Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority)
[2014] ACTSC 165
•4 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) |
Citation: | [2014] ACTSC 165 |
Hearing Date(s): | 3-7, 21 March 2014 |
DecisionDate: | 4 July 2014 |
Before: | Mossop M |
Decision: | See [341] |
Category: | Principal Judgment |
Catchwords: | ADMINISTRATIVE LAW – judicial review ‑ planning and development – public notification period – development approval – public register – associated documents – entity advice – provision of further information – application of planning codes |
Legislation Cited: | Acts Interpretation Act 1901 (Cth) s 15A |
Cases Cited: | Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR |
Texts Cited: | Aronson Dyer and Groves Judicial Review of Administrative Action (4th ed, 2009) |
Parties: | Concerned Citizens of Canberra Incorporated ( Plaintiff) Chief Planning Executive (Planning and Land Authority) ( Defendant) |
Representation: | Counsel: Mr P King ( Plaintiff) Mr J Hutton ( Defendant) |
| Solicitors: Snedden Hall & Gallop Solicitors ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number(s): | SC 254 of 2012 |
Mossop M:
Introduction
By its Further Amended Originating Application the plaintiff, an incorporated association called Concerned Citizens of Canberra Inc, challenges two decisions of the defendant, the Chief Planning Executive, made in relation to a development application lodged with the defendant on behalf of an incorporated association proposing to construct a mosque on a site in the Gungahlin town centre (the DA). The first decision which is challenged is a decision not to extend the public notification period for the DA (First Decision). The second decision which is challenged is the decision of the defendant to approve the DA (Second Decision).
Both decisions are challenged on a number of orthodox administrative law grounds. The Second Decision is also challenged on the ground that it involved a contravention of s 116 of the Australian Constitution and on the ground that it involved a contravention of the Human Rights Act 2004 (ACT) (HR Act).
The relief sought included orders under s 17 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) and orders to the same effect as prerogative writs and declarations. The defendant submits that the plaintiff lacks standing to seek the relief that it does.
Procedural History of Claim
The First Decision was made on 6 August 2012. Proceedings were commenced by Originating Application filed 9 August 2012. The plaintiff was incorporated on 13 August 2012. The Second Decision was made on 29 August 2012.
In February 2013 Sidis AJ heard a number of contested interlocutory applications and on 26 March 2013 gave a written decision in which she extended time for the commencement of the proceedings, granted leave to file a Further Amended Originating Application, refused an application to join the president of the plaintiff, Mr Irwin Ross, as a party to the proceedings, dismissed an application to dismiss the proceedings and ordered that the plaintiff provide security for costs in the sum of $25,000: see Concerned Citizens of Canberra Incorporated v Chief Planning Executive (Planning and Land Authority) [2013] ACTSC 50 (Concerned Citizens [No 1]).
The Further Amended Originating Application was filed on 30 April 2013. It took until 23 August 2013 before the proceedings were in a position to be listed for hearing. At that point the parties wished to accommodate the convenience of their counsel of choice and hence only sought a hearing date in March 2014 notwithstanding the availability of earlier dates upon which the Court could have heard the matter.
Neither the applicant for development approval nor the proponent of the development was joined as a party to the proceedings by the plaintiff. When the various interlocutory applications were before Sidis AJ her Honour made sure that the proponent of the development, Canberra Muslim Community Inc (CMC), was notified of the nature of the proceedings and of its right to be joined as a defendant if it wished to participate. A representative of the organisation appeared and made it clear that the organisation was aware of the proceedings and understood that its interests might be affected by the outcome of the litigation. While its representatives had observed the Court process from time to time the organisation did not wish to be joined as a party to the proceedings: see Concerned Citizens [No 1] at [33]-[35].
The defendant made an application for further security for its costs and on 13 February 2014 I made an order requiring the provision of limited additional security: see Concerned Citizens of Canberra v Chief Planning Executive (ACT Planning and Land Authority) [2014] ACTSC 24 (Concerned Citizens [No 2]).
Overview of Facts
The defendant is the Chief Planning Executive appointed under s 21 of the Planning and Development Act 2007 (ACT) (PD Act). Under s 10 of the PD Act the Chief Planning Executive is the Planning and Land Authority established by that section (the Authority) which, in turn, is said to be a body corporate: s 10(2)(a). Thus, rather unusually, the Authority is both a natural person (the Chief Planning Executive) and a body corporate. The staff of the Chief Planning Executive work within the Environment and Sustainable Development Directorate (ESDD) in an administrative unit referred to as the ACT Planning and Land Authority (ACTPLA).
The site of the proposed development is a block of land of 4590 m² located on the south side of The Valley Avenue, a dual carriageway road to the south-east of the Gungahlin Town Centre. As at August 2012, the site was vacant except for a remnant eucalypt tree and a temporary site office. The Crown lease over the site of the proposed development was granted on 8 August 2011 for a term of 99 years to CMC. The purpose clause of the lease permits a “place of worship” and “religious associated use” and ancillary to these uses a “community activity centre”. The Territory Plan has the effect that the land is zoned “CFZ Community Facility” (Community Facility Zone).
Immediately south of the site of the proposed development is a block of unleased Territory land. On 9 December 2011 the Authority, CMC and the Land Development Agency (LDA) ‑ an ACT Government agency with the function of developing and selling land on behalf of the ACT Government ‑ entered into a license agreement whereby CMC was licensed until 31 October 2021 with a further term until 31 October 2026 to use the land for “temporary car parking in association with activities carried out by [CMC] on the adjacent Block 2 Section 235 Gungahlin” (the Licence).
On 30 May 2012 the DA was submitted electronically to the Authority. The person who lodged the DA was a Mr Shamsul Huda of the company 4thD Planning & Design Pty Ltd. The proposed development was described as including “Place of worship or mosque building with associated wash areas and stores”, “Community activity centre or multi-purpose hall building with associated kitchen and stores”, and “Religious associated use facilities/buildings which include a small library, classrooms for religious teachings, computer lab etc”.
On 1 June 2012 staff at ACTPLA undertook an administrative check of the DA and it was assigned to the Technical Coordinator (Merit North), Mr George Cilliers. A staff member of ACTPLA was directed to undertake a “completeness check” of the application which involved verifying documentary completeness, calculating the development application fee and determining the type of public notification that was required and the agencies to which the application should be referred.
On 6 June 2012 the calculated development application fee was paid and the defendant accepted the proposal as having been formally lodged.
On 13 June 2012 the Customer Services section of ACTPLA emailed The Canberra Times to arrange for a notice to be published in the paper, which then occurred on 15 June 2012.
On 13 June 2012 a sign manufacturer was instructed by ACTPLA to prepare a sign for the DA and on 14 June 2012 the sign installer, Mr Eric Anastasiou, was directed by ACTPLA to erect the sign.
Also on 13 June 2012 the Customer Services section of ACTPLA sent emails seeking entity advice in relation to the DA to ActewAGL, something described as “Tree Protection” (which appears to be a referral to the Conservator of Flora and Fauna within the ESDD), the Territory and Municipal Services Directorate (TAMSD) and the Environment Protection Authority (EPA). Between 15 June 2012 and 25 July 2012 advice was received from each of those entities on one or more occasion.
The DA was publicly notified from 15 June 2012 until 6 July 2012. A number of written representations were received from members of the public during this period. Three representations were received after the closure of the public notification period and persons who made them were advised that they would not be taken into account.
One of the representations received was a letter dated 4 July 2012 from the solicitor who acts for the plaintiff in these proceedings, Mr Robert Balzola. His letter indicated that he acted on behalf of “Concerned Citizens of Canberra”, an unincorporated entity. Mr Balzola’s letter stated that his client was in the process of obtaining expert reports on the impacts of the proposed development and requested “an … extension of one month to provide our submissions to the authority”.
On 5 July 2012 Mr Ben Ponton, the acting Deputy Director-General Planning within ACTPLA, replied in a letter sent by email to Mr Balzola saying that the PD Act did not provide for an extension of time to submit representations on the grounds that had been sought but explaining that his letter would be accepted as a formal representation. I will return to Mr Balzola’s letter and Mr Ponton’s response later in these reasons.
During the notification period Mr Cilliers, who was responsible for the processing of the DA, received a number of telephone calls from members of the public including in relation to the notification signage. The issue of signage is one to which I will return below.
On 13 July 2012 Mr Balzola sent an email to Mr Cilliers asking a number of procedural questions including as to what his client’s “extension of time options” were. Mr Cilliers responded on 24 July 2012. On 1 August 2012 Mr Balzola sent a letter to Mr Cilliers which he asked to be treated as a formal application pursuant to s 151C(2) of the Legislation Act 2001 (ACT) (Legislation Act) for an extension of the public notification period under s 156(3) of the PD Act. The letter put forward a number of matters in support of the application for an extension. As with his previous correspondence the submission was said to be made on behalf of “Concerned Citizens of Canberra” although that was not an incorporated entity at that stage.
On 2 August 2012 Mr Cilliers acknowledged receipt of Mr Balzola’s letter. On the same day there was a meeting of the Major Projects Review Group (MPRG). The MPRG is a committee established within ACTPLA to provide advice in relation to development applications for major projects. The formal documents constituting or setting out the function of the MPRG were not in evidence however it provided advice to Mr Cilliers and to the defendant at two stages of the assessment of the DA.
