Duffy v ACT Planning and Land Authority; Davidson v ACT Planning and Land Authority (Administrative Review)
[2021] ACAT 104
•27 October 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DUFFY v ACT PLANNING AND LAND AUTHORITY; DAVIDSON v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2021] ACAT 104
AT 71/2018
AT 74/2018
Catchwords: ADMINISTRATIVE REVIEW – application to amend or set aside tribunal orders made by consent confirming ACTPLA’s decision to give development approval to a proposal subject to additional conditions – added condition requiring finished floor levels to be lowered by 250mm inconsistent with relevant codes – development approval prohibited in those circumstances – making of consent orders involved failure by the tribunal to exercise jurisdiction, rather than an error within jurisdiction – no valid development approval in force – whether there are “extraordinary circumstances that make it appropriate to amend or set aside” the orders made by consent – meaning of ‘extraordinary circumstances’ – operation of rule 70(6) of the ACAT Rules considered – consent orders set aside and substitute order made giving retrospective development approval – consideration of requirements for tribunal to make orders by consent deciding application for a merit review of a decision to approve a development in the merit track
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 24, 55, 56, 56, 68, 86
Human Rights Act 2004
Legal Profession Act 2006 s 433
Legislation Act 2001 s 45
Planning and Development Act 2007 ss 119, 197, 198
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 70
Inner North Precinct Code
Multi Unit Housing Development Code
Parking and Vehicular Access General Code
Planning and Development Regulation 2008 ss 20, 35, schedule 1A, s 1A.11
Cases cited:Allen v ACT Planning and Land Authority & Ors [2021] ACAT 88
Blackshaw & Anor v Campbell [2019] ACAT 41
Commissioner for Social Housing v CC [2017] ACAT 17
Council of the Law Society of the Australian Capital Territory v LP 201920 (No.2) [2021] ACAT 51
GPT Re Limited v Belmorgan Property Development Pty Ltd [2008] NSWCA 256
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23
Legal Practitioner v Council of the Law Society of the ACT (No.2) [2014] ACTSC 352
Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11
NG Woden Pty Ltd v Commissioner for ACT Revenue [2020] ACAT 77
Plaintiff M174/2016 v The Minister for Immigration and Border Protection [2018] HCA 16
Reynolds v Chessell & Anor [2019] ACAT 119
Scott v Wollongong City Council (1992) 75 LGRA 112
The Owners – Units Plan 2881 v Stojanovic [2020] ACAT 113
Tribunal: Senior Member M Orlov
Date of Orders: 27 October 2021
Date of Reasons for Decision: 27 October 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 71/2018
BETWEEN:
GEOFFREY DAVIDSON
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL:Senior Member M Orlov
DATE:27 October 2021
ORDER
The Tribunal orders that:
The orders made by consent on 26 October 2018 are set aside.
The application for review of a decision filed on 20 July 2018 (ACAT File Number AT 71/2018) is dismissed.
………………………………..
Senior Member M Orlov
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 74/2018
BETWEEN:
GREGORY DUFFY
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
AND:
TIHI DEVELOPMENTS PTY LTD
Party Joined
TRIBUNAL:Senior Member M Orlov
DATE:27 October 2021
ORDER
The Tribunal orders that:
The orders made by consent on 26 October 2018 are set aside.
The decision under review with respect to Development Application number 201733103 is confirmed, subject to the following amendments to the Conditions of Approval, at Part 1 of the Notice of Decision:
a. After the ‘Note’ set out at A3(b), insert the following conditions:
(c)amended plans demonstrating:
(i)Trees to be retained in the south-western corner (as shown at Site Plan A007).
(iii)Compliance with Rule 5 of the Inner North Precinct Code.
(vii)Compliance with Rule 13 of the Inner North Precinct Code.
(x)TCCS endorsement for the revised verge crossing
Note: existing verge crossing to be retained and reconstructed in accordance with TCCS design standard and requirements and AS 2890.1. TCCS approval to be obtained before commencement of site construction work.
(xi)An additional basement visitor car park.
(xii)3.3m long by 1.8m high courtyard wall to front zone along the southern boundary (as shown by the colour orange in the legend in Site Plan A007).
(d)amened plans substantially the same as those in Attachment B to the affidavit of Hayden Pini affirmed on 26 October 2021.
b. Insert the following into A5 after ‘The development must comply with all relevant conditions/advice imposed by each of the relevant entities as stated in each of their advice (refer to part 3 and Attachments)’:
, including Attachment A to the affidavit of Hayden Pini affirmed on 26 October 2021.
Order 2 takes effect on 26 October 2018.
The Tribunal notes:
Pursuant to Condition A3 of the Notice of Decision, the Respondent undertakes to extend the period for the applicant for development approval to lodge the plans in A3(d) to 7 days from the date of this order.
The Respondent is satisfied that the Third Party’s development proposal, in the form amended by Order 1, is consistent with all relevant codes and that development approval is not inconsistent with section 119 of the Planning and Development Act 2007 as deposed to in the affidavit of Hayden Pini affirmed on 26 October 2021.
………………………………..
Senior Member M Orlov
REASONS FOR DECISION
This application raises an important issue of principle. The issue is how and in what circumstances may the tribunal set aside or amend a consent order made under section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) to confirm a decision by the planning and land authority (the authority) to approve a development application, subject to additional or different conditions agreed by the parties to an application for review of the authority’s decision.
On 30 April 2018, Architects Ring & Associates (the architect) lodged an application for development approval in the merit track for the erection of a three storey building containing seven dwellings with basement car parking, associated landscaping, servicing, and other site works (the DA). The owner and developer of the land is, and was at all material times, Tihi Developments Pty Ltd (the developer). A delegate of the authority approved the DA subject to conditions on 17 October 2018 (the approval decision).
On 20 July 2018, Mr Geoffrey Davidson filed an application in the tribunal for a merits review of the approval decision. This was given file number AT 71/2018. On 23 July 2018, the tribunal made directions in AT 71/2018.
On 26 July 2018, Mr Gregory Duffy filed a similar application in the tribunal. This was given file number AT 74/2018. On 15 August 2018, the developer filed an application for an order to be joined as a party to AT 74/2018. On 24 August 2018, the tribunal made orders to that effect.
On 27 August 2018, the tribunal ordered that AT 71/2018 and AT 74/2018 be heard together and that directions made in the former should apply equally to the latter. On the same date, the tribunal made directions in AT 71/2018 referring the application for review to mediation and directing the applicant, the respondent (i.e. the authority) and the party joined (i.e. the developer) to attend mediation and otherwise to prepare the matter for hearing on 30 October 2018.
