of the Planning and DevelopmentAct, a development approval continues unless one of a number of specified circumstances in the Act applies. Examples of circumstances include where there is a 2 year time period for development to be carried out.
47. Section 189 of the Planning and DevelopmentAct is critical to determining the issue in dispute before the Court. It creates an express power of revocation in the following terms:
(1) The planning and land authority may revoke a development approval -
(a) if satisfied that the approval was obtained by fraud or misrepresentation; or
(b) if the approval is in relation to a place registered, or nominated for provisional registration, under the Heritage Act 2004 – if the applicant is convicted of an offence against this part or the Heritage Act 2004.
(2) The planning and land authority must tell the registrar-general about the revocation of the development approval if the authority gave the registrar-general notice of the approval.
48. There is also an express and detailed regime for reconsideration of decisions on development applications contained in Division 7.3.10 of the Planning and DevelopmentAct. The aspects of that regime relevant to the present question of revocation are:
(a) It is only enlivened if a development application has been approved subject to a condition or refused: s 191(1)(a) of the Act.
(b) An applicant may apply for reconsideration of the original decision: s 191(3) of the Act.
(c) The Authority’s power is only enlivened upon receipt of a reconsideration application, at which point it must reconsider it within 20 days: s 193(1) of the Act.
(d) The Authority must not take action if the ACT Civil and Administrative Tribunal has decided an application for review: s 193(2) of the Act.
(e) The Authority may only reconsider the original decision to the extent that the development proposal approved or refused is either subject to a rule and does not comply with the rule, or is not subject to a rule.
49. A consideration of these features of the statute demonstrates that there is a comprehensive regime for decision-making under the Planning and Development Act which if not expressly, then impliedly excludes the operation of s 180 of the Legislation Act.
50. In my view, within that regime there is also an express exclusion contained in s 189 of the Planning and DevelopmentAct. The Authority only has power to revoke an approval in the case of fraud or misrepresentation, or where the applicant is convicted in relation to a matter concerning heritage (none of which were raised as issues here). Those express words limit or condition the exercise of the power to revoke. The result is that the Authority does not otherwise have the power to revoke an approval unilaterally. To construe the section as being in addition to a general power of unilateral revocation would give that entire section no work to do and is thus not the preferable construction of the section: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) per McHugh, Gummow, Kirby and Hayne JJ at [71].
51. The Authority relied upon a general list of functions set out in the Planning and DevelopmentAct, one of which was: “to review its own decisions”: Part 3.2, s 12(1)(l) of the Act. The Authority claimed that these general words of review gave it the power to unilaterally revoke a decision it had earlier made.
52. Accepting without deciding that ‘review’ might include revoke (on one construction of the Planning and DevelopmentAct, review is directed to the power to reconsider) the functions must be read both in the context of the Act and so as to conform with a provision governing the manner of its exercise or as subject to any condition on the power: see Project Blue Sky per Brennan CJ at [34]-[37]. In short, the general gives way to the particular. Those general words describing the functions of the Authority simply mean that the Authority does have the power to revoke a decision, with such power governed by the specific provision (s 189) as to the conditions in which the power will be enlivened. They do not found any separate general right of revocation at-large. It is unnecessary to go further, but for completeness, the remainder of the provisions discussed above are the contextual indicators in the Act which confirm the plaintiff’s construction of the Act as to the power of revocation being limited is correct. They provide a detailed regime for what is to occur, with the Authority given power to act in response to certain steps taken by an applicant, such as the lodging of a development application, or the lodging of an application for reconsideration. The only time the Authority is given power under the statute to act of its own volition is in rare circumstances such as fraud or misrepresentation. In context, the Act provides a clear intention that s 180 of the Legislation Act is to be excluded from operation with regard to the Planning and Development Act.
The Authority was not entitled to ignore its previous decision
53. The next question is whether, absent the operation of s 180 of the Legislation Act, the Authority was otherwise entitled to ignore its previous decision, on the basis that it considered the decision to be without power.
54. On the authorities set out above, it is again necessary to consider the statute pursuant to which the Authority was acting, to see whether it manifests an intention to permit or prohibit reconsideration or revocation by the Authority in the circumstances that have arisen. Here, those circumstances were that there was no application for reconsideration before the Authority. It was simply that the Authority took a view that its earlier decision (the 2017 decision) was without power.
55. The task to be undertaken, divining the intention of the statute, is the same as that in relation to s 180 of the Legislation Act, with the same reasons set out above applying.