On 2 August 2012 the MPRG considered a number of issues relating to the substance of the DA as well as the application for an extension of the public notification period. The MPRG resolved to await outstanding entity advice from TAMSD and the provision to it of a copy of the licence agreement relating to the adjoining land. In relation to the request for an extension of the public notification period, the MPRG resolved that such an extension was not warranted and that a letter should be provided to Mr Balzola setting out the reasons for that refusal.
As a consequence, the defendant signed a letter to Mr Balzola dated 6 August 2012 informing him that the application for an extension of the public notification period had been refused. The letter stated that ACTPLA was of the view that the prescribed timeframe of 15 working days provided for public notification was sufficient. I will consider the correspondence concerning Mr Balzola’s 1 August 2012 request for an extension of the notification period in more detail below.
On 9 August 2012 these proceedings were commenced. Plainly enough, at that stage they only related to the First Decision as the Second Decision had not yet been made.
On 13 August 2012 Mr Cilliers had further correspondence with Mr Huda relating to the Licence and the Islamic burial rituals that were proposed.
On 15 August 2012 Mr Cilliers prepared another submission to the MPRG which recommended that the MPRG support the approval of the DA subject to conditions. The MPRG met on 17 August 2012 and considered that minute. It resolved to support the approval on the basis that there be further consultation with ACT Health in relation to the requirements of the “deceased wash room” that was proposed as part of the development and required the imposition of a condition requiring work to be done on the adjoining land the subject of the Licence. Mr Cilliers engaged in correspondence with ACT Health between 17 and 22 August in relation to the wash room.
On 23 August 2012 there was a meeting of another committee within ACTPLA known as the Decision Assurance Panel. The precise function of this entity was not made clear but it appears to be an internal committee of senior staff who review the draft Notice of Decision prior to a decision on certain development applications being made by the Chief Planning Executive. The Decision Assurance Panel supported approval of the proposed development but suggested some changes to the draft Notice of Decision.
Although Mr Cilliers had commenced working on his assessment report prior to this date, on 27 and 28 August 2012 he completed that report and a brief to the Chief Planning Executive.
On 29 August 2012 the defendant decided to approve the DA subject to conditions and signed the Notice of Decision.
Overview of Planning Codes
Section 119 of the PD Act provided:
119 Merit track—when development approval must not be given
(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
…
“Relevant code” is defined in the Dictionary as “a code that the relevant development table applies to the proposal”. “Relevant development table” is defined as “the development table that applies to the proposal”. A “development table” is “the development table in the Territory Plan that covers the zone in which the development or development proposal is to take place (see PD Act s 54).” A development table is one of the things that must be contained in the Territory Plan: see ss 51 and 54 PD Act.
Under the Territory Plan, Block 2 Section 235 Gungahlin is within the Community Facility Zone. The Community Facility Zone Development Table, found in section 6.1 of the Territory Plan, provided that the following development was permissible with the minimum assessment track being the merit track: “place of worship”, “religious associated use”, “community activity centre”. Listed as prohibited development was: “funeral parlour”.
The relevant code with which development proposals in the Community Facility Zone had to comply was the Community Facility Zone Development Code (CFZ Code). That code also provides that “precinct codes” and “general codes” made under the Territory Plan may also apply to development in the Community Facility Zone. In the present case the following codes were also considered to be applicable:
(a)Gungahlin Town Centre Precinct Code;
(b)Parking and Vehicular Access General Code; and
(c)Crime Prevention Through Environmental Design General Code.
The codes which were mentioned in the evidence as applicable to the present development but which did not figure significantly in this case were the Bicycle Parking General Code (Bicycle Code), the Access and Mobility General Code and the Waterways: Water Sensitive Urban Designed General Code.
The Community Facility Zone Development Code provides that if there is an inconsistency between codes the order of precedence is precinct code followed by development code and finally general code.
Structure of these reasons
The plaintiff has claimed that there were various defects in the process leading to the making of the First Decision and Second Decision as well as defects in the decisions themselves. The plaintiff submits that these defects provide a basis for granting relief under the ADJR Act or alternatively prerogative relief in relation to the decisions. The plaintiff has deployed a wide range of arguments in support of its case. Given the number of different arguments presented by the plaintiff and the manner in which it put its submissions, it is most efficient to deal with the arguments of the plaintiff sequentially and describe the submissions put by the plaintiff at the relevant point in the reasons that follow.
Although logically antecedent to the plaintiff’s contentions, I will deal with the defendant’s submission that the plaintiff lacked standing to bring the proceedings at the end of these reasons.
Public Notification
The plaintiff submits that the defendant did not display the required sign notifying the public of the proposed development on the place to which the application related and that the sign was not erected until 25 June 2012, some 10 days after the commencement of the public notification period.
Statutory framework
A proposal such as that contained in the DA was required to be publicly notified under s 121 of the PD Act which provided:
121 Merit track—notification and right of review
(1) To remove any doubt, if a development proposal is in the merit track, the application for development approval for the proposal must be publicly notified under division 7.3.4.
(2) ...
Division 7.3.4 contained the following provisions:
152 What is publicly notifies for ch 7?
(1) For this chapter, the planning and land authority publicly notifies a development application if—
(a) ...
(b) for any other application for a development proposal—the authority notifies the application under—
(i) section 153 and section 155; and
(ii)...
Section 153 of the PD Act set out the requirements for notice of a DA to be given to the lessee of the adjoining premises. Section 154 applies where a development application includes an application to vary the lease. It set out the requirements for giving notice of a development application to holders of interests in the land registered under the Land Titles Act 1925 (ACT).
Section 155 sets out the content of the obligation on the Authority to publicly notify development applications. It is significant in the present case because the plaintiff submits that it was not complied with. It provided:
155 Major public notification
(1)If the planning and land authority must notify a development application under this section, the authority must do each of the following:
(a)display a sign on the place to which the application relates that states the development proposed to be undertaken;
(b)publish notice of the making of the application in a daily newspaper.
NoteThis section is subject to s 411 and s 412.
(2)The planning and land authority must display a new sign under subsection (1) (a) if, before the public notification period ends—
(a)the authority—
(i)becomes aware that the original sign is defective because its contents are incorrect, incomplete or include misleading information; and
(ii)is satisfied that the defect is likely to—
(A) unfavourably affect a person’s awareness of the timing, location or nature of the development proposal in the application; or
(B) deny or restrict the opportunity of a person to make representations about the application under section 156; or
(b)the authority becomes aware that a sign was not displayed.
(3)Subsection (2) does not apply if a sign is displayed, but is subsequently moved, altered, damaged, defaced, covered or had access to it prevented.
(4)The planning and land authority must publish a new notice under subsection (1) (b) if, before the public notification period ends—
(a)the planning and land authority—
(i)becomes aware that the original notice is defective because its contents are incorrect, incomplete or include misleading information; and
(ii)is satisfied that the defect is likely to—
(A) unfavourably affect a person’s awareness of the timing, location or nature of the development proposal in the application; or
(B) deny or restrict the opportunity of a person to make representations about the application under section 156; or
(b)the authority becomes aware that a notice was not published.
(5)A person commits an offence if—
(a)a sign is displayed under subsection (1) (a) or (2); and
(b)the person moves, alters, damages, defaces, covers or prevents access to the sign while it is required to be displayed.
Maximum penalty: 5 penalty units.
(6)An offence against subsection (2) is a strict liability offence.
(7)Subsection (2) does not apply to a person if the person acts with the written approval of the chief planning executive.
(8)The validity of a development approval is not affected by a failure by the planning and land authority to comply with this section.
Section 156 of the PD Act describes the statutory entitlement of any person to make representations in relation to a development application during the public notification period defined by s 157. Section 156 is significant in the present case because the First Decision was a decision not to exercise the power under s 156(3) to extend the public notification period. Sections 156-157 provided:
156 Representations about development applications
(1)Anyone may make a written representation about a development application that has been publicly notified under this Act.
Note Only developments in the merit track and impact track are required to be publicly notified (see s 121 and s 130). Also, the planning and land authority must re-notify some amended development applications (see s 146).(2)A representation about a development application must be made during the public notification period for the application.
Note Public notification periodfor a development application—see s 157.
(3)The planning and land authority may, by notice published in a daily newspaper, extend the public notification period.
Note The planning and land authority may extend the public notification period after it has ended (see Legislation Act, s 151C).(4)If the planning and land authority extends the public notification period under subsection (3), the authority must give the applicant for the development approval written notice of the extension.
(5)A person who makes a representation about a development application may, in writing, withdraw the representation at any time before the application is decided.
(6)To remove any doubt, a representation about a development application—
(a)may relate to how the development proposed in the application meets, or does not meet, any finding or recommendation of the EIS for the development; and
(b)must not relate to the adequacy of the EIS for the development.
NoteRepresentations about a draft EIS may be made under s 219.
157 Meaning of public notification period for development applications—Act
In this Act:
public notification period, for a development application, means—
(a)the period prescribed by regulation; or
(b)if the period prescribed is extended under section 156 (3)—the prescribed period as extended.
Section 28 of the Planning and Development Regulation 2008 (ACT) (PD Regulations) provided relevantly:
28 Public notification period—Act, s 157, def public notification period, par (a)
The following periods are prescribed:
(a)...
(b)for a development application notified in accordance with the Act, section 152 (1) (b)—15 working days after the day the application is notified.
If the application was notified on 15 June 2012 then 15 working day period after that day ended at the end of 6 July 2012.
Facts
The issue raised by the plaintiff was whether or not a sign had been placed on the site of the proposed development and whether it had remained there throughout the public notification period.