The parties entered into a written consent agreement on 26 October 2018. The parties to the agreement were named and identified respectively as the applicant in AT 71/2018 (Mr Davidson), the applicant in AT 74/2018 (Mr Duffy), the respondent (the authority) and the “Party Joined in AT 74/2016” (the developer). The consent agreement was signed by Mr Davidson and representatives of the developer and the authority on 25 October 2018, and by Mr Duffy on 26 October 2018. The agreement stated in part:
Having reached agreement, the parties request the Tribunal make an order pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 in the following terms:
1. The decision under review with respect to Development Application number 201733103 is confirmed, subject to the following insertions to the Notice of Decision, after the note after A3(b):
“(c) amended plans demonstrating:
(i)…
(ii)Finished floor level is to be reduced by 250 millimetres (as shown at Attachment A, Site Plan A007).
…
(vi)1.8m high masonry and glass combination wall to units 3, 4 and 5 (as shown at Attachment A, by the colour blue in the legend in Site Plan A007).
…
(viii)Paved surfaces to units 6 & 7 to be consistent with plan at Attachment A, Site Plan A007.
(ix)Driveway width reduction and setback 1.5m from southern boundary. Planting is to be included between driveway and boundary. To comply with C75 of the Multi Unit Housing Development Code, plans to be submitted showing further control measures such as traffic lights, mirrors or similar.
On 26 October 2018 the tribunal made orders by consent separately in AT 71/2018 and AT 74/2018 in accordance with the terms of the consent agreement. The developer was listed as a party joined only in the orders made in AT 74/2018.
Construction commenced and by July 2021 was nearing completion.
On 16 July 2021, the developer filed an application for interim or other orders in AT 71/2018 and AT 74/of 2018 seeking an order pursuant to rule 70 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (ACAT Rules) that orders 1(c)(ii), 1(c)(vi), 1(c)(viii) and 1(c)(ix) of the consent orders made on 26 October 2018 in each matter (incorrectly identified as having been made on 25 October 2018) be vacated. The grounds relied upon appeared as follows:
1. Each of the above proceedings was brought by third-party objectors who sought to challenge the development approval given to the Party Joined. On 25 October 2018, the parties in each of the above matters sought the entry of consent orders to resolve both proceedings.
2. During the construction of the development which was the subject of the approval, it has come to pass that some of the conditions which were agreed to on 25 October 2018 could not be implemented as those conditions were inconsistent with design amendments required by relevant standards. Put another way, compliance with the consent orders would have put the development in conflict with mandatory construction standards, including fire regulations.
3. The vacation of the orders as sought above will not prejudice [sic] to any other party as Mr Davidson is not a neighbour, and the amendments will not adversely impact Mr Duffy’s privacy or solar access. The Party Joined also consulted with Mr Duffy regarding certain amendments to the design of the development, and Mr Duffy indicated his consent to those amendments to the Party Joined.
4. The ground of the application are expanded upon in the witness statements filed with this Application.
Mr Davidson, Mr Duffy, and the authority initially opposed any variation of the consent orders.
On 8 September 2021, the authority filed written submissions, which in substance made the following points:
(a)The Tribunal’s power to make orders by consent lies in section 55 of the ACAT Act, which allows the Tribunal to decide an application in accordance with agreed terms without holding a hearing. However, Mr Duffy and Mr Davidson did not consent to the proposed orders.
(b)The developer was not a party to AT 71/2021 and therefore had no standing to seek the proposed orders in that matter. However, the tribunal could consider amending or setting aside the consent orders in AT 71/2018 on its own initiative if it was satisfied that it should set aside the consent orders in AT 74/2018.
(c)The developer’s application was based on rule 70 of the ACAT Rules. However, the tribunal’s source of power lay in section 56(c) of the ACAT Act. Although rule 70 ‘further informs’ the circumstances in which the power under section 56(c) may be exercised, it does not enlarge the scope of the tribunal’s power to set aside or vary a previous order of the tribunal.
(d)Only section 56(c)(iii) was potentially relevant, which required the tribunal to be satisfied that “extraordinary circumstances make it appropriate to amend or set aside the order”.
(e)The submissions referred to various authorities and gave examples where the tribunal has set aside orders under section 56(c). The submissions also pointed to various considerations said to be relevant but gave no indication of the authority’s position in relation to how it considered the tribunal should decide the question whether there were ‘extraordinary circumstances’ in this case.
(f)The authority stated that “if the Tribunal has power” to set aside or vary the consent orders, the authority considered that the varied conditions “could be consistent” with the Territory Plan and the Planning and Development Act 2007 (PD Act), provided compliance with certain rules or criteria in the Multi Unit Housing Development Code (MUHDC) could be demonstrated.
(g)The authority accepted that compliance with condition 1(c)(ii) may result in non-compliance with relevant Australian Standards and other codes. The condition could be removed if compliance with R60/C60 of the MUHDC is achieved. The authority referred to the witness statement of Mr Hayden Pini, a Development Assessment Officer with the Environment, Planning and Sustainable Development Directorate (EPSDD), who explained that reducing the finished floor levels (FFL) of the building meant the basement would not meet clearance requirements in Section 5.3 of AS 2890.1 – Australian Standard for Parking Facilities, Part 1: Off-street Car Parking (AS 2890.1) and would make the basement ramp exceed the maximum gradient permissible under AS 2890.1. Although the steepness of the ramp could be addressed by increasing its length, this would extend the basement level further into the rear zone making the development non-compliant with R13 of the Inner North Precinct Code (INPC), which is a mandatory rule. Also R73 of the MUHDC requires an internal driveway to comply with AS 2890.1 and section 2.3.1 of the Parking and Vehicular Access General Code (PVAGC) requires the layout of car parks to meet the requirements of AS 2890.1. Mr Pini concluded that compliance with condition 1(c)(ii) may result in non-compliance with the INPC, MUHDC and PVAGC of the Territory Plan. He considered the condition could be removed if the developer demonstrated that the development maintains reasonable levels of privacy to the principal private open space of each dwelling on the same block and on adjacent blocks as required by R60/C60 of the MUHDC.[1]
(h)Removal of condition 1(c)(vi) would create privacy impacts and non-compliance with the MUHDC. The condition could be removed if compliance with C26 and R60/C60 of the MUHDC is achieved.
(i)It was unclear whether condition 1(c)(viii) could not be met. The condition could be removed if the development meets the exemption under part 1.48 of schedule 1 to the Planning and Development Regulation 2008.
(j)It was unclear whether condition 1(c)(ix) and the requirement of the Fire Engineering Report could not be met. The condition could be removed if compliance with R73 is achieved.
(k)The developer had applied to amend the development approval under section 197 of the PD Act including amendments that do not comply with the consent orders. However, section 198(5)(c)(i) of the PD Act required the authority to refuse to amend the application if satisfied that the changed development proposal would be in breach of a condition of approval “imposed (rather than confirmed or varied) by a court or tribunal”. If the authority refused to amend the DA, the developer would have review rights to the tribunal pursuant to item 14 of schedule 1 of the PD Act. The authority submitted this may provide an alternative path for the developer’s application to be determined.
