CITY HILL PTY LTD & ACT PLANNING and LAND AUTHORITY (Administrative Review)
[2012] ACAT 80
•19 December 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CITY HILL PTY LTD & ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2012] ACAT 80
No:AT12/36
Catchwords: ADMINISTRATIVE REVIEW - refusal to vary Crown lease purpose clause – whether development application contemplated ‘residential use’: objective construction – whether DA can be amended to include ‘residential use’ - influential circumstances to test whether a suggested change is a minor change – the tribunal’s power to amend a development application – meaning of ‘substantially the same’: whether development after amendment is development applied for originally – difference between an amended development application and a new development application
List of Legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT), s.9
Integrated Planning Act 1997 (Qld), s. 4.1.52
Planning and Development Act 2007 (ACT), ss. 7, 162, 144, 145, 146 and 408.
List of Cases: Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd [2001] SASC 173
Butler v Kingaroy Shire Council [2006] QPEC 93
Cambridge Credit Corporation Ltd & Another v Parkes Development Pty Ltd [1974] 2 NSWLR 590
Cooroy Golf Club Inc v Noosa Shire Council [2001] QPELR 431
Heilbronn & Partners & Ors v Gold Coast City Council [2005] QPELR 386
Jackson v Building Appeal Board (2010) 174 LGERA 290
Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14
Legg v Inner London Education Authority [1973] 3 All ER 177
McKenzie v ACT Planning and Land Authority [2004] ACTSC 80
Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula [2008] SASC 139
Studio Tekton Pty Ltd v Redland Shire Council [2006] QPEC 107
Walkington v ACTPLA [2010] ACAT 81
Tribunal: Dr T. Foley - Senior Member
Date of Orders: 19 December 2012
Date of Reasons for Decision: 19 December 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT12/36
BETWEEN:
CITY HILL PTY LTD
Applicant
AND:ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL: Dr T. Foley - Senior Member
DATE: 19 December 2012, as corrected on 21 January 2013
CORRECTED ORDER
The decision under review is confirmed.
………………………………..
Dr T. Foley
Senior Member
REASONS FOR DECISION
These reasons explain why the Tribunal has decided to confirm a decision made by the ACT Planning and Land Authority (“the respondent”) with respect to Development Application 201120304 to refuse to vary the purpose clause in the Crown Lease for Block 19, Section 29 Braddon (“the site”) so that the site can be used for residential purposes.
The decision is a reviewable decision by virtue of section 408 and Schedule 1 Column 2 Item 3 of the Planning and Development Act 2007 (ACT) (the Planning Act).
Background
In 2009, City Hill Pty Ltd (the applicant) lodged Development Application 200913948 (“DA1”) with the respondent, which sought to vary the provisions of the Crown Lease setting out the permitted uses for the site. Section 7 of the Planning Act says that development includes varying a lease. In August 2009, the respondent approved DA1 subject to conditions. The uses that would be permitted if the conditions were met are set out in a draft Crown Lease attached to the Notice of Decision in respect of DA1:
Purpose 3 (a)
(a) To use the premises only for the purposes of one or more of the following:
i.freight transport facility;
ii.industrial trades LIMITED to motor vehicle tyre fitting and ancillary motor vehicle repairs and servicing;
iii.light industry;
iv.non retail commercial use LIMITED to office and public agency;
v.plant and equipment hire establishment;
vi.residential use PROVIDED THAT residential use shall not be permitted at ground floor level or first floor level;
vii.restaurant;
viii.shop PROVIDED ALWAYS THAT the combined maximum gross floor area for supermarket or other shop selling food shall not exceed 200 square metres;
ix.transport depot;
x.vehicles sales; and
xi.warehouse;
The applicant lodged another development application in June 2011. When Development Application 201120304 (“DA2”) was lodged and subsequently, the draft Crown Lease approved in DA1 had not been registered.
At page 3 of the DA2 application form, under the heading ‘Fully Describe Your Proposal’, the proposed development was described as:
Crown Lease Variation to vary the purpose clause by adding the following uses:
club, commercial accommodation use EXCLUDING tourist resort, community use EXCLUDING place of worship and religious associated use, drink establishment, emergency services facility, funeral parlour, indoor entertainment facility, indoor recreation facility, light industry, expand non retail commercial use so it includes business agency and financial establishment, and store.
Please see the submitted Proposed Lease Variation report for full details.