At the request of officers of ACTPLA, Mr Eric Anastasiou, a contractor to the Authority, erected a sign on the site on 15 June 2012. In order to identify the site Mr Anastasiou used a block and section map in addition to the map which was supplied at the time he received instructions to erect the sign. In cross-examination it was suggested to Mr Anastasiou that he did not in fact erect the sign on that date. However I accept his evidence that he erected the sign on the date that he was instructed to do so. He was not cross-examined in any manner that would throw doubt on the reliability of his method of identification of the site using both the map given to him and the block and section maps that he routinely used as part of his job. Further, notwithstanding that the block was located within an open paddock, identification of the location of the block would have been relatively straightforward having regard to the location of the intersection between The Valley Avenue and Hinder Street as a point of reference. As a consequence I also accept his evidence that he erected the sign within the boundaries of the block the subject to the development proposal. He appeared to me to be a straightforward witness who was required to perform a particular task that had limited parameters and he is likely to have performed the task in accordance with the parameters he was given.
On 26 June 2012 a member of the public communicated to Mr Cilliers that the sign on the land was not visible. Mr Cilliers reported this to Michael Johnson, the supervisor for the Notification Team within ACTPLA. On the afternoon of 26 June 2012 Mr Johnson drove to the site and hammered the sign firmly back into the ground with a car jack. He took a photo of the position of the sign. He subsequently worked out by reference to the photos taken on that day and an aerial photograph of the site with cadastral information superimposed upon it that the position where he had re-erected the site was approximately 10 m to the west of the western boundary of the block. His evidence was that there was a hole near where he found the sign on the ground which matched the size of the stake that was attached to the sign and that he put the stake back into that hole. On 27 June 2012 he went back to the site to make sure that it was still in place and took photos of it in position. He drove past the site two or three times between that date and the end of the notification period and saw that it was in place on each such occasion.
The evidence of Mr Adrian Adair, vice-president of the plaintiff, was that he frequently drove past the site between early June and 25 June 2012 and did not observe any sign on the block. He said that the first time a public notice was evident to him was on the afternoon of 26 June 2012. His evidence was that the sign was erected on the block slightly to the west of the centre of the northern boundary of the block.
The evidence of Susan Miller, another witness called by the plaintiff, was that she drove past the site a number of times each week. She had been informed by Mr Adair that the proposed development on the site had been notified on the Authority’s website and she stopped on one occasion and saw the sign lying on the ground. Her recollection was that the sign was up after that for roughly between 8 and 10 days.
Mr Anastasiou attended the site on 9 July 2012. He observed that the sign was lying on the ground within 5 to 10 m from where he erected it on 15 June 2012. He took the sign away for disposal.
The only significant potential inconsistency in the evidence is between Mr Anastasiou who said he erected the sign on the block and Mr Johnson who said that he re-erected the sign 10 metres to the west of the western boundary of the block in a hole which matched the stake for the sign. The existence of a hole that matched the stake would be consistent with that being the location where the sign was originally erected by Mr Anastasiou. It would also be consistent with the sign having been moved and erected there at some stage after Mr Anastasiou erected it in its original location or alternatively there being, for reasons which are unexplained, a hole matching the dimensions of the stake. For the reasons which I set out earlier, I accepted Mr Anastasiou’s evidence that he erected the sign on the block. While I accept Mr Johnson’s evidence about the existence of a stake-sized hole that must be a result of the sign being moved after it was placed there or there being a hole there for some other reason.
Having regard to this evidence my findings are, in summary:
(a)Mr Anastasiou erected the sign on 15 June 2012 within the boundaries of the block;
(b)At some stage between 15 and 25 June 2012 the sign was pulled out or knocked over. Notwithstanding the evidence that there was considerable rain on 22 June 2012, the likelihood of it having fallen over of its own accord is remote and it is likely that it was pulled down or knocked over by a person or persons opposed to the development;
(c)On 26 June 2012 the sign was re-erected by Mr Johnson in a location 10 metres to the west of the western boundary of the site; and
(d)The sign remained erected until shortly before 9 July. Having regard to the observations of Ms Miller that it was up for a period of roughly 8 to 10 days, the observations of Mr Johnson that he observed it in place on a number of occasions after he had re-erected it and Mr Anastasiou’s observation that it was on the ground when he returned to collect it, it is likely to only have been knocked over or taken out and left on the ground by a person or persons opposed to the development during the weekend of 7-8 July 2012.
Consideration
Section 155(1) of the PD Act imposes an obligation on the Authority to “display a sign on the place to which the application relates”. The concept of “the place to which the application relates” is not defined but the language of the section is more consistent with the obligation being to place the notice at a point that is on or within the boundaries of the land where the development is proposed to be undertaken than merely to place it in the vicinity of that land.
Section 155(2) imposes an obligation to put up a new sign if the original sign is defective because it is incorrect, incomplete or includes misleading information or if the authority “becomes aware that a sign was not displayed”. The precise content of that latter obligation is made clear by subsection (3) which provides that subsection (2) “does not apply if a sign is displayed, but is subsequently moved, altered, damaged, defaced, covered or had access to it prevented”. The only ambiguity that might arise is that subsection (3) does not specifically refer to the possibility of the sign being removed. In my view, particularly having regard to the terms of subsection (5), the reference to “moved” should be read as including moved to a place unknown or away from the place, that is, removed.
Similarly, it is not clear why paragraph (2)(b) is necessary in that there should really be no requirement for an obligation to put up a “new sign” if the Authority was aware that no sign had ever been displayed. In those circumstances the original obligation to display a sign would continue. Notwithstanding these difficulties with the drafting of the section, in my view subsections (2) and (3) should be read as not imposing an obligation to put up a new sign if the original sign was displayed but it was moved, altered, damaged, defaced, covered or had access to it prevented.
Of fundamental significance in the present case is s 155(8). That subsection makes it clear that a failure by the Authority to comply with the obligations in the rest of the section does not affect the validity of a development approval.
Subsection (8) makes it clear that the legislature has reached a compromise between the significance of the public being notified of development proposals and the administrative inconvenience and commercial undesirability of development approvals being invalidated because of a failure to give such notice. Such a legislative compromise may well have been influenced by the different context in which the provision was enacted compared with those situations where a State law is designed to regulate the conduct of a variety of small approval authorities and where the enacting government plays a less significant role in land development itself.
In any event, whatever the reasons for s 155(8), its terms make it clear that the lack of public notification by reason of any defects with the sign or its erection cannot directly affect the validity of the Second Decision.
I leave aside questions that might arise in the case of a deliberate failure to carry out notification under s 155. In such a case the subsection may not preclude a challenge to the validity of the decision based on bad faith or improper purpose. I do not need to investigate or resolve whether or to what extent that might be the case because in my view the evidence did not go anywhere near establishing bad faith or an improper purpose in this case. In my view s 155(8) also precludes such a defect being used indirectly as a means of challenging the Second Decision, for example, by asserting that the failure of public notification led to the Authority failing to take account of a relevant consideration. The provision does not, however, prevent a defect in the public notification process being a matter that could be taken into account the Authority in deciding whether or not to extend the period of public notification.
In the circumstances of this case I am not satisfied that there was any non-compliance on the Authority’s part with the obligations under s 155 and I am not satisfied that any circumstance relating to the public notification under s 155 affects the validity of the First Decision or Second Decision.
The public register and associated documents
The plaintiff submits that there was no public register as was required to be kept under Part 3.4 of the PD Act or, alternatively, that if there was a public register it did not contain the names of one or both of the applicants, a summary of the development proposal by the defendant or the required statement about public notification.
Statutory Framework
The provisions of the PD Act which relate to the maintenance by the Authority of a “public register” and “associated documents” were as follows.
27 Authority to keep public register
(1)The planning and land authority must keep a register (the public register).
(2)The planning and land authority may keep the public register in any form the authority considers appropriate.
28 Contents of public register
(1)The public register must contain the following:
(a)for each development application (unless withdrawn)—
(i)the date the application was lodged; and
(ii)the applicant’s name; and
(iii)the location of the proposed development; and
(iv)a summary by the planning and land authority of the proposed development; and
(v)if the application has been, or is being, publicly notified under division 7.3.4; and
(vi)whether the application has been amended under section 144; and
(vii)if representations under section 156 (other than representations that have been withdrawn) have been received on the application; and
(viii)whether the Minister has decided to establish an inquiry panel to inquire about an EIS for the development proposal to which the application relates;
NoteInquiry panels are established under pt 8.3.
(b)if a development application has been decided under section 162—
(i)the date the application was decided; and
(ii)whether the application has been approved, approved subject to a condition or refused; and
(iii)whether the decision was made by the Minister after calling in the application under division 7.3.5; and
(iv)whether the decision on the application has been reconsidered under division 7.3.10; and
(v)whether the approval has been amended under section 197;
...
(2)The public register may contain any other information that the planning and land authority considers appropriate.
(3)However, the public register must not contain—
(a)associated documents for development applications, development approvals or leases; or
Note Associated document—see s 30.
(b)the name of the applicant for a controlled activity order.
...
29 Inspection etc of public register and associated documents
(1)The planning and land authority must ensure that, during business hours, the public register and associated documents are available for public inspection.
(2)The planning and land authority must allow people inspecting the public register and associated documents to make copies of, or take extracts from, the register and associated documents.