[1] Witness statement of Mr Hayden Pini dated 8 September 2021
On 14 September 2021, the solicitors for the developer wrote to the tribunal advising that the matter had settled in principle with terms of settlement being finalised.
The application came before me for hearing on 15 September 2021. After hearing from the parties I directed that any signed consent orders should be filed and served by 4:00pm on 23 September 2021 and adjourned the application part heard to 24 September 2021.
On 23 September 2021, the solicitors for the developer wrote to the tribunal advising that Mr Duffy had signed a consent agreement to set aside only certain orders, Mr Davidson had signed a consent agreement to set aside all orders and the authority was not prepared to sign any consent agreement unless there was a basis for the tribunal to be satisfied that it can exercise its power to set aside or amend the earlier consent orders.
The consent agreement signed by Mr Davidson is in the following terms:
A. Having reached agreement, the parties request the Tribunal make an order pursuant to section 56 of the ACT Civil and Administrative Tribunal Act 2008 in the following terms:
1.The Consent Orders dated 26 October 2018 in proceedings AT 74/2018 and AT 71/2018 be set aside.
2.The Applications in proceedings AT 74/2018 and AT 71/2018 are withdrawn and dismissed.
3.The Application for Interim or Other Orders dated 16 July 2021 is withdrawn and dismissed.
4.The hearing dates listed on 15 September 2021 is vacated.
5.Any other orders, or notations, that the Tribunal may make.
Mr Davidson signed the agreement on 15 September 2021. Below his signature he added the words “NO AMENDMENTS”.
Also on 15 September 2021, Mr Davidson executed a deed of settlement and release by which he:
(a)unequivocally withdrew his application for review of the decision in AT 71/2018;
(b)agreed to vacate the consent orders made on 26 October 2018 and to execute and consent to the filing of the amended consent orders attached to the deed (which were in the form reproduced earlier); and
(c)undertook not to lodge any further objections or complaints in relation to DA 201733103.
The consent agreement signed by Mr Duffy is dated 23 September 2021 and provides as follows:
A. Having reached agreement, the parties request the Tribunal make an order pursuant to rule 70 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 in the following terms:
1.Orders 1(c)(ii), (iv), (v), (vi), (viii) and (ix) of the Consent Orders dated 26 October 2018 in proceedings AT 74/2018 and AT 71/2018 be set aside.
2.Development Approval number 201733103 be amended such that the development be built in accordance with the amended plans provided herewith and marked “A”, noting that the development has already been constructed in accordance with these plans save for:
(a)The installation of capping along the fence between units 3, 4, and 5 and the residential block to the south; and
(b)The installation of obscure glass balustrades on the third floor balconies on the southern and western sides of the development.
3.The Application for Interim or Other Orders dated 16 July 2021 is allowed.
4.Any other orders, or notations, that the Tribunal may make.
The amended plans annexed and marked “A” comprise 18 pages. My impression is that the extent of the as-built changes shown on the plans may be greater than those necessary only to give effect to the removal of conditions 1(c)(ii), (iv), (v), (vi), (viii) and (ix) of the consent orders, but I may be wrong about that.
The hearing resumed before me on 24 September 2021. The authority was not able at that time to give the Tribunal an unequivocal assurance whether a development proposal in accordance with the amended plans would result in a development that complied with all relevant codes. The authority’s position in relation to giving or withholding its consent in relation to any proposed variations to the consent orders made on 26 October 2018 to give effect to the separate consent agreements signed by Mr Davidson and Mr Duffy also remained equivocal.
The developer is unable to obtain a certificate of occupancy and to complete the sale of the units while this issue remains unresolved. To bring the matter to a close I directed the authority to inform the parties in writing by 5pm on 27 September 2021 whether:
(a)the authority agrees that the orders made by consent dated 26 October 2018, amended in the manner proposed by paragraphs 1 and 2 of draft consent orders in AT 74/2018 dated 23 September 2021, will result in a development that complies with all relevant codes; and
(b)the authority consents to the Tribunal making such an order subject to the Tribunal being satisfied that it has power to do so.
I also directed the parties to file and serve outlines of submissions setting out their position whether the Tribunal has, or does not have, power to make the order and, in either case, the basis of that party’s position in that regard. I adjourned the matter part heard to 5 October 2021.
The authority filed its outline of submissions on 27 September 2021 under cover of a letter addressed to the parties outlining its position on the issue of consent.[2]
[2] Letter from the ACTGS to the parties dated 27 September 2021, serving the respondent’s outline of submissions dated 27 September 2021
The developer filed its outline of submissions on 28 September 2021. Mr Davidson and Mr Duffy did not file any submissions.
The authority’s submissions
The authority advised that, having reviewed the draft plans, it is satisfied that the development “would still be able to comply” with relevant codes in the Territory Plan if the conditions of approval are removed and accordingly does not oppose the outcome that is the subject of the proposed consent agreements.
The authority submitted that section 56(c)(iii) was the only relevant source of power for the Tribunal to vary or set aside the consent orders. The authority advised that it “will only sign a consent agreement in these matters if it is satisfied there is a basis for the Tribunal to be satisfied pursuant to s 56(c)(iii) of the ACAT Act”[3] that there are extraordinary circumstances that make it appropriate for the Tribunal to amend or set aside the order.
[3] Letter from ACTGS to the parties dated 27 September 2021
The authority stated that consent was not a pre-requisite for an order under section 56(c)(iii) and it was open to the Tribunal to give effect to the proposals if it disagreed with the authority’s position.
The authority referred to earlier communications with the developer in which the developer advised that consent by the parties, after approximately four months of negotiations, to agree to amend consent orders made in 2018 is an extraordinary circumstance which would satisfy section 56. The authority disagreed and summarised its position as follows:
We do not consider that any provisions of the ACAT Act that relate to parties providing consent or the Tribunal giving consideration to such consent would overcome the need for the Tribunal to be satisfied pursuant to s 56(c)(iii) of the ACAT Act. Accordingly, we do not consent to the Tribunal making the orders proposed. For the Authority (as a public sector agency and a model litigant) to do otherwise may be seen to be ignoring what it considers to be the correct interpretation and application of the ACAT Act and inviting the Tribunal to fall into error, and thus we do not consider it appropriate to do so.[4]
[4] Letter from the ACTGS to the parties dated 27 September 2021
The authority accepted that a condition of approval that could not lawfully be complied with may amount to an extraordinary circumstance that would make it appropriate for an order imposing that condition to be amended or set aside. The authority referred to its earlier acceptance, based on the evidence of Mr Pini, that compliance with condition A3(c)(ii) “imposed under the Tribunal Orders” may result in the development not being code compliant. However, the authority asserted its position had now changed in that:
…compliance with that condition would be exempt under s 1A.11 of schedule 1A to the Planning and Development Regulation 2008, because the variation is less than the 340mm tolerance permitted. Therefore, the imposition of condition A3(c)(ii), or any of the other conditions proposed to be set aside, does not appear to prevent compliance with the Territory Plan.[5]
[5] Respondent’s outline of submissions dated 27 September 2021 at [12]
Schedule 1A of the Planning and Development Regulation 2008 deals with permitted variations to approved and exempt developments. Section 1A.11 applies to the vertical siting on a block of a building or structure that does not comply with the applicable height criteria. The section states in part:
(3) The building or structure must be vertically sited so that–
(a)for any point of the building or structure that the applicable height criteria allows or requires to be sited at a particular height—
(i)the point is sited wholly within the lease to which the point relates and is not more than 340mm above or below where the applicable height criteria allow or require the point to be sited; but
(ii)if the point is the sill of an exterior window–the sill is not more than 50mm closer to the finished floor level immediately adjacent to the window’s sill; and
Example–subpar (i)
A multistorey block of apartments is divided into separate units under the Unit Titles Act 2001. Each apartment must be within the spatial lease for the unit.