DA2 included a ‘Lease Variation Proposal Report’. The report, under the heading ‘Existing Crown Lease Clauses’, listed the uses approved in DA1 as the relevant current purpose clauses even though it had not been registered.
The report also set out under the heading ‘Proposed Lease Variation’ that the proposal was ‘to vary the purpose clause by adding the following uses’ and then re-listed the additional uses sought under the heading ‘Fully Describe Your Proposal’ in the DA Application Form. Under the heading ‘Proposed Lease Variation’, the report said that the resultant amended purpose clause would read as follows:
Purpose 3(a) To use the land for one or more of the following
purposes:i.club;
ii.commercial accommodation use EXCLUDING tourist resort;
iii.community use EXCLUDING place of worship and religious associated use;
iv.drink establishment;
v.emergency services facility;
vi.freight transport facility;
vii.funeral parlour;
viii.indoor entertainment facility;
ix.indoor recreation facility;
x.industrial trades LIMITED to motor vehicle tyre fitting and ancillary motor vehicle repairs and servicing;
xi.light industry;
xii.non retail commercial use;
xiii.plant and equipment hire establishment;
xiv.residential use PROVIDED THAT residential use shall not be permitted at ground floor level or first floor level;
xv.restaurant;
xvi.shop, PROVIDED ALWAYS THAT the combined maximum gross floor area for supermarket or other shop selling food shall not exceed 200 square metres;
xvii.store;
xviii.transport depot;
xix.vehicles sales; and
xx.warehouse;
In June 2011, the respondent sought comment from various entities and others, namely, Environment Protection Authority (EPA), Territory and Municipal Services Directorate (TaMS), ActewAGL, Office of Regulatory Services (ORS), and Assessment Officer for Development Applications in North Canberra (The Merit North Team). Entity advice was received from EPA, TaMS and ActewAGL.
On 22 March 2012, the respondent partially approved and partially refused DA2. The Notice of Decision approved, subject to conditions, the proposal to amend the purpose clause for the site to include the following uses:
·club;
·commercial accommodation use EXCLUDING tourist resort;
·community use limited to community activity centre, community theatre, cultural facility, health facility, and educational establishment further limited to adult education;
·drink establishment;
·funeral parlour;
·indoor entertainment facility;
·indoor recreation facility;
·business agency;
·financial establishment; and
·store.
A relevant condition was Condition A4:
REGISTRATION OF VARIATION
Prior to the registration of the Instrument giving effect to this approval, the Lessee(s) must surrender the existing Crown lease for Block 19 Section 29 Division of Braddon (Volume 1533: Folio 45) and register, at the Office of Regulatory Services, the new the (sic) Crown lease giving effect to the approval of Development Application (DA) No. 200913948 granted on 20 August 2009.
On 18 May 2012, the applicant filed an application seeking administrative review of the Notice of Decision of 22 March 2012 stating that ‘this approval decision should have included ‘residential use’ as part of the approval’.
The applicant contends that ‘residential use’ was contemplated in DA2 and if it was not, the Notice of Decision should be amended to include ‘residential use’.
The respondent contends that approval of ‘residential use’ in DA2 could only have been included in its partial approval of DA2 if the applicant had applied for ‘residential use’. The respondent says the applicant did not apply for it.
There are two agreed issues for decision:
a. whether DA2 contemplated that ‘residential use’ be added to the purpose clause of the Crown Lease in respect of the site;
b. if not, whether the development application can now be amended so as to contemplate ‘residential use’.
More simply stated, the two questions are:
· Was ‘residential use’ contemplated in DA2?
· if not, can DA2 be amended to include ‘residential use’?
The Hearing
The matter was heard on 26 November 2012. The Tribunal had before it the documents provided by the respondent on which its decision was based (“the T Documents”), the submissions and statements of facts and contentions filed by each party as well as witness statements and other exhibits tendered in evidence. The applicant was represented by Mr J. Hartley and the respondent was represented by Mr L. Stawski.
The applicant called no oral evidence. Evidence for the respondent was given by Ms Susan Messer.
Was ‘residential use’ contemplated in DA2?
The relevant law
This is a matter to be determined on an objective analysis of the application Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14 [at 25]. A development application must be ‘viewed objectively and in a practical sense’ Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd [2001] SASC [16]. Butler v Kingaroy Shire Council [2006] QPEC 93 [at 17] (“Butler”) gives some guidance as to the meaning of ‘construed objectively’…[t]hat is to say, its meaning is that conveyed to the ordinary reader’.