30 Meaning of associated document—pt 3.6
(1) For this part, each of the following is an associated document for a development application (other than an application that has been withdrawn):
(a)information required under section 139 (2) (c), (d) or (f) (i) to accompany an application;
(b)an assessment required under section 139 (2) (e) to accompany the application;
(c)a completed EIS required under section 139 (2) (f) (ii) to accompany the application;
NoteFor when an EIS is completed, see s 209.
(d)a survey certificate required under section 139 (2) (i) to accompany the application;
(e)an estate development plan required under section 139 (2) (n) to accompany the application;
(f)if the planning and land authority has asked for further information under section 141—information provided in accordance with the request;
(g)if the planning and land authority corrects the application under section 143—the notice of the correction (see s 143 (2));
(h)if the applicant has asked the authority to amend the development application under section 144—any document provided by the applicant to support the request;
(i)an agreement by an entity to the development proposed in the application (see s 148 (2) (b));
(j)if the application is referred to an entity under division 7.3.3— the advice of the entity in relation to the development application (see s 149 (2));
(k)if 1 or more representations have been made under section 156 about the application—each representation (other than a representation that has been withdrawn);
(l)if the Minister decides the application—the statement by the Minister in relation to the application presented to the Legislative Assembly under section 161 (2);
(m)the notice of the decision on the application given under division 7.3.8;
(n)if the applicant for the development application applies under section 191 for reconsideration of a decision to refuse to approve the development—any information included in the application;
(o)if the planning and land authority reconsiders a decision to refuse to approve the development—the notice of the decision on reconsideration under section 195;
(p)a plan, drawing or specification of a proposed building, structure or earthworks if the plan, drawing or specification—
(i)is part of the application (whether as originally made or as amended); or
(ii)is approved as part of the approval of the application under section 162; or
(iii)is required to be prepared by the applicant under a condition of an approval before the development, or a stated part of it, starts;
(q)if an inquiry panel inquires about an EIS for the development proposal to which the application relates—the report the panel gives the Minister under section 230 on the results of the inquiry.
NoteSubsection (3) contains an exception to this subsection.
(2)For this part, each of the following is an associated document for a development approval:
(a)if the approval holder applies under section 191 for reconsideration of the decision to approve the development subject to conditions—any information included in the application;
(b)if the planning and land authority reconsiders the decision to approve the development subject to conditions—the notice of the decision on reconsideration under section 195;
(c)if the planning and land authority corrects the approval under section 196—the notice about the correction (see s 196 (2));
(d)if the approval holder has applied to amend the approval under section 197—any information included in the application;
(e)a plan, drawing or specification of a proposed building, structure or earthworks if the plan, drawing or specification is required to be prepared by the applicant under a condition of an approval before the development, or a stated part of it, starts.
(3)However, for this part, an associated document does not include—
(a)the plans, drawings or specifications of any residential part of a building or proposed building, other than plans, drawings or specifications that only show the height and external configuration of the building or proposed building; or
(b)information in relation to which an exclusion application has been approved under section 411; or
(c)information that must not be made available to the public under section 412.
Evidence
Frederick Arugay, the assistant manager of the Customer Services Section at ACTPLA gave evidence which explained how documents relating to a development application were managed by the Authority and hence how the obligations in ss 27-30 of the PD Act relating to the public register and associated documents were met. Mr Arugay explained that there were two software programs of particular relevance to the development application process and the storage of documents within the Authority. The development application process is handled by a program known as “e-development”. This enables development applications to be made and processed electronically. It is the customer interface for lodging and tracking development applications and is also used to allocate work in relation to a particular development application to officers of ACTPLA. ACTPLA operates an electronic document management system rather than a paper based filing system. The document management system is supported by a computer program called “Objective”. Each development application is assigned a file number in Objective. All documents and information related to the development application are stored within the file in a series of folders and subfolders. Documents will be added to that file during the course of the processing of the development application.
The e-development program generates a summary of the information recorded in respect of a DA. It is that summary which the Authority regards as the public register for the DA. A copy of the public register in relation to the present application was pages 227-229 of the exhibit to Mr Arugay’s affidavit.
Members of the public are able to view the public register by attending one of the two ACTPLA shopfronts in Dickson or Mitchell. If a member of the public tells one of the counter staff at the shopfront that he or she wishes to view the public register in respect of a particular DA that staff member will call up the relevant part of the public register on a computer screen using e-development and that register can be viewed by the member of the public.
Similarly, associated documents are made available in the same way that the public register is made available, namely, if a member of the public attends one of the shopfronts and asks to view an associated document the document is called up by the shopfront counter staff on Objective and can be viewed by the member of the public on screen. For a fee, shopfront staff will print them or load them onto a CD for the member of the public to take away.
Access to the public register and associated documents
The plaintiff submitted that the material related to a development was not accessible to the public and hence there has not been compliance with s 29 of the Act because:
(a)specialised knowledge was required to understand the descriptions of the documents shown on the program;
(b)staff assistance was required to access this information; and
(c)staff permission was required to access the information.
The obligation in s 29 is to ensure that during business hours the public register and associated documents are available for public inspection. The fact that it might be necessary to gain some assistance from a staff member to access them or that the description of the documents on an index might require some interpretation are matters which apply equally whether or not the documents are stored in electronic or paper form. While the terms of the index might not be immediately obvious to a lay member of the public, that fact alone does not mean that s 29 is not being complied with. There is no reason to suspect that sensible explanations of the different categories of document are not available from the Customer Services staff and if they were not then a member of the public would have a statutory entitlement to look laboriously through every document one by one just as if they had been unhelpfully dumped with a paper file to look through.
The third complaint, namely that staff permission was required to access the information, is not made out on the evidence. The system described by Mr Arugay is one which does not involve a discretion on the part of the Customer Services officers to refuse to provide access to a member of the public who wishes to view either the public register or the associated documents. Further, there was no evidence called on behalf of the plaintiff that there had been any refusal relevant to this case to permit viewing of the public register or associated documents.
Content of the public register
The plaintiff alleges that the Authority failed to comply with the PD Act in relation to the content of what the Authority said was the public register. The plaintiff submitted that the register did not contain certain information required by the Act. I will address each of the types of information of concern to the plaintiff individually.
Section 28(1)(a)(ii): “the applicant’s name”
In relation to the requirement in s 28(1)(a)(ii) that the public register include “the applicant’s name”, the plaintiff makes two points. The plaintiff first notes that s 139(3) and s 139(2)(b)(i) have the effect that even if the lessee of the land is not the person identified on the DA as being the applicant, the lessee is taken to be an applicant in relation to the application. Then it notes that the entry in the public register identified only 4thD Planning & Design Pty Ltd as the applicant and did not include the deemed applicant under s 139(3). Secondly, the plaintiff submits that Mr Huda was the actual applicant rather than his company, 4thD Planning & Design Pty Ltd.
There is a tension between the reference to “the applicant” in s 28(1)(ii) and the operation of s 139(3). Section 28 appears to contemplate a single applicant whereas s 139(3) deems there to be more than one applicant. The PD Act does, on occasions, differentiate between “an applicant” and “the applicant”. For example, s 141 refers to “an applicant” as does s 147, which deals with withdrawal of development applications and s 411 which relates to exclusion of material from public inspection. On the other hand s 144, which deals with amendment of applications, refers to “the applicant”. Section 143 specifically addresses the possibility that there may be more than one applicant, requiring ACTPLA to give notice of a correction to a development application to “each applicant”. The status of a person as “applicant” is significant for the purposes of rights of merit review which are described in Chapter 13 and Schedule 1 of the PD Act.
I am not satisfied that the PD Act deliberately draws a coherent distinction between “an applicant and “the applicant” so as to indicate that it draws a distinction between actual applicants and persons deemed to be applicants under s 139(3). The reference to a singular “applicant” is also presumed under s 145 of the Legislation Act to include the plural “applicants”. Therefore, for both of these reasons, the fact that s 28(1)(a)(ii) refers to “the” applicant, singular, is not in my view a sufficient indication that only the actual applicant and not the deemed applicant need be identified. As a result, the public register should have included the name of the persons who signed the application under s 139(2)(b)(i). It did not. Therefore, the public register failed to comply with the requirements of s 28 in that respect.
Notwithstanding the significance of public disclosure as evidenced by the terms of Part of 3.6 of the PD Act I am not satisfied that, in accordance with the test articulated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391, it is a purpose of the legislation that a development approval granted in circumstances where there had been non-compliance with s 28 (so far as it required disclosure of a deemed applicant under s 139(3)) be invalid.
I accept that the failure to comply with the requirements of s 28 might provide a basis for the grant of relief under the ADJR Act. However, I would, as a matter of discretion, decline to grant any prerogative relief or relief under the ADJR Act in relation to the failure to identify the deemed applicant in the register. I would so decline because of the minor nature of the non-compliance, the absence of any evidence of any detriment to anybody arising out of the non-compliance and the significant delay on the part of the plaintiff in bringing the proceedings to hearing.