(b)compared to the approved development or exempt development, the building or structure does not do any of the following:
(i)…
(ii)reduce the accessibility of the building or structure for people with disabilities;
(iii)change the number of stories [sic] in the building or structure.
Note 1The development, as changed in accordance with this section, must also comply with the general exemption criteria, see s 20 (2) and s 35.
Note 2A change to the height of the finished floor level of the level immediately above a basement may mean that the space is counted as a storey and may also affect the calculation of gross floor area (see territory plan (13 Definitions), defs basement and storey).
(4) If the planning and land authority makes an exemption declaration that extends a permitted height criterion of a dwelling, the distance of 340mm mentioned in subsection (3) (a) (i) is reduced—
(a)if the criteria is extended by not more than 290mm—by the extended distance stated in the exemption declaration for the criterion; or
(b)if the criterion is extended by more than 290mm—by 290mm.
(5) In this section:
applicable height criteria, in relation to a point of a building or structure, means the criteria about the height of the point under—
(a)if the building or structure would be covered by a development approval other than for the height of the point—the approval; or…
exemption declaration—see schedule 1, section 1.100A(1)(b).
The authority’s submission that compliance with consent condition A3(c)(ii) “would be exempt under s 1A.11 of schedule 1A” does not rise above the level of a bare assertion. The authority provided no evidence explaining or justifying its belated change of position. As the effect of the authority’s change of position implicitly requires the Tribunal to not accept the evidence of Mr Pini, on whose evidence the authority relied previously. As a minimum I would expect that Mr Pini would have been asked to provide a sworn statement explaining to the Tribunal how section 1A.11 applies in the circumstances. Relevant to that issue is the requirement that a development changed in accordance with section 1A.11 must also comply with the general exemption criteria in sections 20(2) and 35, neither of which is the subject of evidence or is considered by the authority’s submissions. I would also expect Mr Pini to have been asked to explain how compliance with R60/C60 of the MUHDC is achieved in circumstances where the as built FFLs are higher than provided for in the development approval, thereby increasing the risk of a loss of privacy to other dwellings, an issue he raised specifically in paragraph 23 of his witness statement.
The authority’s unexplained change of position creates a situation where the Tribunal cannot be satisfied that, as built, the development complies with section A1.11 whilst also remaining compliant with R60/C60 of the MUHDC. This is, to say the least, highly unsatisfactory and falls below the standard of assistance the Tribunal expects from a public sector agency and model litigant.
In support of its submissions the authority referred to Murrell CJ’s observations about the principle of ‘finality’ in the context of tribunal proceedings in Legal Practitioner v Council of the Law Society of the ACT (No.2) [2014] ACTSC 352, where the Chief Justice said at [138]–[148]:
138. The procedures of the tribunal are governed by goals of simplicity, speed and procedural fairness…[referring to sections 6, 7 and the Tribunal’s power to determine its own procedures under section 23].
139. On the other hand, the tribunal is designed to function very like an inferior court, and a similar level of protection is provided by way of appeal processes. Under s 61, an order of the tribunal is “made” when it is pronounced or “entered”, and it “takes effect” on the day that it is made. In contrast to the scenario that was considered in Chandler (where the only appeal that was available was not a point of law), under s 79(3) of the ACAT Act, a party to an original application may appeal the decision on a question of fact or law. Generally, that will result in the Appeal President constituting an appeal tribunal (differently constituted) to review the decision on the original application: s 81. The appeal tribunal may, as the tribunal considers appropriate, deal with the appeal either as a new application or as a review of all or part of the original decision. By consent, or if the tribunal considers it to be appropriate, an appeal may be removed to the Supreme Court: s 83. If a question of law arises on an application or an appeal raises an issue of public importance, the tribunal may refer the question to the Supreme Court: s 84. There is a right to seek leave to appeal to the Supreme Court on a question of fact or law from a decision of an appeal tribunal: s 86.
140. The court-like appeal and review structure applying to the tribunal suggests that, like a court, the principle of finality may have some application to the orders made by the tribunal. As noted in Burrell, that principle serves to protect parties from attempts to re-agitate what has already been decided and provides an incentive to all participants in the adversarial process to “get it right the first time”. Where adequate appeal and review processes apply, there is limited opportunity for conflict between the principle of finality in the entitlement to procedural fairness.
141. The combination of finality and adequate appeal and review processes supports the two key objects and principles behind the ACAT Act: first, ensuring the quick and simple resolution of matters and, second, ensuring fairness.
142. Importantly, s 56 of the ACAT Act refers to the tribunal having the power to set aside an order in only three circumstances: the order was made ex parte, a limited “slip rule” applies, or “extraordinary circumstances make it appropriate to amend or set aside the order”. In the context that a comprehensive appeal and review process is available, s 56 should be read as providing the only circumstances in which an order can be set aside.
143. It was under s 56(c)(iii) that the tribunal set aside the penalty order in this case, thereby reopening the proceedings.
144. In its decision of a [sic] July 2013, the two member tribunal did not specifically address the s 56(c)(iii) question of whether there were “extraordinary circumstances” that “(made) it appropriate” to set aside the penalty order made on 24 January 2013. Rather, it was guided by general considerations of “fairness”. The tribunal’s reasons for setting aside the orders and reopening the proceedings are summarised above. Essentially, the tribunal decided that it was more efficient to reopen the proceedings for the purpose of affording procedural fairness rather than await the outcome of the tortuous appeal procedure that had been instituted. One further matter was raised by the tribunal, i.e. that the original costs order “may be said to indicate that the matter is not finalised”. The tribunal did not elaborate upon this possibility, and it was not the subject of argument on appeal.
145. It is unnecessary to consider the scope of “extraordinary circumstances”. When an error on the part of any original tribunal is identified to that tribunal, it may accept that it has erred. It would often be more efficient for the original tribunal to reopen the case and re-decide the matter. The frequency with which such a scenario may occur suggests that the circumstances in the present case were not “extraordinary”.
