Diethelm & Ors v ACT Planning and Land Authority (Administrative Review) - [2024] ACAT 25

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DIETHELM & ORS v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2024] ACAT 25

AT 89/2023

Catchwords: ADMINISTRATIVE REVIEW – Whether the application for development approval is valid when letter of authorisation by the lessee of the land for the purposes of s 139(2)(b)(i) was executed at a time when the company was deregistered and the office of director vacated – effect of deregistration – consequences of reinstatement – ineffective letter of authorisation – failure of letter of authorisation is not determinative of the application’s validity
Legislation cited: Corporations Act 2001 (Cth) ss 128, 129, 601AB, 601AD, 601AH
Planning and Development Act 2007 s 139
Legislation Act 2001 ss 199, 255, dictionary
Electronic Transactions Act 2001 ss 8, 9

Cases cited:Allianz Australia InsuranceLtd v Viksne [2021] NSWCA 268
Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3
CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690
Danich Pty Ltd Re Cenco Holdings Pty Ltd [2005] NSWSC 293
White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441

Tribunal:Senior Member P Spender

Date of Orders: 1 March 2024
Date of Reasons for Decision: 20 March 2024

Corrected under Section 63 of the ACT Civil and Administrative Tribunal Act 2008 on 20 March 2024

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 89/2023

BETWEEN:

MARY-JULIA DIETHELM
First Applicant

FRANCES POWRIE
Second Applicant

BEN CHEUNG
Third Applicant

SANIE YMER
Fourth Applicant

WILLIAM TUCKER
Fifth Applicant

AND:

SABINE CLOSE PTY LTD ACN 608 430 726
Party Joined

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL:Senior Member P Spender

DATE:1 March 2024

CORRECTED ORDER

The Tribunal orders that:

Pursuant to the orders made by the tribunal on 17 January 2024, the preliminary question is answered in the affirmative: the application for development approval lodged on 23 May 2023 is valid.
The Party Joined is required by 8 March 2024 to make an application for interim orders pursuant to section 22P of the ACT Civil and Administrative Tribunal Act 2008 for an extension of time to decide the application.
The matter is listed for further directions at 10.00 am on Friday 22 March 2024.
………………………………..

Senior Member P Spender

REASONS FOR DECISION

In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal.

Summary of decision

The Tribunal has concluded that the application for development approval lodged on 23 May 2023 is valid. The preliminary question concerned section 139(2)(b)(i) of the Planning and Development Act 2007 (the Act). That provision states that an application for development approval must be signed by the lessee of the land to which the application relates. In this case, the lessee of the land was a company. The application for development approval attached a letter of authorisation which purported to be the company’s signature for the purposes of 139(2)(b)(i) of the Act. The letter of authorisation was executed at a time when the company was deregistered and the office of director vacated. The Tribunal has found that the letter of authorisation was ineffective to constitute a signature for the purposes of 139(2)(b)(i) of the Act. However, the Tribunal has also found that the failure of letter of authorisation is not determinative of the preliminary question of whether the application for development approval was valid. On the unusual facts of this case, the relevant parties have been able to establish compliance with section 139(2)(b)(i) of the Act by establishing that the company did in fact “sign” the DA at the relevant time. The preliminary question is therefore answered in the affirmative.