The plaintiff’s second submission is that 4thD Planning & Design Pty Ltd, the entity identified on the register as the applicant, was not in fact the applicant. The DA was completed online using a DA “wizard”. That allows the person completing the document to select options for the completion of each section and, depending upon the option selected, different information is required to be inserted. Significantly for the purposes of the plaintiff’s argument, under the heading “Applicant Details”, in answer to the question “What type of applicant are you:” the person completing the form has selected “Business”. The information then requested commences with an ACN or ABN number followed by “company name” followed by personal details of a person. Although the evidence does not disclose what the other alternatives could have been selected apart from “Business”, the completed form that is in evidence makes it clear that the identified applicant was “4thD Planning & Design Pty Ltd”. Some confusion is introduced by the terms of the letters of appointment included with the application, one of which makes reference to appointment of “Mr Shamsul Huda of 4thD Planning Company” and the other simply of “Shamsul Huda”. However in my view the terms of the DA itself are sufficient to indicate that the applicant entity was the company rather than the individual. As a consequence I do not accept the plaintiff’s submission.
Section 28(1)(a)(iv): “a summary by the planning and land authority of the proposed development”
The plaintiff submits that the summary included in the register was actually prepared by the applicant and not by the defendant. It submits that it did not include essential parts of the development description provided for by the Territory Plan and the various codes including “place of worship”, “religious associated uses” or “ancillary activities centre” or the car park for a total of 179 spaces pursuant to the Licence.
While it appears that the description used for the purposes of public notification was the description that had been prepared by the applicant, there is not, in my view, any impediment for the Authority adopting the description that has been prepared by the applicant. The intent of the provision is to ensure that the Authority has control over the terms of what is publicly notified. That has the effect of ensuring that there is an appropriately worded description of the proposal and that the Authority is not stuck with giving notice using an inadequate description prepared by a applicant. As a consequence, in my view there was no failure to comply with the requirement of s 28 (1)(a)(iv).
Section 28(1)(a)(v): “if the application has been, or is being, publicly notified in division 7.3.4.”
The plaintiff submits that, contrary to s 28(1)(a)(v), although there was a reference to the date that public notification commenced there was no statement that the application has been or is being publicly notified under Division 7.3.4.
On this point, in my view the material that appeared in the document was sufficient. The document identified as the public register appears at pages 227-229 of the exhibit to Mr Arugay’s affidavit. While the form is not set out in a manner which is obviously designed to meet only the requirements of s 28, in relation to public notification it includes the following entries:
(a)under the heading Application Details: “Public Notification: Major”;
(b)under the heading Key Dates: “Notification Start: 15/06/2012”, “Notification Finish: 06/07/2012”.
Although these entries do not make specific reference to Division 7.3.4 of the PD Act in my view they are sufficient to meet the requirements of s 28(1)(a)(v). That paragraph can be read at either as requiring a statement that the matter is being public notified or a statement that it is being publicly notified under Division 7.3.4. In my view the section is not so prescriptive as to require inclusion of the terms of the Division of the PD Act in the public register itself rather than simply requiring inclusion of a statement as to whether or not it is being publicly notified pursuant to a statutory requirement to do so. Therefore, in this respect the content of the public register complied with the requirements of the PD Act.
Associated Documents
Associated documents as defined by s 30 of the PD Act are required to be available for public inspection but under s 28(3)(a) of the PD Act must not form part of the public register. The plaintiff makes two submissions:
(a)that documents falling within the concept of “associated documents” under s 30 the PD Act were included as part of the public register contrary to s 28(3); and
(b)that, contrary to s 29, they were not publicly available after 6 July 2012 because the website on which they could be found was taken down after that day because the public notification period had ended.
The plaintiff’s first submission depends upon the proposition that the whole of the e-development software system was the public register for the purposes of s 28. If the e-development software system as a whole was the public register then posting associated documents in it throughout the development application process was a breach of s 28(3) which requires the public register not contain associated documents for the development application. However, as pointed out above, it is the summary screen of the e-development program which is treated by the Authority as the public register. That summary screen does not contain associated documents for the development application. Rather, it is simply a summary containing specified information relevant to the application. The fact that it may be stored on the same computer system or form part of a linked software system that is operationally useful does not mean that the summary screen “contains” associated documents in breach of the requirement of s 28(3). Associated documents were not posted to that summary screen during the course of the development approval process. Rather they were stored and organised using the Objective system which does not form part of the e-development summary screen even though it forms part of an apparently integrated software system. Therefore the plaintiff’s submission that the associated documents were wrongly posted to the public register during the course of the development approval process is not correct.
The plaintiff submits that associated documents were not publicly available after 6 July 2012 when the website giving public notification of the proposal was taken down because the public notification period had ended. This submission wrongly suggests that the inclusion of some of the associated documents on the Authority’s website during the notification period was done in order to comply with the obligation to make associated documents publicly available. That is not correct. The posting of documents to the Authority’s website was an additional service provided for the convenience of the public rather than something that the Authority was required to do by reason of s 29 of the PD Act. The documents remained on the website for a number of weeks or months and were automatically removed some time after the end of the public notification period by the computer program that administered the website when the space available on the website was insufficient to maintain them and they were displaced by more recently posted documents. Therefore, the fact that the documents were removed from the Authority’s website some time after the end of the public notification period is irrelevant to the question of whether or not the obligation to make associated documents available in s 29 of the PD Act was complied with.
Therefore, neither of the plaintiff’s submissions provides a ground for reviewing either the First Decision or the Second Decision.
Provision of further information
The plaintiff makes three submissions about the provision of further information by the applicant to the Authority during the consideration of the DA.
The first two submissions relate to Mr Cilliers request for further information under s 141 of the PD Act. Sections 141-142 relevantly provide:
141 Authority may require further information—development applications
(1)The planning and land authority may, by written notice, ask an applicant for development approval to give the authority stated further information in relation to a development application.
(2)The request must—
(a)state the period within which the further information asked for must be provided; and
(b)state that the further information must be provided in writing.
Note A request for further information may affect the time for deciding a development application (see div 7.3.7).
(3)The period stated under subsection (2) (a) must be at least 20 working days or, if a shorter period is prescribed by regulation, the shorter period.
(4)The planning and land authority may, on application before the end of the period stated under subsection (2) (a), extend the period within which the further information must be provided once only, for a period not longer than 20 working days.
NoteThe planning and land authority may extend the period within which further information must be provided after the end of the period being extended (see Legislation Act, s 151C (3)).
142 Effect of failure to provide further information—development applications
(1)This section applies if—
(a)the planning and land authority has asked for further information under section 141 in relation to an application; and
(b)the applicant has not provided some or all of the information in accordance with the request.
(2)The planning and land authority may refuse the application under section 162.
On 12 July 2012 Mr Cilliers sent to Mr Huda an email which included:
Currently I have some technical difficulties with e-development, so I opted with this e-mail. Please provide the below information under s 141 - please upload via e-development.
There was then a list of matters that required the provision of further information including a requirement to do a parking and traffic study as well as an amended 12.5 metre truck turning template, a response to advice from the EPA and a list of 11 matters of detail which appear to have arisen during the course of the assessment of the proposal.
On 31 July 2012 Mr Huda provided an email with a large number of attachments to Mr Cilliers. That email provided a response in relation to each of the items in the three categories which I have identified above. It annexed a traffic and parking report from Bob Nairn Consultant Pty Ltd (the Nairn Report) as well as a number of revised plans. The email concluded:
I hope this addresses all the issues that you have raised and we look forward to your favourable decision on our DA. I will upload all the revised drawings and supporting documents through e-development by tomorrow at the latest. Should you have any query or need further information on the matter, please do not hesitate to call me on [a mobile number].
It appears that there were some ongoing difficulties with the e-development system. On 8 August 2012 Mr Cilliers sent an email to Mr Huda saying that the information was not accompanied by the appropriate application form for s 141 information. He noted that this may have been related to technical difficulties with e-development. He requested that the information be accompanied by the appropriate application form. On 9 August 2012 Mr Huda filled out the approved form, form 1G, and said that he had not been able to upload the documents and fill out the form online due to technical difficulties with e-development. He provided a completed version of form 1G which described the additional material that had been provided although he did not provide a further set of the documentation or his email with the form.
First submission: compliance with s 141
The plaintiff submits that the email sent by Mr Cilliers did not comply with the requirements of s 141 of the PD Act. Although the submission did not particularise the manner in which the request did not comply with s 141, I consider that the submission is correct. Section 141 permits the Authority by written notice to ask the applicant for development approval to give the Authority stated further information in relation to a development application. Subsection (2) provides that the request must (a) state the period within which the further information asked for must be provided; and (b) state that the further information must be provided in writing. Subsection (3) provides that the period must be at least 20 working days or, if a shorter period is prescribed by the regulations, the shorter period. No shorter period was prescribed.
The notice given by Mr Cilliers on 12 July 2012 does not comply with the requirements of s 141(2) in that it failed to state the period within which the further information asked for had to be provided. It also failed to specify that the information must be provided in writing although this can probably be implied by the fact that reference is made to the provision of the further information by uploading it to e-development.
Therefore, because of the failure to specify the time in which the information had to be provided, the request that was made by Mr Cilliers on 12 July 2012 was not, in my view, a request which complied with s 141 of the PD Act. However, for the reasons given in relation to the third submission below, the failure to comply with s 141 is not of any significance.
Second submission: use of approved form under s 425
The second submission made by the plaintiff is that the response provided by Mr Huda on 31 July 2012 was not provided on form 1G which was at the relevant time an approved form under s 425 of the PD Act. Section 425 of the PD Act provides that the Authority may approve forms for that Act. Subsection (2) provides “if the planning and land authority approves a form for a particular purpose, the approved form must be used for that purpose.” Section 255 of the Legislation Act contains further provisions in relation to the use of forms, including that a form may be approved for a provision of the relevant law even though the provision does not mention the form: s 255(3); substantial compliance with a form is sufficient: s 255 (4); and identifying particular requirements of forms that must be completed before it is taken to be properly completed: s 255(5). The provision contemplates that forms may be electronic forms.