146. The nature of the review and appeal processes in the ACAT Act also informs a consideration of whether the circumstances under consideration constitute “extraordinary circumstances” that make it “appropriate” to set aside an order.
147. Not only were the circumstances in the present case far from “extraordinary”, they were not circumstances which indicated that it was “appropriate” to reopen the proceedings. If, in such circumstances, original tribunals reopened their proceedings as a matter of course, then appeal and review processes would be thrown into chaos.
148. In this case, the undoubted greater efficiency associated with the original tribunal reopening the proceedings to correct acknowledged error did not constitute “extraordinary circumstances” that made it “appropriate” to do so.
I note, however, that the decision was reversed on appeal in Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 where the majority (Burns and Rangiah JJ) set out the passages from her Honour’s judgment reproduced above and then said at [79]–[80]:
79. We would respectfully agree with the observations of the primary judge that the considerations of efficiency referred to by the ACAT do not constitute “extraordinary circumstances” that made it appropriate for the ACAT to set aside its original penalty orders. In our opinion, however, that is not the end of the matter. In our opinion, the ACAT was entitled to revisit the question of penalty as it did, but for different reasons than those which it articulated. …The ACAT was obliged to determine the issues which were before it by virtue of the application lodged by the Society and in exercising that jurisdiction, it was required to observe the rules of natural justice and fairness, including allowing the practitioner an opportunity to present evidence and argument on the question of penalty, just as the IRT was obliged to give Mr Bhardwaj an opportunity to present evidence and argument. It is difficult to imagine a more profound breach of procedural fairness than occurred in this case, where the ACAT purported to decide to recommend that the practitioner’s name be removed from the roll without giving him the opportunity to present evidence or argument concerning penalty. In our opinion, in proceeding in the way in which it did, the ACAT failed to perform its statutory function, with the consequence that, subject to the provisions of the ACAT Act, the original decision on penalty handed down on 24 January 2013 was a nullity.
80. There is nothing in the ACAT Act in our opinion, to suggest that it is the intention of the legislature that such a decision by the ACAT is to be given legal effect unless and until it is set aside. The discretion vested in the ACAT by s 56(c)(iii) of the ACAT Act argues to the contrary, and suggests a legislative intention that the ACAT be entitled to correct an error amounting to a failure to exercise jurisdiction.
Earlier at [67]–[73], Burns and Rangiah JJ referred to Minister for Immigration and Cultural Affairs v Bhardwaj [2002] HCA 11 and said:
67. It is useful at this point to consider the decision in Bhardwaj. The respondent Mr Bhardwaj applied to the Immigration Review Tribunal (the IRT) for review of a decision by a delegate of the Minister to cancel his student visa. The IRT proposed dealing with the matter on 15 September 1998 and advise the respondent accordingly. On 14 September 1998, the IRT received a facsimile letter from the respondent’s agent stating that the respondent was ill and unable to attend the next day, and requesting an adjournment. By an administrative oversight that letter did not come to the attention of the member of the IRT to whom the matter had been assigned. The IRT dealt with the matter adversely to Mr Bhardwaj, and notified his agent of the decision. At this point the IRT’s attention was drawn to the letter of 14 September. A new hearing date was arranged and, after hearing from the respondent, the order cancelling his visa was revoked by a further order made in October 1998. The Minister appealed to a single judge of the Federal Court, and subsequently to the Full Court, on the ground that the IRT had been functus officio after deciding the matter adversely to Mr Bhardwaj. The respondent Minister was unsuccessful in these appeals, and appealed further to the High Court.
68. The Migration Act 1958 (Cth) (the Migration Act) provided the statutory scheme under which the IRT was required to operate. Relevantly, s 353(1) of the Migration Act required the IRT to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. In concluding a review the IRT was obliged to give the applicant an opportunity to appear before it to give evidence and present arguments: s 360(1).
69. In his reasons for dismissing the appeal, Gleeson CJ, citing Ridge v Baldwin [1963] UKHL 2: [1964] AC 40, observed that there is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. This general proposition, however, must yield to the legislation under which the decision-maker is acting. Gleeson CJ then referred to the decision of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848, where Sopinka J, speaking for the majority of the Court, said that, as a general rule, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction or because there has been a change in circumstances. The Court, however, held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and “there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation”.
70. Whilst finality is a powerful consideration, his Honour said, the question is whether the statute under consideration manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. In considering that question, an examination of the statutory scheme, including the conferring and limitation of rights of appeal, may evince an intention inconsistent with the capacity of the tribunal to reopen proceedings to correct an error.
71. Gleeson CJ found that the circumstances in Bhardwaj went beyond a denial of procedural fairness, and amounted to a failure to perform its statutory function, because what it had done did not amount to a review under the Migration Act.
72. In a joint judgement, Gaudron and Gummow JJ also determined that the original decision by the IRT was not a “decision on review” for the purposes of the Migration Act as Mr Bhardwaj was not given a reasonable opportunity to present evidence and argument. To say that the original decision of the IRT was not a “decision on review”, they said, “is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness”.
73. Later, at [51], they said: “There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”, citing Ex parte Hebburn Ltd: Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420. at [53] they continued;
As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.
Penfold J dissented in the result. Her Honour disagreed that section 56(c)(iii) extended to permit a decision made in breach of the rules of procedural fairness to be set aside by the body that made the decision, so that a new hearing could be held and a new substantive decision could be made. However, her Honour’s comments on the tribunal’s jurisdiction under section 56, insofar as they are not inconsistent with the views of the majority, remain important:
24. I do not have any doubt that s 56 is in general terms a procedural provision, and one that is not intended to have any particularly controversial or substantive effect.
25. Sections 56(a) and (b), providing respectively for hearing related matters together and for making consent orders, have only procedural significance.
26. Section 56(d) permits ACAT to take “any other action in relation to an application” that is appropriate and consistent with the ACAT Act or an authorising law. This provision may go beyond the purely procedural, but only for actions that can be identified as consistent with (not just not inconsistent with) other specified provisions.
27. Sections 56(c)(i) and (ii) have a very limited scope.
28. Section 56(c)(i) is a provision of a kind common in legislation dealing with the procedures of courts and tribunals, permitting matters to be dismissed if parties do not attend hearings and permitting dismissed matters to be reinstated if the tribunal is satisfied that the non-attendance was explicable…
29. Section 56(c)(ii) provides a very narrow power to amend orders containing mistakes in the names or addresses of parties.
30. Section 56(c)(iii) gives an unqualified power to amend or set aside an order, but only in “extraordinary circumstances”. However, that provision must be read in the context of the rest of s 56, as well as the legislation more broadly.