Introduction

The preliminary question

On 17 January 2024, orders were made by the tribunal listing the matter for hearing on a preliminary question. The preliminary question stated as follows:
[W]hether the application for development approval lodged on [23] May 2023 is valid, having regard to section 139(2)(b)(i) of the Planning and Development Act 2007, in circumstances where it is supported by a letter of authorisation signed by Mr Milin on 11 August 2021 in his capacity as a director for the Crown lessee at a time when the Crown lessee was a deregistered company.
At the relevant time, section 139(2)(b)(i) of the Act stated as follows:
139 Form of development applications
(1) This section applies to an application for development approval.
(2) The application must—
(a)be in writing signed by the applicant; and
(b)if the application is made by someone other than the lessee of the land to which the application relates—also be signed by—
(i)if the land to which the application relates is subject to a lease—the lessee of the land.
A hearing was held concerning the preliminary question on 27 February 2024. At the hearing, the Tribunal considered the parties’ submissions and other documents as follows:
(a)the tribunal documents filed 24 November 2023 (the Tribunal documents),
(b)the party joined’s submissions dated 19 January 2024,
(c)the statutory declaration of David Milin dated 19 January 2024,
(d)the respondent’s submissions dated 8 February 2024,
(e)the applicants’ submissions filed 16 February 2024.
The statutory declaration of David Milin was put into evidence as exhibit PJ1 in the hearing. Mr Milin was not subject to cross examination.

Background

Proceedings in the tribunal were commenced on 16 October 2023. They concerned the land situated at Section 47 Block 12 in Turner (the Land). The crown lessee of the Land is a company - Sabine Close Pty Limited (the Company). The relevant application for development approval (DA) was filed on 23 May 2023. The respondent approved the DA subject to conditions and the proceedings in ACAT are seeking review of that decision.
The DA was lodged by an architect, Mr Cetrtek (the Architect). The DA attached a letter of authorisation (Letter of Authorisation) which was signed in 2021. Mr Milin signed the Letter of Authorisation in the box labelled “first lessee’s signature” and dated it 11 August 2021. The relevant part of Letter of Authorisation made the following declarations:
·        I /we declare that I am/we are the lessee(s) of the land described above;
·        I/we have been made aware of the declaration clauses in the DA or Application for Reconsideration form; and
·        I/we declare that all the information given on this form is true and complete.[1]
[1] Tribunal documents at T191-T192
Mr Milin signed the form as the lessee, however he was signing the form on behalf of the lessee Company and therefore he should have also provided his name in the relevant part of the document that refers to the Company’s nominees. The Letter of Authorisation states that the first nominee must be authorised to sign on behalf of the Company.
More problematically, Mr Milin signed and dated the lessee's declaration on 11 August 2021 when the Company was deregistered. As will be discussed below, the effect of the deregistration was that the position of the office holders in the Company had been vacated and Mr. Milin no longer occupied the position of director of the Company.
The preliminary question concerned the validity of the DA in these circumstances.

Timeline

The following timeline has been created from the information provided in the statutory declaration of David Milin.[2]
[2] Statutory declaration of David Milin dated 19 January 2024
(a)25 September 2015 – David Milin appointed director of the Company.
(b)February 2021 – the Company was deregistered by ASIC.
(c)11 August 2021 – the Letter of Authorisation was signed by David Milin in the “lessee declaration” section of an application for development approval that was eventually lodged on 15 October 2021.
(d)15 October 2021 – the Architect lodged an application for development approval on behalf of the Company (the Old DA). It attached the Letter of Authorisation.
(e)Around November 2021 – David Milin learned that the Company had been deregistered.
(f)November 2021 – David Milin applied to ASIC for reinstatement of the Company.
(g)7 December 2021 – the Company was reinstated by ASIC.
(h)31 January 2022 – Tomi Milin ceased being a director.
(i)13 October 2022 – the Old DA was approved by the respondent with conditions.
(j)Around 11 October 2022 – the residents of Turner commenced proceedings in ACAT seeking review of the decision to approve the Old DA (First Proceedings).
(k)Around 9 February 2023 – at the hearing of the First Proceedings before Presidential Member McCarthy, the issue of the Company’s registration was raised. The issue was identified that the Old DA had been lodged when the Company was deregistered.
(l)14 February 2023 – The First Proceedings were concluded by the tribunal ordering that the Old DA be refused because it was lodged when the Company was deregistered.[3]
(m)23 May 2023 – The Architect lodged the DA and attached the Letter of Authorisation that was signed by David Milin and dated 11 August 2021.[4]