The evidence described above shows that the relevant paper version of the form was ultimately completed subsequent to the provision of the documentary material. That was done because the electronic system was having “technical difficulties”. I am not satisfied that there has been any failure to comply with the requirements of s 425 where the approved form is only provided subsequently to the information which it was meant to accompany and where that has occurred because of technical difficulties with the electronic system by which the form would usually have been completed and documents lodged electronically. As a matter of substance, the approved form required to accompany the information was ultimately provided and that, in my view, is sufficient for compliance with s 425.
Having regard to my finding that the email of Mr Cilliers on 12 July 2012 was not in fact a request which complied with the terms of s 141 I am not satisfied that the response to that request was required to comply with requirements associated with information provided under s 141. Rather, the communications between the Authority and the applicant were communications to which s 141 did not apply and hence, had there been a failure on the part of the applicant to provide that information, the statutory consequences of a failure to comply with a request under s 141 would not have applied. Whether or not there are any consequences of this depends upon whether or not there is any restriction on the Authority obtaining information from an applicant outside the regime provided for by s 141. This is the issue raised by the plaintiff in its third submission.
Third submission: information outside s 141
The plaintiff’s third submission about the provision of further information to the Authority relates to the provision of information regarding the “deceased wash room” and in relation to what the plaintiff says is “the EPA objection as to noise”. This information was provided by email without any purported reliance on s 141. The plaintiff submits that this involved a failure to follow the procedures required by law because the Authority is confined to obtaining further information by express statutory procedures such as the provision of further information under s 141 or the amendment of the development application under s 144.
In relation to the provision of information related to the use of the “deceased wash room”, on 13 August 2012 Mr Cilliers requested that Mr Huda “provide an outline of the process involved in burial, in particular the process to be undertaken in the deceased wash room.” On the same day Mr Huda responded by email, describing the process to be undertaken in the washroom and the relationship between that process and prayers in the mosque.
In relation to what is described by the plaintiff as “the EPA objection as to noise”, Exhibit 27 demonstrates that there were some email communications between Mr Huda and a representative of the EPA following a meeting on 24 July 2012. On 25 July 2012 Mr Huda sent an email to the officer at the EPA to confirm the advice that was provided at the meeting in relation to the likely use of the Community Hall and the noise it may generate. Mr Cilliers was copied in to the email so that he too could see what had been provided by Mr Huda. Later the same day the officer at the EPA to whom Mr Huda had sent his email wrote to the Authority, copying in Mr Cilliers and Mr Huda, indicating that the EPA supported the proposed development provided it be a condition of approval that no amplified music be permitted on site and providing some further advice. It was not accurate to characterise this communication as being in relation to “the EPA objection as to noise”. However it is clear that Mr Cilliers was copied in to this email exchange and hence had access to the information contained in it provided by Mr Huda to the EPA.
The plaintiff’s submission necessarily involves the proposition that it is not open to the Authority to receive further information from an applicant other than in accordance with a request made under s 141 of the PD Act. That submission must be considered having regard to the terms of s 141 in the context of the provisions of Chapter 7 of the PD Act. The consequences of a failure to provide such information is that under s 142 the Authority is entitled to refuse the development application on that basis and that where a request under s 141 has been made within 10 working days after the day the application is lodged, the making of the request can have the effect of extending the period in which the development application must be decided under s 162: see ss 166-168. Where information is requested and provided then that information becomes an “associated document” under s 30(1)(f).
There is nothing in the PD Act which expressly constrains the capacity of the Authority to obtain information from an applicant other than pursuant to the process in s 141. If the process under s 141 is followed then the Authority is put in a better position if the applicant fails to provide the information because of the operation of s 142 and, where applicable, ss 166-168. Further, because such information is required to be provided with an approved form, the Authority obtains a declaration from the applicant on the approved form that the information provided is “true and complete”. As a consequence where the information is of a more significant nature, there are benefits to the Authority in requiring it to be provided formally pursuant to s 141. There are benefits to the public where the process under s 141 is followed because the response to the request becomes an “associated document” to which the public may have access under s 29: s 30(1)(f).
Notwithstanding these benefits of the use of the formal statutory procedure under s 141, that is not in, my view, sufficient to give rise to an implication that the Authority’s capacity to obtain further information is limited to obtaining further information pursuant to s 141. I do not consider that the desirability of matters of significance being disclosed to the public under s 29 is sufficient to give rise to an implication that s 141 is the only method by which additional information may be obtained from an applicant. In my view, s 141 is a formal tool which is available to the Authority and effectively compels the provision of information by an applicant, but the Authority is not compelled to use that tool if it considers that less formal means will be sufficient.
Therefore I am not satisfied that there is any basis for review of either the First Decision or Second Decision in relation to the manner in which the defendant obtained further information from the applicant for approval.
Entity Advice
There is a process under the PD Act that requires some development applications to be referred to other entities. Those entities are generally government entities but also include some utility providers. The process by which DAs are referred to entities and the consequences of such referrals are described in ss 148 to 151 of the PD Act which are as follows:
148 Some development applications to be referred
(1)The planning and land authority must refer a development application prescribed by regulation to an entity prescribed by regulation.
(2)However, the planning and land authority must not refer a development application to an entity under subsection (1) if—
(a)the authority is satisfied that the applicant has adequately consulted the entity in relation to the application not earlier than 6 months before the day the application is made; and
(b)the entity agrees in writing to the proposed development.
(3)A written agreement to a proposed development mentioned in subsection (2) (b) is taken to be advice received in accordance with section 149 in relation to an application for development approval for the development.
(4)To remove any doubt, if the planning and land authority is not required to refer a development application to an entity under subsection (1)—
(a)the authority need not refer the application to the entity before deciding the application; and
(b)the decision of the authority is not affected by the authority not referring the application to the entity.
149 Requirement to give advice in relation to development applications
(1)This section applies if a development application, including an amended application, is referred to an entity.
NoteAn amended application may be required to be referred to an entity under s 145.
(2)The entity must give the planning and land authority the entity’s advice in relation to the development application not later than 15 working days after the day the authority gives the application to the entity or, if a shorter period is prescribed by regulation, not later than the end of the shorter period.
Note 1A written agreement to a development proposal under section 148 (2) (b) is taken to be advice given in accordance with this section in relation to a development application for the proposal (see s 148 (3)).
Note 2For how documents may be given, see the Legislation Act, pt 19.5.
150 Effect of no response by referral entity
For this Act, if an entity fails to provide advice in accordance with section 149 in relation to a development application referred to the entity, the entity is taken to have given advice that the entity supports the application.
151 Effect of advice by referral entity
(1)This section applies if—
(a)a development application, including a development application amended under section 144, is referred to an entity; and
(b)the entity gives advice on the application in accordance with section 149; and
NoteAdvice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity.
(c)the planning and land authority or Minister approves the application; and
(d)the approval is substantially consistent with the advice.
(2)The entity must not act inconsistently with the advice in relation to the development application unless—
(a)further information in relation to the development proposed in the application comes to the entity’s attention (other than information mentioned in subsection (3)); and
(b)the entity did not have the further information when the entity gave the advice; and
(c)the further information is relevant to the advice the entity gave; and
(d)the entity would have given different advice if the entity had the further information before giving the advice.
(3)Subsection (2) (a) does not apply to further information in relation to a development proposed in an application if the information—
(a)was not required in the development application; and
(b)is required by the entity after the application is approved; and
(c)is consistent in all significant respects with information already provided by the applicant, except that it is more detailed.
(4)For this section, an entity acts inconsistently with advice in relation to a development application if—
(a)the advice is that the entity will issue or give an approval or other thing in relation to the development; and
(b)the application is approved; and
(c)the entity—
(i)does not issue or give the approval or other thing consistent with the advice; or
(ii)issues or gives the approval or other thing in a way, or subject to a condition, that prevents the applicant undertaking the development approved.
In my view, the plaintiff’s submission is without substance. The leasing by the Territory government of a single parcel of land within one of the town centres of Canberra to a religious organisation does not prohibit the free exercise of other religions. The granting of a lease gives an entitlement to exclusive possession and that carries with it the capacity to control who enters upon the land. The fact that a religious organisation associated with one faith has rights of exclusive possession in relation to real property does not prohibit the free exercise of religion by persons of other faiths or, indeed, persons of no faith. Neither the laws nor the executive action by the Territory in granting the lease to the defendant involves any prohibition on the free exercise of religion.
Some use was sought to be made by the plaintiff of the fact that the lease was granted at less than market rates. If the plaintiff’s argument was correct it is hard to see why the value obtained by the Territory for the grant of the lease would make any difference. However the evidence established that the lease and the licence were granted pursuant to a non-discriminatory policy implemented by legislation of granting concessional leases to religious organisations and licences to community groups (Exhibits 15 and 16).
Standing
Facts relevant to standing
The facts relevant to the standing of the plaintiff are limited.
Mr Irwin Ross applied to incorporate the plaintiff by application dated 9 August 2012. That application identified the total number of members as five, four of which were office bearers. Based on minutes of a meeting which occurred the previous day (Exhibit 10), it appears that the fifth member was the wife of the vice-president.