The authority also referred to the tribunal’s decision in Blackshaw & Anor v Campbell [2019] ACAT 41, which involved an application for leave to reopen a proceeding on the basis that ‘new information’ had become available. The original application involved a claim in common law nuisance seeking an order for removal of nine cypress pines planted by the respondent close to the boundary with applicant’s property. Orders requiring removal of the trees were made on 16 September 2016. The respondent appealed the decision and lost. She then sought leave to appeal from the appeal tribunal’s decision to the Supreme Court and an extension of time within which to seek leave to appeal. Both applications were dismissed by Mossop J. The respondent then appealed to the Court of Appeal, which dismissed the appeal on 14 February 2019. The 28-day period for the respondent to seek leave to appeal to the High Court expired on 13 March 2019. On that day the respondent filed an application in the tribunal for leave to reopen the proceedings. Presidential Member McCarthy referred to the decision of Murrell CJ in Legal Practitioner v Council of the Law Society of the ACT (No.2) [2014] ACTSC 352, which he said was binding on the tribunal, and observed at [25]-[27]:
25. Referring to the facts in Legal Practitioner, the Supreme Court acknowledged “the undoubted greater efficiency associated with the original tribunal reopening the proceedings to correct acknowledged error”, but still found that the original tribunal did not have power to do so because “the frequency with which such a scenario may occur suggests that the circumstances in the present case were not ‘extraordinary’.”
26. It can be seen from Legal Practitioner that an original tribunal’s power to set aside an order because of “extraordinary circumstances” – and of a kind that make it “appropriate” to do so – imposes a test that is different, and in my view more stringent, than applies in courts. It is not enough to point to a misapprehension of the facts or the law, irrespective of to whom the misapprehension should be attributed or whether it is agreed. The legislative pathway to correct error or bring forward new information is to apply to the Appeal Tribunal. I refer in particular to the Appeal Tribunal’s power to hear an application as a “new application” under section 82(a) of the ACAT Act, meaning the Appeal Tribunal can ‘start afresh’ if it considers it appropriate to do so.
27. It follows that I do not have jurisdiction under section 56(c)(iii) of the ACAT Act to reopen the original proceeding for the purpose of setting aside the orders that were made on 16 September 2016. For new information to become available is not an “extraordinary circumstance”, nor does it make it “appropriate” to reopen a proceeding. Following Legal Practitioner, it is an issue for the Appeal Tribunal to consider when deciding under section 82 whether to “deal with” the appeal as a new application or as a review of the original decision.
The authority submitted that, while there is no avenue of appeal to the appeal tribunal in respect of a decision under the PD Act, there is an avenue of appeal to the Supreme Court pursuant to section 86(2) of the ACAT Act. That section provides for an appeal to the Supreme Court “on a question of law from the original decision of the tribunal”. The authority did not consider whether a consent order made without holding a hearing is an “original decision of the tribunal” within the meaning of section 86, nor how a consent order made in those circumstances may give rise to a “question of law” that is susceptible to appeal to the Supreme Court.
The authority submitted that, in earlier decisions, the tribunal had been satisfied that ‘exceptional circumstances’ justifying the making of an order under section 56(c)(iii) included:
(a)considerations relating to possible breaches of the Human Rights Act 2004: Commissioner for Social Housing v CC [2017] ACAT 17;
(b)to ensure the decision of the tribunal was given full effect: Reynolds v Chessell & Anor [2019] ACAT 119; and
(c)based on sufficient doubt regarding the extent of the tribunal’s jurisdiction: NG Woden Pty Ltd v Commissioner for ACT Revenue [2020] ACAT 77.
The authority did not discuss what the Tribunal should make of those decisions, which I have read. I found nothing in them that informs the considerations relevant to the decision I must make in this case. The respondent submitted that none of the decisions are relevant because they do not concern final orders entered by consent, or an agreement to vary such orders, or the meaning of rule 70. I agree. Although I have read the decisions, I do not propose to discuss them or consider them in making my decision.
The developer’s submissions
The developer submitted that the Tribunal’s power to reopen the consent orders made on 26 October 2018 in the present circumstances lay in sections 6, 7 and 56 of the ACAT Act.
The objects of the ACAT Act set out in section 6 include, among other things, to ensure that access to the tribunal is simple and inexpensive and to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice.
The tribunal principles set out in section 7 include that, in exercising its functions under the ACAT Act, the tribunal must seek to ensure that its procedures are as simple, quick, inexpensive, and informal as is consistent with achieving justice and are implemented in a way that facilitates the resolution of issues between the parties so that the cost of the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
Section 56 provides two possible bases for making the orders sought, namely subsections 56(b) and (c).
Section 56(b) gives the tribunal power to make orders with the consent of the parties. The power is an independent source of power and is not limited by reference to section 56(c). In the present case, where final orders were entered by consent, the power conferred by section 56(b) extends to circumstances where the parties have consented to vary final orders entered previously by consent.
Section 56(c)(iii) gives the tribunal power to amend or set aside an order if extraordinary circumstances make it appropriate to do so. The developer referred to the observations of President Neate and Senior Member Orr QC in Council of the Law Society of the Australian Capital Territory v LP 201920 (No.2) [2021] ACAT 51 about the meaning of ‘exceptional circumstances’ in section 433(1) of the Legal Profession Act 2006 (LP Act) which provides, in substance, that if the tribunal finds a legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, it must order the practitioner to pay costs unless the tribunal is satisfied that ‘exceptional circumstances’ exist. The tribunal said at [44]:
Although the section is structured as a mandatory requirement, it is subject to ‘exceptional circumstances’. That term is not defined. It therefore takes its ordinary meaning of “forming an exception or unusual instance; unusual; extraordinary”. ‘Extraordinary’ in turn means “beyond what is ordinary; out of the regular or established order.” It is a term often used in law. In Plaintiff M174/2016 v The Minister for Immigration and Border Protection Gageler, Keane and Nettle JJ observed:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare, but it cannot be one that is regularly, or routinely, or normally encountered”.
This in effect confirmed earlier decisions, including in relation to section 433 and similar provisions. Whether there are exceptional circumstances depends on the facts of the case, and all the relevant circumstances surrounding it. It is not correct, therefore, that the categories and examples of exceptional circumstances have been closed by previous decisions and their particular facts.[6]
[6] Council of the Law Society of the Australian Capital Territory v LP 201920 (No.2) [2021] ACAT 51 at [44], quoting Plaintiff M174/2016 v The Minister for Immigration and Border Protection [2018] HCA 16 at [30]
The developer submitted that “[t]hose observations apply equally to ss 56(c)(iii) and require only that the circumstances be ‘beyond what is ordinary’ or “unusual”, but not unique, unprecedented, or very rare”.[7]
[7] Party Joined outline of submissions dated 28 September 2021 at [18]
The developer submitted that rule 70 of the ACAT Rules provides a separate head of power to set aside or vary a final order entered by consent if it is in the interests of justice to do so. The authority for this was said to be The Owners – Units Plan 2881 v Stojanovic [2020] ACAT 113 where Senior Member Katavic said at [33]:
Finality of judgements is a central principle of the judicial system. Once controversies are resolved, they are not to be reopened except in a few, narrowly defined, circumstances. Such circumstances are found in rules governing the reopening of final orders after they have been formally recorded. Any challenge to final orders may also be the subject of appeal. In relation to consent orders, rule 71(6) [sic – rule 70(6)] of the ACT Civil and Administrative Tribunal Procedures Rules 2020 specifically sets out the matters the tribunal may take into account in considering whether to set aside a final order made by consent.
