Christopher John Donohue v ACT Planning and Land Authority

The case before the court was between Christopher John Donohue and the ACT Planning and Land Authority. The dispute centred on the interpretation and application of Rule 28 of the Territory Plan Multi-Unit Housing Code Part B – General Development Controls and whether this rule could apply to a Crown lease of a property located at Block 21 Section 38 Turner. The central issue was whether the rule could apply to the lease given the constraints imposed by Section 23(1)(a) of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth).

The court was required to determine if the application of Rule 28 to the Crown lease was permissible under the legislative framework. Specifically, it had to consider whether Rule 28, whether made by the Assembly or under the authority of the Assembly, could be applied to the lease without contravening Section 23(1)(a) of the ACT Self-Government Act 1988 (Cwlth). The court also had to assess if the requirement to vary the lease to limit the development potential before allowing a unit titles subdivision constituted an acquisition of property otherwise than on just terms.

The court ruled that Rule 28 could indeed apply to the Crown lease of Block 21 Section 38 Turner. It found that nothing in Section 23(1)(a) of the ACT Self-Government Act 1988 (Cwlth) precluded Rule 28 from being applied to the lease, regardless of whether it was a law made by the Assembly or a provision binding the Territory under a law made by the Assembly, such as Section 50 of the Planning and Development Act 2007 (ACT). The court also held that the requirement to vary the lease to limit development potential did not amount to an acquisition of property on terms other than just, as the lessee was not deprived of their property and the Territory would not acquire a proprietary right by the lease variation. The court concluded that the requirement for lease variation did not exceed the legislative power.

The final orders were that the referred question be answered in the affirmative, allowing Rule 28 to apply to the Crown lease. Additionally, the parties were to be heard regarding the costs of the proceedings.