It is clear that a planning authority must go beyond the use/s asserted in a development application in determining an application Jackson v Building Appeal Board (2010) 174 LGERA 290 [at 53]. A planning authority should ‘adopt a flexible and fair approach to the interpretation of an application’ [at 57].
In Paradise Development (Investments) Pty Ltd v District Council of Yorke Peninsula [2008] SASC 139, the Supreme Court of South Australia made clear that
‘the planning authority should not simply rely on the description of the proposed development in the development application…Instead, the planning authority has a duty itself to examine the plans which accompany the development application and any other information provided by the applicant and determine the nature of the development.’
Applying the law
The development application for DA2 consists of:
· the Development Application form,
· a Development Application Letter of Appointment,
· a Lease Variation Proposal report,
· a letter setting out a summary of assessed value,
· a Lease Variation - Statement Against Criteria report [all contained in T152-181], and
· a Change of Use Charge Assessment [Exhibit 2].
The Development Application form, in the section headed ‘Fully Describe Your Proposal’, refers to the application as ‘Crown Lease Variation to vary the purpose clause by adding the following uses’. Residential use is not included in those uses.
The Development Application Letter of Appointment does not set out the proposed uses.
The Lease Variation Proposal report, in the section headed ‘Proposed Lease Variation’, refers to the application as being ‘to vary the purpose clause by adding the following uses’. It does not include residential use as an additional use.
The letter setting out a summary of assessed value does not consider the proposed uses.
The Variation - Statement Against Criteria report states (at p4) that ‘the proposal is to vary the purpose clause by adding the following uses: [a list of various uses]…No other variations are sought’. The report does not include residential use in those additional uses.
The Change of Use Charge Assessment states (at p13) that the development application ‘seeks to vary the Crown Lease purpose clause to include [a list of various uses]’. This list does not include residential use.
DA1 includes residential use. A number of documents that constitute DA2 assume that the approved but unregistered amendments to the purpose clause of the Crown Lease consequent on DA1 have been or will be made. The documents are:
·the Lease Variation Proposal report assumes the DA1 approved development as the ‘Existing Crown Lease Clauses’,
·the Change of Use Charge Assessment assumes the DA1 approved development as the existing ‘Purpose Clause’, and
·the Change of Use Charge Assessment assumes ‘the resulting purpose clause’ to be a combination of the DA1 approval and the DA2 application.
The Change of Use Charge Assessment values the ‘after value’ of the site as including the potential for ‘14 resi units’ within the anticipated total GFA. The ‘before value’ of the site is not based upon GFA calculation and does not contemplate residential use. However the assessment provides for a Nil (upgraded to negligible in subsequent correspondence) change of value. A Nil change in value gives rise to a reasonable inference that DA2 did not seek to add residential use.
The tribunal is satisfied that there is nothing in the bundle of documents constituting DA2 that can be objectively construed as a request for variation of the lease to include residential use.
Can DA2 be amended to include ‘residential use’?
The relevant law
The scope of the tribunal’s ‘amendment’ approving power is not open ended. The tribunal recited in Walkington v ACTPLA [2010] ACAT 81 (‘Walkington’) [at 27] with approval the comments of Crispin J in McKenzie v ACT Planning and Land Authority [2004] ACTSC 80 (‘McKenzie’) [at p21] that a tribunal is ‘clearly not entitled to consider a completely different development application’. Instead what is open to the tribunal (now standing in the shoes of the respondent) is to apply the statutory formula provided for in section 144 to 146 of the Planning Act to amend a development application in limited circumstances.
Relevantly, section 144 to 146 provide:
144 Amending development applications
(1) The planning and land authority may, if asked by the applicant, amend a development application.
(2) However, the planning and land authority must not amend the development application unless satisfied that—
(a) the development applied for after the amendment will be substantially the same as the development applied for originally; and
(b) the assessment track for the application will not change if the application is amended.
145 Referred development application amended
(1) This section applies if—
(a) a development application has been amended under section
144; and(b) before it was amended, the application was referred to an
entity under division 7.3.3.(2) The planning and land authority must refer the development application to the entity.
(3) A referral under subsection (2) must include a brief description of how the application has been amended since the entity last saw it.
(4) However, if the planning and land authority is satisfied that the proposed amendment of the application does not affect any part of the application in relation to which the entity to which the application was referred made a comment, the authority need not refer the proposed amendment to the entity.