56. There are, however, additional reasons. First, that the express text of the Planning and DevelopmentAct manifests an intention of finality when an approval is given. Second, it provides the specific channels for rights of review in certain circumstances. Third, it specifies precisely when an approval comes into effect. Fourth, the Act requires the Authority to notify the Register-General of an approval (confirming that the approval runs with the land and is thus a right in rem).
57. Most importantly, s 199 of the Planning and DevelopmentAct makes it a criminal offence to undertake development without development approval. It is a strict liability offence. If the Authority was entitled to treat a development approval as invalid and of no effect unilaterally and on a mere whim, this could have significant and unjust consequences for those who act in accordance with the development approval they thought had been lawfully obtained. This leads strongly to the conclusion that the manifest intention of the comprehensive statutory regime is that once an approval is granted, subject to any review or appeal processes, there is certainty. That intention is inconsistent with the Authority having the power to simply ignore a development approval of its own volition.
58. Such an intention is also consistent with the character or nature of the decision being made. A development approval has such significant consequences that finality and certainty are essential for the planning scheme to work. Owners, buyers, developers, builders, financiers, valuers and law enforcement bodies all rely on the certainty of development approvals in their dealings with land.
59. Although the above reasoning is based on what I consider to be a straight forward application of the principles of statutory construction to the Planning and DevelopmentAct, the conclusion reached is fortified somewhat by a decision to which attention was drawn during argument, being The Queen v DC of Berri [1984] 36 SASR 404 at 418. In this matter the Full Court of the Supreme Court in South Australia was considering a factual scenario where consent to a development had been granted, and after the applicant had been notified, the relevant council sought to attach conditions to the consent. The South Australian statute being considered provided an implied power of revocation, but unlike s 189 of the Act, it did not specify the circumstances in which such a power might be exercised.
60. The Court held that attaching conditions after a consent had been granted was impermissible, stating (per Cox J at 417, with whom King CJ agreed) that once the council had given an unqualified consent to the construction or change of use, its power to attach conditions to that consent was lost. Cox J went on to state at 418 and 420:
…as a general rule, a consent of this kind, once notified in writing to an applicant, cannot afterwards be annulled by the relevant authority or be altered by way of a variation in any conditions lawfully attached to the consent. …
It is hardly conceivable that Parliament intended that a condition could be revoked at the mere whim of the Council that imposed it, regardless of the consequences to the owner or occupier of the land in question.
61. These comments have some resonance with the present facts and support the view that it is unlikely the legislature here would have intended the Authority to be able to choose to revoke a consent, or conditions of a consent, of its own volition.
62. For all of these reasons, absent fraud or misrepresentation, there is nothing in the Planning and DevelopmentAct which permits the Authority to revisit an earlier decision approving a development, voluntarily or of its own accord, to revoke it, and then to issue a new determination contrary to the initial decision. The 2018 decision was unlawfully made. It is invalid and will be set aside.
The 2017 Decision was valid
63. In the event that I am wrong in the above construction of the Planning and DevelopmentAct, and there is scope for the Authority to ignore previous approvals it has granted and further to embark upon a collateral challenge in this Court, I have given consideration to the arguments raised by the Authority, but the outcome does not change. The underlying premise for the Authority choosing to ignore its earlier decision, and for the collateral challenge to the 2017 Decision in these proceedings, is entirely without foundation.
64. The Authority first argued that the 2017 Decision was invalid or inoperative because it was conditional upon a lease being granted and that had not yet occurred. The fact that an approval is conditional upon something happening does not affect its underlying validity. The lack of a grant of lease, or the grant of a lease which included the particular use for which a development approval was given, may prevent the development being carried out, but it says nothing about the validity of the approval given and notified.
65. The next argument raised was that the development for which approval was given was prohibited and therefore no application could have been made. This argument was based on s 136A of the Planning and DevelopmentAct, which provides:
136A Development applications for prohibited development
The planning and land authority may only accept an application for approval of a proposal for a prohibited development if the application is made under—
(a) section 137 (Applications for development approval in relation to use for otherwise prohibited development); or
(b) section 137AA (Applications in anticipation of territory plan variation—made before draft plan variation prepared); or
(c) section 137AB (Applications in anticipation of territory plan variation—made after draft plan variation prepared); or
(d) section 137AD (Applications for development encroaching on adjoining territory land if development prohibited).