The respondent submitted this meant that rule 70 did not make it necessary to show that there were extraordinary circumstances making it appropriate to amend or set aside the order.
Alternatively, the developer submitted that rule 70 is an expression of the considerations that the tribunal ought to consider when a party applies to set aside a consent order under section 56(c). Rule 70 provides for considerations that inform whether there are extraordinary circumstances making it appropriate to amend or set aside a consent order.
The developer submitted that:
…it is plainly an extraordinary circumstance, in the sense of unusual or out of the ordinary, that each Applicant and the Party Joined would agree, almost three years later, to amend final orders. This has been arrived at following a period of negotiation, and will result in a development which meets the needs of both the developer and the neighbour. It would, the Party Joined submits, clearly be a circumstance which is extraordinary for this agreement to arise years later in the form which it has.[8]
[8] Party Joined outline of submissions at [24]
To the extent that the Tribunal may consider rule 70 provides an independent head of power, the developer submitted that the interests of justice militate in favour of making the proposed orders:
…as all parties affected by the orders agree to have them amended in the manner proposed. The resulting form of development will be consistent with not only the present, actual wishes of the active parties but also with the regulator’s view of the legislation. As it will result in an approvable development consistent with the parties’ desires, the interests of justice favour the making of the order.[9]
[9] Party Joined outline of submissions at [25]
In summary, the developer submitted that if all parties consented, the Tribunal had power to make the orders by consent under section 56(c)(iii). However, in the absence of consent from the authority, the developer submitted that:
…the Respondent’s indication that the proposed development would result in a compliant development is a relevant factor for considering whether there are extraordinary circumstances. When taken together with the expressed consent of all other parties, the Tribunal could be satisfied that there are extraordinary circumstances which exist which justify the exercise of power in s 56(c)(iii). Paradoxically, the fact that the Respondent agrees that the resulting development will be compliant while withholding consent based upon a misconception of its role in assisting the Tribunal is a part of the present case which makes the matter extraordinary.[10]
Consideration
Orders where parties agree the terms of a decision on a merits review
[10] Party Joined outline of submissions at [31]
The tribunal’s jurisdiction to make substantive or procedural orders in relation to an application for merits review of a planning decision is governed by the provisions of the ACAT Act and the PD Act.
The tribunal has power under section 55 of the ACAT Act to make a final order by consent without holding a hearing, or if a hearing has begun, without completely dealing with the application at the hearing. The power is conditioned, among other things, on the tribunal being satisfied that an order in, or consistent with, the agreed terms would be within the powers of the tribunal and appropriate for the tribunal to make.[11]
[11] ACAT Act section 55(1)(c)
In a merits review of a planning decision, the first requirement is that the order must be one the tribunal can make under section 68 of the ACAT Act. That is, the order must either confirm the decision under review, vary the decision, or set aside the decision and either make a substitute decision or remit the matter to the authority for reconsideration in accordance with any direction or recommendation of the tribunal.
The second requirement is that the order must be one that the tribunal can make under the PD Act. Where the decision under review is a decision to approve a development subject to conditions in the merit track, the order must be one the tribunal can make considering the provisions of section 119. Relevantly, section 119(1)(a) prohibits giving approval for a development proposal in the merit track unless the proposal is consistent with all relevant codes applicable to the development. The tribunal does not have power to make an order that is not consistent with section 119. An order of the tribunal purporting to do so would amount to a failure to exercise the tribunal’s jurisdiction to conduct a merits review in accordance with chapter 13 of the PD Act and division 6.3 of the ACAT Act. An order under section 55 of the ACAT Act deciding an application on terms agreed by the parties that conflict with section 119 of the PD Act “lacks legal foundation and is properly regarded, in law, as no decision at all”.[12]
[12] Minister for Immigration and Cultural Affairs v Bhardwaj [2002] HCA 11 at [51] (Gaudron and Gummow JJ) cited in Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 at [73] (Burns and Rangiah JJ)
Relevant to both requirements, is that the tribunal must be satisfied the decision it is asked to make in accordance with the agreed terms does not impermissibly delegate to the authority decisions on important matters that may produce an unexpected outcome or that offends against the principle of ‘finality’.[13]
[13] See Allen v ACT Planning and Land Authority & Ors [2021] ACAT 88 at [241]-[244], discussing Scott v Wollongong City Council (1992) 75 LGRA 112 at 118-119; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 at [28]; GPT Re Limited v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 at [48]
Where the exercise of a power depends on the existence of a jurisdictional fact, the tribunal must make a finding in relation to the existence of the fact. Where the jurisdictional fact involves the tribunal being satisfied as to a particular matter, the necessary state of satisfaction must exist before the tribunal’s power is enlivened. Relevantly, that means the tribunal must be satisfied that giving development approval subject to conditions to a development proposal in the merit track in accordance with the terms agreed by the parties is consistent with section 119 of the PD Act.
It is not unusual for the tribunal to be asked to make orders by consent in planning matters without holding a hearing, often before the tribunal has considered the substantive planning issues the parties have raised or the tribunal may decide to raise of its own motion after considering the evidence and submissions in advance of the hearing. The practice in the past has been for the tribunal either to assume that section 119 does not preclude the making of the proposed consent orders, or to rely on informal assurances given by the parties’ representatives.
As the authority’s submissions filed in this application affirm, in planning disputes the authority is meant to act as a model litigant. The tribunal is entitled to expect the authority would not consent to approval being given to a development proposal if there is any doubt whether the proposal complies with all relevant codes or otherwise is prohibited by section 119 of the PD Act.
The history of the present applications shows that past practise may not be a sound basis upon which the tribunal can, and in future should, act when considering whether to make a consent order of the kind under discussion. In future, a joint application under section 55 of the ACAT Act for the tribunal to make an order deciding an application for merits review of a decision to give planning approval for a proposal in the merit track in accordance with agreed terms, should be supported by an affidavit from a relevant officer of the EPSDD. As a minimum the affidavit should certify that in the opinion of the relevant officer, the development proposal, confirmed or varied in accordance with the agreed terms, is consistent with all relevant codes and that development approval would not otherwise be inconsistent with section 119 of the PD Act.
That does not relieve the tribunal of the need to be satisfied that the order does not lack certainty, or is not otherwise inconsistent with the principle of ‘finality’ mentioned earlier.