The parties’ submissions

[3] Orders handed down on 14 February 2023 that, by consent, the decision under review is set aside and the application for development approval is refused
[4] Tribunal documents at T191-T192

Stated briefly, the party joined argued that section 139 of the Act had been satisfied by the form of the DA that had been submitted by the Architect on behalf of the Company.[5] These arguments were based upon a combination of the form of the DA which contained declarations rather than requiring a signature and the relevant provisions of the Legislation Act 2001 (LA), and the Electronic Transactions Act 2001 (ETA). The party joined argued there was ostensible authority at all times for the Architect to lodge the DA on behalf of the Company. The respondent does not require signed hard copies of the DA to be lodged so the requisite authority can be taken to be present at all times. In the alternative, validation of the director's authority can be sought from the Supreme Court but this would require an application to the Supreme Court to validate the relevant actions under section 601AH of the Corporations Act2001 (Cth) (Corporations Act).[6]
[5] Party joined’s submissions dated 19 January 2024 at [2 a]
[6] Party joined’s submissions dated 19 January 2024 at [2 b]
The respondent supported the primary submissions made by the party joined and argued that the Letter of Authorisation was not determinative of the issue of whether section 139 had been complied with.
The submissions made by the party joined and the respondent are elaborated below.
The applicants argued that section 139 of the Act requires a signature and the online DA form specifies that this signature be in a letter of authorisation attached to the DA. The letter of authorisation did not meet the requirements of section 139 of the Act. Section 9 of the ETA specifies the requirements for electronic signature to be acceptable. There must be consent of the person to whom the signature is required to be given to the method used to identify the person who signs, and their intention. The DA form specifies that a signed letter of authorisation be attached. No consent to any other method is evident. Therefore section 9 of the ETA does not negate the need for a valid signed letter of authorisation.[7]