146 Notice of amended development applications
(1) This section applies if—
(a) the planning and land authority amends a development
application; and(b) the making of the application has been publicly notified.
(2) The planning and land authority must publicly notify the amended application under division 7.3.4 (Public notification of development applications and representations).
(3) However, the planning and land authority may waive the requirement to publicly notify the amended application for development approval if satisfied that—
(a) no-one other than the applicant will be adversely affected by the amendment; and
(b) the environmental impact caused by the approval of the amendment will do no more than minimally increase the environmental impact of the development.
Section 144(2) provides the threshold considerations. The parties accept that the amendment sought will not change the assessment track and that therefore section 144(2)(b) is satisfied. The question for decision by the tribunal is whether the amended development sought is ‘substantially the same’ so as to satisfy section 144(2)(a).
Meaning of ‘substantially the same’
Some guidance is provided in decisions considering a similar legislative licence permitting amendment in section 4.1.52 of the Integrated Planning Act 1997 (Qld). That section permits amendment which is only ‘a minor change’.
In Butler, Brabazon J cites two ‘influential circumstances’ as being relevant to the consideration of whether a proposed change is ‘a minor change’:
a. is the change likely to be more acceptable or more objectionable to those who have objected?
b. is the change such that it would be likely to cause a person to make an objection if available?
These ‘tests’ were considered by the Planning & Environment Court of Queensland (QPEC) in Studio Tekton Pty Ltd v Redland Shire Council [2006] QPEC 107 (“Studio Tekton”). The court cited with approval Rackemann DCJ’s remarks in Heilbronn & Partners & Ors v Gold Coast City Council [2005] QPELR 386 [at 10], that the power to modify is beneficial and should be applied flexibly. The court also cited Robin DCJ in Cooroy Golf Club Inc v Noosa Shire Council [2001] QPELR 431 [at 11] to the effect that a modification is minor if ‘not materially different from the original one’ and that ‘minor’ is a relative term which ‘must be addressed against the application in its unmodified state’.
In Studio Tekton, QPEC said that it should be possible to answer the question posed by Brabazon J’s first ‘influential circumstance’, with reasonable certainty because objections have already been made and an objective assessment can be made as to whether the views of objectors will be changed by the amendment. However, the answer to the question posed by Brabazon J’s second ‘influential circumstance’ is much more speculative.
This tribunal considered whether changes to a development application resulted in a development which was ‘substantially the same’ in the matter of Walkington. The tribunal applied section 144 of the Planning Act during a review of a decision relating to a development application for the construction of six residential units (5 attached and one separate) on an amalgamated block. During proceedings, the developer asked the tribunal to approve an amended development consisting of only four separate units. While these changes were described as ‘not insignificant’ by the tribunal, ‘the scaling down of the development so as to reduce impact [was seen as] a relevant consideration’ likely to be beneficial to objectors [at 30]. As such, the amended development was adjudged to be ‘substantially the same’. The reduced impact of the development would produce a change which also satisfied the first test suggested in Butler.
In Walkington the tribunal considered where the line should be drawn between conditions that amend an existing application and conditions that destroy the substance of the original application so as to constitute a new application. This reasoning is instructive for a determination under section 144. The test the tribunal used was drawn from Cambridge Credit Corporation Ltd & Another v Parkes Development Pty Ltd [1974] 2 NSWLR 590 (“Cambridge Credit”) in regard to amended conditions imposed by a decision-maker on a development approval. The court in Cambridge Credit held that the relevant test was whether ‘the condition imposed amounts to a complete rejection of the original development application?’ If the answer to that question is yes, the amended application is objectively a new application.
The ACT Supreme Court’s decision in the matter of McKenzie is somewhat analogous to Walkington. The Court was considering an appeal from a decision of the ACT Administrative Appeals Tribunal. In the course of the proceedings before the tribunal, the developer submitted amended plans which addressed the primary concerns of one of the objectors. The tribunal had been of the view that it could not assess the amended proposal because its function was ‘to review the decisions of others and not to itself act as an artificial decision-maker’ [at 14]. Crispin J rejected this view, holding that it was open to the tribunal to assess the amended proposal, subject to considering whether the amended plans involved ‘such a substantial departure from those originally submitted as to properly be regarded as a different application rather than a revision of some aspects of the original application…’ [at 18]. The court held that the amended plans were not a new application but rather an amended application which the tribunal could consider.