66. The submission put forward was that the Authority could not have even accepted the development application, let alone approve it; it fails for two reasons. First, s 136A of the Act does allow applications for prohibited development to be made in the certain circumstances listed and there was no evidence either way as to whether any of those alternatives applied to the facts of this case. As recorded above, the matter proceeded on a statement of agreed facts and an agreed bundle of documents and was limited to a question of law. This was a deliberate forensic decision made by the parties at an early stage in order to have the matter dealt with in the Supreme Court rather than by the Tribunal.
67. Second, and more fundamentally, the development the subject of the 2017 Decision was not prohibited. The use for which approval was granted under the 2017 Decision was for ‘construction of a hard stand structure and associated works’, which is not a ‘railway use’, as found by the delegate who made the 2018 Decision.
68. There was some debate during the hearing as to whether the Court could even delve into the question of use, with the parties focusing on whether under the Act the characterisation of use is a jurisdictional fact. In NSW, characterisation of use has been found to be a question of jurisdictional fact: Woolworths per Spigelman CJ at [86] (with whom Mason P, and Handley AJA agreed). Here, the statute under consideration does have some differences and they may result in a different answer. However, it is not necessary to decide that debate between the parties in the circumstances of this case, for the following reasons.
69. The Territory Plan is established by s 46 of the Planning and DevelopmentAct. It is a notifiable instrument. Part of the Territory Plan includes Chapter 13: Definitions. There are three definitions of relevance here: ‘freight transport facility’, ‘railway use’ and ‘ancillary use’:
Freight transport facility means the use of land for the principal purpose of bulk handling and storage of goods or materials whether or not facilities are included for the parking, servicing and repair of vehicles used to transport the goods or materials on site, but does not include any retail sales or wholesaling from the site.
Railway use means any of the following uses:
a) a railway line for passenger and/or freight movement;
b) a railway station;
c) a railway freight terminal; and/or
d) a railway equipment maintenance depot;
and includes land and reservations of land set aside for railway purposes.
The term excludes light rail
Ancillary means associated with and directly related to, but incidental and subordinate to the predominant use.
70. The use of the Property was for a hard stand structure and associated works to manoeuvre machinery to load and unload shipping containers. It was also claimed that there would be repair works to the segments of rail on the blocks on the site.
71. The task of working out whether those facts fall within any one of the three definitions in the Territory Plan in this case does not involve a value judgment and is therefore a question of law: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) FCR 280 at 287; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]. It is therefore a question that this Court on judicial review may properly consider.
72. Using machinery to unload shipping containers next to a railway line does not mean that the site is used for the purposes of a railway line, station, freight terminal or railway equipment maintenance depot.
73. The minor use of the site for repair works does not amount to use as a ‘railway equipment maintenance depot’ as there was no permission for any building that might constitute a ‘depot’ granted.
74. Even if repair works to segments of rail might be ancillary to a railway use, this does not mean that the use of the Property is then characterised as a railway use. The use as described, and for which approval was given by the 2017 Decision, more properly aligns with that of a freight transport facility.
75. Accordingly, the use was not prohibited in the relevant zone. The Court does not need to consider whether the error perceived by the delegate in making the 2018 Decision was an error of law within jurisdiction or a jurisdictional error, because there was no error made.
76. As to the Authority’s argument that the 2017 Decision failed to consider a relevant consideration, being that the proposed development was prohibited within the industrial mixed use zone, such an argument is based on the erroneous assumption that the use was a ‘railway use’ which was prohibited, and it fails for the same reasons.
77. Thus, if the statute had been construed so as to permit the Authority to ignore a previous decision it had made that was affected by jurisdictional error, the Authority was not entitled to ignore the 2017 Decision, because it was not so affected.
Relief
78. Declaratory relief is always discretionary. In this case, it serves real utility and in my view, it is necessary to make it abundantly clear that the approval granted on 7 April 2017 is the operative decision in relation to the site.
79. As to the question of costs, the parties have each acted reasonably. There was only one issue and the plaintiff was entirely successful. This is not a matter where there could have been a compromise position reached. It seems the just exercise of the Court’s discretion is on the usual basis that costs follow the event.
Conclusion
80. For the above reasons, the application will be allowed. The Court orders as follows:
(1) It is declared that the decision of the defendant dated 2 August 2018 in relation to Block 11, Section 8, Fyshwick is invalid and is set aside.
(2) The defendant is to pay the plaintiff’s costs of the application.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Legitimate Expectation
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Statutory Construction
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