Consideration

[7] Applicants’ submissions filed 16 February 2024, page 1

At the beginning of the hearing, the Tribunal asked counsel acting for the party joined to explain the purpose of section 139(20(b)(i) of the Act. Counsel responded in words to the effect that the provision is a protective provision which is designed to ensure that the lessee consents to the application and to avoid “rogue applications”.[8] The Tribunal agrees with this interpretation and notes that the important aspect of the subsection is conveying the consent of the lessee. Therefore, when construing the requirements of the subsection, the Tribunal does not consider that other broader considerations such as the public interest or the interests of third-party objectors are relevant to its interpretation. Therefore, in construing the provision, it is necessary to consider whether the relevant communications were sufficient to amount to a communication of the lessee's consent to the application for development approval. That consent is usually conveyed by the letter of authorisation where the lessee is a company because that is the functional equivalent of a “signature” for the purposes of section 139(2) of the Act. However, the subsection uses mandatory language by stating that the application “must” be “signed by” the lessee. The Tribunal also notes that the context of section 139 involves a public process of notification of the DA, so one must be careful about interpreting the requirements of section 139 so as to minimise uncertainties arising in the DA process.
The effect of the Letter of Authorisation
[8] Recording of hearing dated 27 February 2024 at 10:30 AM
The Tribunal has concluded that the Letter of Authorisation was wholly ineffective to evidence the signature that is required under section 139 of the Act. The signature provided by Mr Milin in the Letter of Authorisation was provided at the time the Company was deregistered. The registration appears to have been initiated by ASIC pursuant to section 601AB of the Corporations Act due to what Mr Milin described as an “administrative error in not lodging the annual Company statement and paying the annual company registration fee”.[9]
[9] Statutory declaration of David Milin dated 19 January 2024 at [7]
Counsel for the respondent argued that the Letter of Authorisation was void for the following reasons:
(a)Pursuant to section 601AD of the Corporations Act, when the company is deregistered, the company ceases to exist.
(b)Section 601AH(5) will operate to reinstate the company as if it had not been deregistered; however, Mr Milin as director of Sabine Close only became the director again from the time it was reinstated.
(c)Section 601AH(5) cannot, in a retrospective way, give efficacy to active steps taken in relation to a company which, because of the company's non-existence, were, when taken, simply devoid of legal effect.[10]
[10] Respondent’s submissions dated 8 February 2024 at [31], citing CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690 at [17]
The party joined relied upon Allianz Australia InsuranceLtd v Viksne[11] (Allianz) which dealt with the contention that proceedings commenced during a period of the registration were void and could not be retrospectively validated because a non-existent company cannot have commenced proceedings. That contention was not accepted by the New South Wales Court of Appeal, based on the broad wording of section 601AH(3), which allows the court to validate anything done during the period of deregistration. Applying that reasoning here, the inability to provide the authorization during the deregistration does not void any steps relying on it afterwards as the court can validate that authority as having been given.[12]
[11] [2021] NSWCA 268 at [44]
[12] Party joined’s submissions dated 19 January 2024 at [35]
The Tribunal takes a slightly different approach to this aspect of the preliminary question and relies upon the reasoning of Campbell J in White v Baycorp Advantage Business Information Services Ltd (White v Baycorp)
If a director had purported to act on behalf of a deregistered company during the period of deregistration, mere reinstatement would not validate his action, because section 601AH(5) provides only a limited measure of retrospectivity, so that the director regains his office only from the time of reinstatement. [...].[13]