The objects of the association identified in the application for incorporation were: “to preserve the spirit and character of Canberra and through education, public awareness and lobbying.” The association adopted the model rules set out in the Associations Incorporation Regulation 1991.
The postal address for the association was a post office box in Mitchell. Mr Ross’ address was identified as an address in Higgins, a suburb some 14 kilometres away from the proposed development. The addresses of the office bearers of the organisation were not disclosed in the application, the address of each being simply care of the post office box of the incorporated association. The other evidence in the case discloses that one of the office holders resides in Palmerston, the suburb adjacent to the Gungahlin town centre to its south-west.
The certificate of incorporation which was in evidence indicates that the plaintiff was incorporated on 13 August 2012. Section 20 of the Associations Incorporation Act 1991 provides that an association is taken to have been incorporated from the date stated on the certificate of incorporation, that is, 13 August 2012.
On 9 September 2012 at a meeting said to be of the plaintiff, one of the committee members resigned and the wife of the vice-president was appointed as treasurer. One new member was nominated and accepted as a member. There was a discussion of the need for at least two other board members and the need to recruit more ordinary members. There was also discussion of the plans for opening the association’s bank account.
In September 2012 the plaintiff made a complaint to the Australian Press Council relating to five articles in The Canberra Times between 7 July and 17 August 2012 concerning the plaintiff and Mr Ross. There is no evidence as to the outcome of that complaint.
By the 10 February 2014 the plaintiff had 10 members. The application form for new members requires that “Two Current Members who personally know the proposed new member” must nominate the new member for membership.
By 1 March 2014, two days prior to the commencement of the hearing, the plaintiff is recorded as having 18 members. In minutes of a meeting of the plaintiff on that date the president, Mr Ross, is recorded as stressing that “we urgently need more members, especially in the Gungahlin region”. On that occasion a motion was passed which is recorded as being:
For its members to confirm their previous discussions and decisions over the past 18 months to commence court proceedings (Concern Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) and that we have, and will, continue to oppose the Canberra Moslem Community development at Eastern Valley Way, Gungahlin in the Australian Capital Territory, (as being contrary to the public interest and contrary to the interests of all members and supporters of Concerned Citizens of Canberra.
The minutes recorded various matters to do with the funding of the litigation and that the association’s bank account had a total of $4019.29.
Also admitted into evidence subject to a ruling on relevance was a supplementary statement of Mr Ross (Ex 9) the use of which I indicated I would limit to being evidence of Mr Ross’s state of mind rather than that of the plaintiff. I now admit that document on the basis that I indicated as, in my view, the state of mind of the members of an organisation may be relevant to standing. That statement expresses what are described as “Civil Concerns as to the preservation of character of Gungahlin and North Canberra”. Under this heading there are a series of paragraphs identified as (a)-(o) identifying various issues. Paragraph (a) relates to matters concerning the DA, planning issues and the current use of the land. The others can be summarised as a range of matters which indicate Mr Ross’s generalised hostility to the Muslim religion and concern about what he perceives to be its spread. The paragraphs include:
“With the spread of mosques/schools, the property value of the land diminishes greatly”,
“Local residents are often “encouraged” or intimidated to sell their homes at lower prices.”
“Halal food covers nearly every spectrum of our food consumption and the halal tax is forced upon all the major supermarket chains, e.g. Coles, Woolworths, Aldi and others, we are all our major foods are forcibly Halal certified, although not always openly labelled that way. … There is a growing amount of businesses that have been adversely affected by the imposition of Halal certification on the Australian economy… Halal certification is a multi-million-dollar industry in Australia, with all this public money being forcibly taken from the average Aussie shopping list and being funnelled into Islamic businesses/sources. Globally, this involves billions of dollars.”
“There is growing expression of violence and separation of an Australian way of life. The recent Sydney riots is an example and there are many often unreported or played down incidents of violence in Australia of an Islamic way of life, forced marriages, female genital mutilation. While these practices are not restricted to followers of Islam, the main proponents stemmed from Islamic practices.”
“Another effect of the negative effect of Islam growing in our nation is that public/governmental opinion is noticeably becoming anti-Christian and pro-Islam, for example in the Defence Forces.”
“It is readily seen in England, France, America and many parts of Europe and Africa a strong emergence of Sharia law that is quite separate to the existing legal frameworks of those countries. It is a fact that Sharia law emanates from many of the existing mosques around the world. Sharia law is totally opposed to western democracies and their ideals.”
Under the heading “Spiritual Concerns of CCC Inc” the statement says “The DA and its development represent a spiritual concern and challenge to the Christian beliefs of the members of the CCC Inc”. It then goes on to describe what Mr Ross considers to be the differences between Islam and the Christian and Jewish faiths. It does so in terms which do not reflect any degree of theological sophistication and would be likely to be considered rather controversial. There is no evidence about the extent to which the small number of other members of the plaintiff share the concerns expressed by Mr Ross.
Submissions on standing
The defendant’s submissions are as follows.
(a)The plaintiff has not established any real commitment to upholding the integrity of the ACT planning system all that it is a representative of community interest or concern. Even if it had demonstrated such a commitment that would still not give it standing.
(b)The spiritual cultural values said be associate with the plaintiff are so vague as to be meaningless. In so far as they exist they would not confer standing to challenge a decision under the PD Act. The views of Mr Ross are idiosyncratic religious or quasi-religious views which have not been demonstrated to be shared by other members of the plaintiff, shared by any substantial part of the community or representative of any established belief system.
(c)The plaintiff is not a representative local residents or community group.
(d)Standing is not attracted in relation to the matter by reason of the s 116 claim. That is because there is no constitutional bypass to the standing requirement and, in any event the s 116 claim is colourable so as not to confer standing.
In addition to contesting these submissions, the plaintiff makes a number of additional submissions in response.
(a)The defendant is precluded from raising the issue of standing having withdrawn its notice of objection to competency which it filed shortly after the commencement of proceedings and by not clearly raising the issue of standing prior to the hearing.
(b)The plaintiff was “an eligible entity” within the meaning of the ADJR Act on 9 August 2012 when it commenced proceedings and remained so today.
(c)The plaintiff is deemed to suffer material detriment by reason of s 419(1)(b) of the PD Act.
(d)The decision of the South Australian Supreme Court in Australian Conservation Foundation v South Australia (1990) 53 SASR 349 (ACF) indicates that the plaintiff has standing.
Leaving aside the particular submissions of the plaintiff relating to the amendments to the definition of eligible entity and the operation of s 419 of the PD Act the submissions of the parties did not draw a distinction between the standing requirement under the ADJR Act and for the purposes of the common law. I have proceeded on the basis that in this case there is no material difference in the application of the special interest tests and the requirement that the plaintiff be a person aggrieved for the purposes of the ADJR Act.
Principles
When the proceedings were commenced s 5 of the ADJR Act required that the applicant be “a person aggrieved by a decision to which this Act applies”. Section 3B provided that a reference to a person aggrieved by a decision included a reference to “a person whose interests are adversely affected by the decision”. The basic authorities on the concept of a person aggrieved by well-known. Argos v Corbell [2013] ACTCA 51 was a case where standing turned on issues which are not relevant here. However the Court of Appeal (at [29]) summarised some general principles on standing as follows:
(a) Unless an applicant is adversely affected to an extent greater than the public generally, such party does not have standing “to sue to prevent the violation of a public right or to enforce the performance of a public duty”:Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493(‘Australian Conservation Foundation’)at 526. It follows that a person seeking judicial review must have a “special interest” in the subject matter of the proceedings.
(b) The “special interest” rule is flexible and must be determined by reference to the “nature and subject matter of the litigation”: Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558. In the same vein, a “special interest” should be determined as “an enabling, not a restrictive, procedural stipulation”: Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 (‘Bateman’s Bay’) at [50].
(c) The requirement that an applicant for judicial review be a “person aggrieved” (s 5 of the ADJR Act) should also be construed broadly: Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning (1998) 100 LGERA 276 (‘Canberra Tradesmen’s Union Club Inc 100 LGERA 276’) at 284.
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In so far as the plaintiff‘s asserted interest in ensuring that the planning regime established by the PD Act is applied and enforced this alone is not sufficient to constitute a “special interest“. A person does not have a special interest merely because the person has a “belief, however strongly felt, that the law generally, or a particular law, should be observed“: ACF at 530-531, 547-548; Onus v Alcoa (1981) 149 CLR 27 at 53. “An allegation of non-compliance“ with the law “is not enough of itself to confer standing”: North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 at 512 (North Coast).
Since the decision in ACF, courts appear to have accepted that even small incorporated associations may be found to be persons aggrieved or have standing at common law in circumstances where by having regard to a number of different features of the activities and history of the organisation it can be said that the interests of the organisation extend beyond those of any other member of the public. This multifactorial approach is best illustrated by the decision in North Coast. In that case Sackville J found that a small environmental organisation which had a long track record of activity relating both to environment protection generally and to matters concerning the grant of woodchip export licences to a particular company. His Honour said (at 511-512) that while the authorities recognised that the phrase “person aggrieved” in the ADJR Act was a broad one it has never been held that,
the principles governing the award of declarations and injunctions under the general law have been superseded by different and broader conceptions under the ADJR Act.