The applicant submits that the point of comparison for determining whether the proposed amended development application is ‘substantially the same’ as DA2 is the totality of the outcome of the respondent’s decision for DA2. The decision gave partial approval to amend the purpose clause to add various uses (which do not include ‘residential use’) subject to the satisfaction, inter alia, of Condition A4 requiring the surrender of the existing Crown Lease giving effect to the DA1 approved uses (which do include ‘residential use’).
It is the applicant’s contention that if this is the focus of the comparison, the proposed amended development application and DA2 are in fact identical. The applicant says that adding ‘residential use’ provides for an outcome that is substantially the same as that contemplated by the respondent when DA2 was partially approved.
The respondent submits that the correct point of comparison is (as per the words of section 144 (2) (a)) whether the amended development sought is ‘substantially the same as the development applied for originally’. On the respondent’s view what was originally applied for was a collection of uses listed under the heading ‘Fully Describe Your Proposal’ which do not include ‘residential use’. The Lease Variation Proposal Report which forms part of DA2 notes the ‘approved, but unregistered variation on this lease’ flowing from DA1 (which included ‘residential use’) but does not expressly or impliedly describe DA2 as applying for ‘residential use’.
As Ms Messer said in her oral evidence, describing the ‘Existing Crown Lease Clauses’ as being those approved in DA1, is ‘somewhat misleading’. At the time DA2 was lodged, these uses were not the actual ‘existing’ uses. This misleading position was carried forward in the combination of the unregistered DA1 uses and those uses sought in DA2 as equating to the ‘Proposed Lease Variation’. This ‘somewhat misleading’ position is not a sufficient basis to simply amend DA2 to include ‘residential use’.
The respondent further argued that the Lease Variation – Statement Against Criteria recites the proposal of DA2 as adding a specific set of uses (which do not include ‘residential use’) and which noted ‘No other variations are sought’.
The tribunal finds that the correct point of comparison is the ‘development applied for originally’. This development was for a specific set of uses, namely:
club, commercial accommodation use EXCLUDING tourist resort, community use EXCLUDING place of worship and religious associated use, drink establishment, emergency services facility, funeral parlour, indoor entertainment facility, indoor recreation facility, light industry, expand non retail commercial use so it includes business agency and financial establishment, and store.
Applying the law
As to the two ‘influential circumstances’ asserted as being relevant in Butler, no representations were received in relation to DA2 during the public notification periods, so there is no point of comparison by which to answer the first question (‘is the change likely to be more acceptable or more objectionable to those who have objected?’). The comments received from entities to which DA2 was referred at best, allow some speculation about an answer to the second question (‘Is the change such that it would be likely to cause a person to make an objection if available?). The EPA advised that the site should be assessed for the possible presence of land contamination and as a source of possible environmental noise. This was made a condition of the partial approval. TaMSD advised that approval should be conditional on an additional design and siting approval. This was made an advisory note to the partial approval.
The entity advice suggests that an amendment that adds ‘residential use’ would be likely to cause a person to now make an objection.
This view is supported by applying the test in Cambridge Credit used by the tribunal in Walkington. Asking the question ‘does the amended application amount to a complete rejection of the original development application?’ suggests that the development applied for after the amendment has the effect of ‘destroy[ing] the substance of the original development’ because it would now include ‘residential use’ which was not previously sought.
The tribunal finds that the application cannot now be amended to include ‘residential use’ because such an amendment would amount to a complete rejection of the development application.
Given the tribunal’s decision that DA2 cannot be amended under section 144 to include ‘residential use’, the considerations in section 145 (entity referral) and section 146 (public notification) do not come into play.
Conclusion
The Tribunal finds that:
a. DA201120304 did not contemplate that residential use be added to the purpose clause of the Crown Lease in respect of Block 19 Section 29 Braddon; and
b. amending the development applied for in DA201120304 to now include residential use would result in a development that is not substantially the same as the development applied for originally.
Decision
The Tribunal is satisfied that the respondent’s decision with respect to Development Application 201120304 to refuse to vary the purpose clause in the Crown Lease for the site so that the site can be used for residential purposes is the correct decision and that the decision should be confirmed.
………………………………..
Dr T. Foley
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 12/36
APPLICANT: CITY HILL PTY LTD
RESPONDENT: ACT PLANNING AND LAND AUTHORITY
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT: Meyer Vandenberg
RESPONDENT: ACT Government Solicitor
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Dr T. Foly
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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