[13] [2006] NSWSC 441 at [115], cited in the respondent’s submissions dated 8 February 2024 at [33]
What are the consequences of the deregistration for the office of director? The NSW Court of Appeal in Allianz made the following comments about the role of a director during a period of deregistration:
[The] directors of the company … cease to be directors during the period of deregistration. As Campbell J noted [in White v Baycorp], the absence of directors capable of acting on behalf of the deregistered company and the loss of contractual and other property rights [is] likely to limit the respects in which the mere continuance in existence of the company could result in legal consequences being attributed to conduct of third parties directed to the company, or to conduct purportedly undertaken on its behalf, whilst deregistered.[14]
[14] Allianz at [23]
As stated above, the effect of deregistration is that the company ceases to exist.[15] When the company is reinstated, the consequences of reinstatement are set out in section 601AH(5):
If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC … reinstates the company.
[15] Corporations Act s 601AD
However, Barrett J stated in Danich Pty Ltd Re Cenco Holdings Pty Ltd[16] that section 601AH(5), “by saying that a person “becomes a director again” … does not effect retrospective continuity of the tenure of directors”[17] during the deregistration. If a director purported to act on behalf of a deregistered company during the period of its deregistration, reinstatement would not necessarily validate their action.[18]
[16] [2005] NSWSC 293
[17] [2005] NSWSC 293 at [28]
[18] White v Baycorp at [115]
For ease of reference, the Tribunal refers to this state of affairs as the office of the director being vacated during the period of the deregistration.
The Tribunal concludes that purported acts of Mr Milin when the Company was deregistered and the office of director vacated have no effect until such acts are validated by order of the Supreme Court under section 601AH(5) of the Corporations Act. The Tribunal notes the respondent’s submission that the Letter of Authorisation is void, however the Tribunal prefers to regard it as ineffective until such time as the Supreme Court exercises its power to validate the actions of the director in purporting to execute the document while the office of director is vacated during the Company's deregistration. The question of retrospective validation of the director's acts is a question of the exercise of jurisdiction by the Supreme Court, so to repeat the point, rather than characterising the transaction as void, the Tribunal prefers to describe it as ineffective.
The Tribunal therefore finds that the Letter of Authorisation was wholly ineffective to constitute a signature of the lessee for the purpose of section 139 of the Act. It is regrettable that it is necessary for the Tribunal to consider this issue in the context of the history of the development and in particular that the Old DA was refused because the Company was deregistered at the time. The provision of an old Letter of Authorisation in the new DA suggests a somewhat cavalier approach by the Architect and possibly by Mr Milin as the sole director (by that stage) of the Company.
For the sake of completeness, the Tribunal notes the arguments made by the party joined and the respondent about the Letter of Authorisation insofar as it may constitute an approved form under section 255 of the LA.[19] The Tribunal quotes the respondent’s submissions as follows:
18. The Letter of [Authorisation] was an approved form at the time (AF2017-39) pursuant to the general power to approve forms under s 425 of the … Act. If that form is taken to be approved for the purposes of satisfying s 139(2)(b)(i), then it must be used for that purpose: [the Act] s 424(2). However, no such purpose is clear from the form.
19. While s 139 [of the Act] prescribe[s] the requirements of the form of a development application, there does not appear to be an approved form expressly identified for a development application relevant to the application of LA s 255(1). Consequently, it is open to the Tribunal to find that the requirements of LA [s 255(5)] [do] not apply in respect of the DA.[20]
[19] Respondent’s submissions dated 8 February 2024 at [[17]-[19]
[20] Respondent’s submissions dated 8 February 2024 at [18]-[19]