The facts which His Honour considered were most important were set out in his Honour’s decision at 512-513. Firstly, North Coast was the peak environmental organisation in the north coast region of New South Wales, having 44 environmental groups as members. Its activities related to the areas affected by the operations generating the woodchips that were the subject of the export licence the subject of the decision. Secondly, North Coast had been recognised by the Commonwealth since 1977 as a significant and responsible environmental organisation. This recognition has taken the form of regular financial grants for the general purposes of the organisation. While the grants have been modest, they have been recurrent and reflect acceptance by the Commonwealth of the significance of the role played by North Coast in advocating environmental values. Thirdly, North Coast has been recognised by the Government of New South Wales as a body that should represent environmental concerns on advisory committees. Fourthly, North Coast has conducted or co-ordinated projects and conferences on matters of environmental concern, for which it had received significant Commonwealth funding. While these have not specifically concerned forest management or woodchipping, they reflected North Coast‘s standing as a respected and responsible environmental body. Fifthly, independently of North Coast‘s long involvement with successive woodchip export licences, it had made submissions on forestry management issues to the Resource Assessment Commission and has funded a study on old growth forests, focusing upon the area affected by the woodchip export licence. The decision in North Coast was applied by Higgins J in Manuka Business Association v Australian Capital Territory Executive (1998) 146 FLR 464.
In Ogle v Strickland (1987) 13 FCR 306 a Full Court of the Federal Court dealt with the standing of an Anglican priest and a Roman Catholic priest who sought to challenge the decision of the Censorship Board relating to the importation into Australia of an allegedly blasphemous film. The Court found that they did have standing. Although the judges differed in their reasoning, they held that the interests of the priests went beyond those of other members of the Christian community whose concern would be fairly described as being intellectual or emotional. Fisher J placed emphasis on the vocational and professional calling of the applicants. Lockhart J did as well, referring to the fact that they were in hierarchical Christian churches. He also considered the position of those in Christian sects that have little or no hierarchical structure but did not need to reach any conclusion in relation to their position. Wilcox J preferred a broader approach but also in the alternative emphasised the frustration of their professional activities which, on their case the film would occasion.
As I understood the plaintiff’s submissions it sought to establish standing both on a similar basis to that in North Coast as well as on the basis of spiritual or cultural concern similar to that in Ogle.
Consideration and conclusions on standing
My conclusions and reasons for those conclusions can be stated relatively briefly.
(a)The plaintiff does not have standing to challenge the First Decision because it did not exist when the decision was made. The interests of the incorporated association are distinct from the interests of those persons who made up the unincorporated association for whom Mr Balzola acted when he corresponded with the Authority. There are no relation back provisions in the Associations Incorporation Act 1991 which would permit any pre-incorporation activities to be taken to be the actions of the body corporate. Unlike in relation to rights of property where there is a statutory provision vesting property held on behalf of the association or proposed association by any person in the newly incorporated association: s 23, there is no provision of the Associations Incorporation Act1991 which deems activities undertaken by persons who subsequently become members of an incorporated association to be the actions of that incorporated association. Therefore the actions of Mr Balzola were not undertaken on behalf of the plaintiff but instead on behalf of an unincorporated association the membership of which there is no direct evidence. The First Decision was not in response to any request for an extension of time by the plaintiff. There is no evidence to show what the relationship was between the membership of the unincorporated Concerned Citizens of Canberra and the plaintiff apart from the fact that Mr Ross was the driving force behind both.
(b)Because the plaintiff did not exist at the time of the First Decision, the decision in Australian Conservation Foundation v South Australia (1990) 53 SASR 349 cannot assist it. In that case an entity with a statutory entitlement to make representations on an application for planning approval was found to have standing to challenge the development on the basis that an unlawful process had been adopted which had the effect of denying the plaintiff its statutory rights. The principle in the case can have no application in the present case because the plaintiff did not exist when the First Decision was made and hence was not denied anything.
(c)It is open to the defendant to assert that the plaintiff lacks standing. I am not satisfied with the way in which the defendant has conducted the proceedings precludes it from now raising an issue in relation to the standing of the plaintiff. The notice objection to competency which was originally filed addressed the logical problem that existed for the plaintiff that it had purported to commence proceedings prior to it coming into existence. It did not either expressly or impliedly involve a waiver of any argument in relation to standing. The defendant did not concede the standing of the plaintiff by opposing the joinder of Mr Ross before Sidis AJ. There was no evidence led of any agreement between the parties or any misconception on the part of the plaintiff about whether or not any contention in relation to standing had been waived by the defendant.
(d)The plaintiff cannot establish standing on a basis analogous to that established in North Coast. In the present case the evidence discloses that the only activities of the plaintiff have been the commencement and conduct of these proceedings, fundraising associated with that activity, and the complaint to the Press Council. Because the association did not exist until after the proceedings were commenced, it has no previous history of activities which could provide a basis for finding that when it commenced the proceedings it was a person aggrieved by the First Decision. Similarly, by the time of the Second Decision, the only activity of the plaintiff had been to commence proceedings in relation to the First Decision.
(e)In so far as the objects of the plaintiff could be deployed in support of a claim to standing they are not either alone or in combination with other factors sufficient. The objects of the organisation are those set out in its application for incorporation quoted above. They are at such a high level of generality to be unhelpful for the purposes of characterising the actual purpose and activities of the organisation. In any event even if the objects were directly related to the present proposal that would be insufficient of itself to establish standing. That is a consequence of the decision of the High Court in ACF: North Coast at 512.
(f)The plaintiff does not have standing on the basis of its spiritual or cultural values. While spiritual and cultural beliefs have been accepted by the High Court as a basis for standing, this is not a case where that authority can be applied. First, unlike in Onus or in Ogle the applicant is an incorporated association necessarily without any religious or spiritual beliefs. Second, the only evidence of religious or spiritual beliefs is the evidence in relation to Mr Ross who describes himself as a “pastor” at “Olive Tree Ministries”. He has no theological training. There is no evidence about his activities as a pastor or how long he has performed that role. It is clear from Exhibit 9, some extracts of which have been quoted above, he holds views which are very much against the acceptance or tolerance of the Muslim faith. Accepting that there are authorities which accord standing to organisations not on the basis of what they have done (such as North Coast) but who they represent (see Aronson Dyer and Groves, Judicial Review of Administrative Action (Thomson Reuters, 4th ed, 2009) at [11.100]) the evidence did not establish the interests of its members except in two respects. There was evidence of Mr Ross’ interests but that did not extend beyond mere intellectual or emotional concerns. There was some evidence of Mr Adair’s property interests but the evidence linking any affect on those interests to the development was limited and there was nothing that would demonstrate that those interests were held in common with other members of the association.
(g)The plaintiff was not “an eligible entity” within the meaning of the ADJR Act on 9 August 2012 and is not currently an eligible entity, if that was relevant. The submission of the plaintiff relying upon the definition of eligible entity is misconceived. As at 9 August 2012 the concept of “an eligible entity” did not exist in the ADJR Act. It was only introduced well after the commencement of these proceedings by an amendment to the Act in 2013. The insertion of a new s 4A in the ADJR Act by the Administrative Decisions (Judicial Review) Amendment Act 2013 which introduced the concept of eligible would not, if it applied, alter the standing of the plaintiff in the present case. Notwithstanding the liberalisation of standing requirements in relation to most administrative decisions, the Legislative Assembly carved out from that liberalisation decisions under the PD Act and the Heritage Act 2004 in relation to which it is still a requirement that the person’s interests would be adversely affected by the decision: see s 4A(2). The challenge in this case being to decisions under the PD Act, the requirement for an adverse affect on the plaintiff’s interests still applies. As a consequence, it is not necessary to determine whether those amended provisions could have any application in the present case notwithstanding that the proceedings were commenced prior to their enactment.
(h)The plaintiff is not deemed for the purposes of the ADJR Act to suffer material detriment by reason of s 419(1)(b) of the PD Act. The plaintiff’s submission on this point was misconceived. It appeared to be that by reason of the definition of “material detriment” in s 419 of the PD Act, the plaintiff became a person aggrieved for the purposes of the ADJR Act. How the link between these two Acts was made was not explained. The reason for the inclusion of a definition of “material detriment” in s 419 is because that term is used in Schedule 1 to the Act. Schedule 1 describes decisions which are reviewable by the ACT Civil and Administrative Tribunal. In some of these items in Schedule 1 an “eligible entity” is required to have suffered “material detriment” before it is entitled to seek merits review of the decision in the Tribunal. These provisions do not have anything to do with a claim for judicial review under the ADJR Act.
(i)The position of the plaintiff is not improved by the making of allegations of contravention of the Constitution. Standing remains a necessary requirement to raise a justiciable controversy and the plaintiff in the present case does not even have the claim that it is a taxpayer: cf Davis v Commonwealth (1986) 61 ALJR 32 at 35; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at 34. No connection has been identified by the plaintiff between its allegations of breach of the free exercise provision of s 116 and either itself or even its members.
As a consequence I find that the plaintiff does not have standing to bring proceedings under the ADJR Act or for prerogative relief.
Orders
The plaintiff does not have standing to bring proceedings to challenge the First Decision or the Second Decision. The plaintiff’s proceedings would, in any event, fail on the merits. In the light of these conclusions the orders that I will make are as follows:
1. The proceedings are dismissed.
2. The plaintiff is to pay the defendant’s costs of the proceedings including reserved costs.
3. Liberty is granted to the defendant to apply for any order relating to the security for its costs provided by or on behalf of the plaintiff.
4. Order 2 does not have effect if, within 14 days of the date of this order, either party notifies my associate by email that it wishes to be heard in relation to costs.
| I certify that the preceding three-hundred-and-forty-one [341] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: |
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