As explained by counsel for the party joined during the hearing, although the DA contemplates lodgement of a letter of authorisation by showing a link to the letter of authorisation form on the application for development approval, the now defunct link goes to a document which is headed “minimum documentation requirements for lodgement of a development application”. The letter of authorisation is listed as one of the requirements for a development of this type.[21]
[21] Recording of hearing dated 27 February 2024 at 10:16 AM
In the circumstances, the Tribunal is not satisfied that the requirements of section 255 of the LA apply to the Letter of Authorisation. The Tribunal concludes that the failure of the party joined to “sign” or properly complete the Letter of Authorisation does not mean that the DA is invalid per se.
Was the DA valid without an effective letter of authorisation?
The Tribunal agrees with the submissions made by the party joined and the respondent that the failure of the Letter of Authorisation was not determinative of the preliminary question of whether the DA was valid.
The party joined and the respondent made the following submissions regarding what may be regarded in fact as the lessee company “signing” the DA. The Tribunal quotes at length from the submission of the party joined to explain this argument with the relevant references to the Tribunal documents.
ACTPLA does not require the Lessee to sign the DA
10. The ACT Planning and Land Authority, as the Respondent here, provides a 'Wizard System' for the lodgement of the DA. The form that is required to be completed is comprised of set fields for the entry of data that cannot be manipulated by the Applicant. It is not possible … for the Applicant or the Lessee to sign the form. The relevant parts of the form are:
a. The Applicant's details, here Steven Cetrtek, the architect acting on behalf of the Lessee.[22]
b. The Lessee details as Sabine Close Pty Ltd with David Milin stated to be the director.[23]
c. After the details of the DA, there [are] a number of stated declarations that are made by the Applicant/Lessee.[24] One of the many declarations states:
“I/we (lessee) appoint the applicant whose signature appears in the attached letter of appointment to act on my/our behalf in relation to this Development Application. This authorises the applicant to pay all application fees, bonds and securities, liaise with the Environment, Planning and Sustainable Development Directorate when required, alter, amend or provide further information as necessary and receive any communications relating to this Development Application”;[25]
d. There is a further declaration as follows:
“I/we declare that all the information given on this form and its attachments is true and complete;
If lodging on behalf of a company, organisation or Government agency: -
I/we declare I/we have the appropriate delegation or authority to sign on behalf of the company, organisation or Government agency;
I declare that I am the person shown in this eDA form as the Applicant, and by clicking the ACCEPT button below I understand that this replaces my requirement to sign a hard copy of this application.
I accept the above declarations:
Accept
Acceptance Date
[22] Tribunal documents at T77 and T176
[23] Tribunal documents at T78 and T176
[24] Tribunal documents at T187
[25] Tribunal documents at T188 (emphasis added)
01 May 2023.[26]
[26] Party joined’s submissions dated 19 January 2024 at [10] (emphasis in original)
At the relevant time, the bolded and underlined reference to the letter of appointment above had a link to the letter of authorisation. As discussed above, this part of the application failed. Therefore, the form of the application needs to be considered in the absence of the attachment constituting the letter of authorisation.
The party joined argued that these declarations made with the use of the prescribed form show that the lessee's consent was present when the DA was lodged and the information contained within the form of the DA shows that the applicant for the DA, the Architect, was acting under the authority of the lessee when lodging the DA.[27]
[27] Party joined’s submissions dated 19 January 2024 at [11]-[12]
In addition to the arguments made by the party joined about the declarations, there is further material in the DA that refers to the lessee Company and position of Mr Milin as director at the relevant date.[28] During the hearing, counsel for the respondent also pointed to the fact that the lessee Company had paid the fees for the development application.[29] At the relevant time in May 2023, the Tribunal notes that the Company had been reinstated and Mr Milin was the sole director and shareholder so it is a reasonable inference that he had actual authority to appoint the Architect as the Company’s agent for the purposes of lodging the DA and making the relevant declarations.[30] This inference is supported by Mr. Milin’s statutory declaration that was put into evidence in the proceedings.[31]
[28] See for example Tribunal documents at T78 and T176
[29] Tribunal documents at T173-T174
[30] Corporations Act ss 128, 129
[31] Statutory declaration of David Milin dated 19 January 2024, DM1 pages 2-4
However, there is a further step in the argument because section 139 (2) of the Act requires that the lessee “sign” the DA. The party joined argued that it is impossible to comply with section 139, and the requirement for the lessee to sign in the form of the DA that is required by the respondent and further argued that the obligation for the DA applicant, and the lessee to sign, seems to have been replaced by the statement in the form that a signed hard copy is not required.[32] The party joined further argued that there is clear ostensible authority for the DA applicant to lodge the DA on behalf of the lessee from the declarations that are made on the face of the DA. Further, the apparent authority and consent to the DA, as seen on the face of the DA, are sufficient to show the lessee’s consent to the DA.[33] The form is completed and the need to provide a signature is removed.[34]
[32] Party joined’s submissions dated 19 January 2024 at [20]
[33] Party joined’s submissions dated 19 January 2024 at [22]
[34] Party joined’s submissions dated 19 January 2024 at [21]
The respondent supported this argument:
24 ln circumstances where the applicant on the DA form, Mr Cetrtek, was a natural person and the Crown Lessee was a company, the reference to the DA being lodged on behalf of a company could only mean that the DA was lodged on behalf of Sabine Close, not by Mr Cetrtek as a natural person.
25 It was also clear that Mr Cetrtek was acting with the apparent authority of Sabine Close. The Authority was entitled to assume that Mr Cetrtek, who had expressly declared that he had the authority to sign the DA on behalf of Sabine Close, had such authority.[35]
[35] Respondent’s submissions dated 8 February 2024 at [24]-[25]
There is an additional element in the party joined’s argument which is provided by the ETA. Section 8 of the ETA states as follows:
Writing
(1) If, under a territory law, a person is required to give information in writing, that requirement is taken to have been met if—
(a)the person gives the information by means of an electronic communication; and
(b)at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(c)the person to whom the information is required to be given consents to the information being given by means of an electronic communication.

Section 9(1) of the ETA states:
Signatures
(1) If, under a territory law, a person’s signature is required, that requirement is taken to have been met for an electronic communication if—
(a)a method is used to identify the person and to show the person’s intention in relation to the information communicated; and
(b)the method was either—
(i)as reliable as was appropriate for the purpose for which the electronic communication was generated or communicated, in the circumstances, including any relevant agreement; or
(ii)proven in fact to have fulfilled the functions mentioned in paragraph (a), by itself or together with further evidence; and
(c)the person to whom the signature is required to be given consents to that requirement being met using the method mentioned in paragraph (a).
The party joined argued that, when considering the form of the DA, the lessee’s identity and intention in relation to the information contained in the DA is clear. The form of the DA, in the absence of the letter of authorisation, is reliable to show the consent to the DA.[36] The party joined and the respondent also pointed to the statutory declaration of Mr Milin to provide further evidence that the function of communicating the lessee's consent had been fulfilled at the time the DA was lodged. On this argument, subsection 9(1)(b)(ii) of the ETA was satisfied. The Tribunal agrees with the submissions made by the respondent and the party joined on this point[37] and respectfully disagrees with the applicants’ submissions that the provisions of the ETA do not negate the need for a valid signed letter of authorisation.
[36] Party joined’s submissions dated 19 January 2024 at [15]
[37] See, for example, party joined’s submissions dated 19 January 2024 at [19], citing French CJ in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, at [20]-[24]
The Tribunal is satisfied that section 9 of the ETA enabled the Architect's method of clicking the “accept” button as part of the electronic submission of the DA with the respondent to be taken as meeting the requirement for his signature (and that of the Company pursuant to his apparent authority to do so).[38] The information and terms of the electronic document that is constituted by the DA were sufficient to identify the relevant person, that is, the Company, as lessee and showed the person’s intention to consent to the DA under subsection 9(1)(a) ETA and fulfilled the function of evidencing the consent of the Company pursuant to subsection 9(1)(b)(ii). In making this finding, the Tribunal primarily relies upon the facts stated above about the execution of the electronic form by the Architect as agent for the Company. The respondent’s submissions pointed to Mr Milin’s evidence in his statutory declaration that he was aware of the terms of the new DA and authorised the Architect to proceed on behalf of the Company.[39] However, Mr Milin did not give oral evidence at the hearing and was not cross examined. The Tribunal cannot be certain about what supervision was exercised by Mr Milin at the time of the lodgement of the DA.
[38] Respondent’s submissions dated 8 February 2024 at [28]
[39] Respondent’s submissions dated 8 February 2024 at [26] referring to the statutory declaration of David Milin dated 19 January 2024 at [20]
The final element which needs to be fulfilled under section 9(1)(c) ETA is the person to whom the signature is required to be given consents to that requirement being made using the electronic method. This element can be readily inferred by the respondent proceeding to assess the DA. The applicants noted in their submissions that the respondent initially failed to recognise the problems with the Letter of Authorisation, and they raised it with the respondent during the public consultation process[40] but the issue was not acknowledged by the respondent in their reasons for decision[41] nor acted upon by Mr Milin.
[40] Tribunal documents at T118
[41] Applicants’ submissions filed 16 February 2024, referring to Tribunal documents T14-15
Again, for completeness, the Tribunal notes the argument made by the respondent regarding section 199 of the LA. That provision states that if a law authorises or requires a signature by a person and the person is a body, the signature of a person authorised by the body for the purpose is taken to be the signature of the body. The Dictionary of the LA defines the term “body” to include a company. The respondent argued that the Architect’s express declaration that he was authorised by the Company to sign the DA satisfied the provision for signing the documents in section 199(3) of the LA.[42] It is not necessary for the Tribunal to decide this point due to the reasoning that is set out above however I have some hesitation about the width of this argument when the Architect and the director attached a form of authorisation that was almost two years out of date and had been involved in the refusal of the DA in the previous proceedings.

Conclusion

[42] Respondent’s submissions dated 8 February 2024 at [27], [29]

As stated above, on the unusual facts of this case, the relevant parties have been able to establish compliance with section 139(2)(b)(i) of the Act by establishing that the Company did in fact “sign” the DA at the relevant time. The preliminary question is therefore answered in the affirmative.
………………………………..

Senior Member P Spender

Date of hearing:	27 February 2024
Applicants:	In-person
Counsel for the Respondent:	Mr J A Larkings
Solicitor for the Respondent:	Mr S Tahir, ACT Government Solicitor
Counsel for the Party Joined Solicitor for the Party Joined	Mr D Robens Ms P Hall, MV Law