Nor does it relieve the tribunal of the need to be satisfied that it is appropriate to make the order. For example, the tribunal may not be satisfied that it is appropriate to make an order by consent where the tribunal has considered the parties’ evidence and submissions in preparation for the hearing and has formed a preliminary view that the development proposal may raise code compliance issues that do not appear to be addressed by the agreed terms. It may be appropriate in those circumstances for the tribunal to treat the agreed terms as dealing with part of the application, and hear the parties in relation to the further matters the tribunal considers arise or may arise out of the application.
Varying or setting aside consent orders as to the terms of a tribunal decision on a merits review
Section 56(c) of the ACAT Act is the tribunal’s only source of power to amend or set aside a final order. Apart from the limited circumstances envisaged by section 56(c)(i) and (ii), the tribunal has power to vary or set aside an order only if “extraordinary circumstances make it appropriate” to do so as provided by section 56(c)(iii).[14]
[14] See, eg, Legal Practitioner v Council of the Law Society of the ACT (No.2) [2015] ACTSC 352 at [142] (per Murrell CJ); Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 at [24]-[30] (per Penfold J, dissenting but not in relation to this issue); Blackshaw & Anor v Campbell [2019] ACAT 41 at [27] (Presidential Member McCarthy)
The tribunal’s jurisdiction under section 56(c)(iii) does not depend on a party to the original application making an application for an order under section 56(c)(iii). Where, for example, the tribunal has purported to make an order that involves a failure to exercise jurisdiction, rather than an error within jurisdiction, section 56(c)(iii) permits the tribunal to take steps of its own motion to correct the error, subject to observing the requirements of natural justice and procedural fairness.[15]
[15] Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 at [80] (per Burns and Rangiah JJ); See also rule 70(2) of the ACAT Rules
These principles apply regardless of whether the order is imposed on parties after the tribunal has held a hearing, or made by consent without the tribunal holding or completing a hearing. In either case, ‘extraordinary circumstances’ must exist and the circumstances must “make it appropriate to amend or set aside the order”. The test is objective. The tribunal, when considering whether to exercise the power under section 56(c)(iii), must identify the relevant circumstances, determine whether they are ‘extraordinary’ and determine whether they “make it appropriate to amend or set aside the order”.
Contrary to the submissions of the developer, rule 70 of the ACAT Rules is not an independent source of power for the tribunal to amend or set aside an order made by consent. I do not understand the observations of Senior Member Katavic in The Owners – Units Plan 2881 v Stojanovic [2020] ACAT 113 at [33] to say otherwise. The ACAT Rules are made pursuant to the tribunal’s rule-making power in section 24 of the ACAT Act. Pursuant to section 45 of the Legislation Act 2001, the power to make rules includes the power to make rules in relation to any matter necessary or convenient to be prescribed for carrying out or giving effect to the jurisdiction of the tribunal under any law authorising or requiring anything to be done in or in relation to the tribunal. A rule cannot be relied upon to enlarge the tribunal’s statutory jurisdiction. If a rule is capable of being read that way, it must be read down to be consistent with the tribunal’s jurisdiction. If the language of the rule does not permit it to be read down, the rule is invalid.
Rule 70 prescribes rules relating to the exercise of tribunal’s discretion to set aside an order under section 56(c). It does not refer in terms to the tribunal’s jurisdiction to amend an order under section 56(c). The rule contemplates only that if a final order is set aside under the rule, the tribunal may make, among other things, any other order the tribunal considers appropriate, including an order in substitution for the order set aside.
The rule applies to a final order made by consent: rule 70(1)(c). The tribunal may set aside a final order on application by a party or on its own initiative, but only if it is in the interests of justice to do so: rule 70(2) and (3). In considering whether to set aside a final order made by consent, the tribunal may (not must) consider the matters set out in subrules 70(6)(a) to (d). They include whether the consent was obtained by fraud, duress, suppression of relevant information or evidence or reliance on false evidence or information; whether any other party was responsible for this; any prejudice to any other party; and any other issue the tribunal considers relevant.
Rule 70(6) does not mean that ‘extraordinary circumstances’ need not exist before the tribunal can set aside a final order made by consent. If it is established that consent was obtained by fraud, duress, suppression of relevant information or evidence, or reliance on false evidence or information, it would be a very short step for the tribunal to find that ‘extraordinary circumstances’ exist. Whether the circumstances make it appropriate to set aside the order and possibly substitute a different order in its place, necessarily must involve considering where responsibility for the misinformation lies and whether any party is prejudiced.
That does not mean that rule 70(6) is an exhaustive statement of circumstances that may amount to ‘extraordinary circumstances’ for the purpose of deciding whether it is appropriate to amend or set aside a final order made by consent under section 56(c)(iii). Clearly it is not.
‘Extraordinary circumstances’ is not a defined term and therefore the words must be given their ordinary meaning. I accept the developer’s submissions that the observations of President Neate and Senior Member Orr in Council of the Law Society of the ACT v LP 2019120 [2021] ACAT 51 about the meaning of ‘exceptional circumstances’ in the context of section 433(1) of the LP Act apply with equal force to the meaning of ‘extraordinary circumstances’ in section 56(c)(iii). The ordinary meaning of ‘exceptional’ and ‘extraordinary’ is interchangeable for most purposes and in most contexts. In the context of section 56(c)(iii) I see no practical difference in the operation of the section if it had referred to ‘exceptional circumstances’ rather than ‘extraordinary circumstances’. I find it difficult to conceive of circumstances that are ‘exceptional’ but not ‘extraordinary’. I agree with the developer’s submission that to be ‘extraordinary’ a circumstance need only be “beyond what is ordinary” or “unusual” but need not be unique, unprecedented or very rare.
While this informs the meaning of ‘extraordinary circumstances’, whether there are ‘extraordinary circumstances’ that ‘make it appropriate to amend or set aside’ a final order made by consent must depend on the facts of the case and requires all relevant circumstances to be considered. With that in mind, examples of other decisions where the tribunal has exercised its discretion under section 56(c)(iii), or has refused to do so, may be of limited assistance in deciding an application under section 56(c)(iii) unless the circumstances are relevantly identical, or sufficiently similar for a parallel to be drawn with the other case.
Section 55 of the ACAT Act permits the tribunal to make an order deciding an application under section 56(c)(iii) in accordance with terms agreed by the parties to the original application. I have explained earlier the requirements for the tribunal to make a final order by consent deciding an application for a merits review of a development approval in the merit track. Where parties seek to invoke the tribunal’s power under section 56(c)(iii) there must, in addition, be evidence placed before the tribunal to establish that there are extraordinary circumstances that make it appropriate to amend or set aside the consent order.
I doubt whether it is sufficient of itself that all parties have consented to proposed amendments to a development approval to constitute ‘extraordinary circumstances’ for the purposes of section 56(c)(iii). The fact that consent has been achieved only after lengthy negotiations appears to me to be immaterial. A highly relevant consideration would be whether it is open for the developer to apply to amend the development approval under division 7.3.11 of the PD Act. In that context, in the application before me, both the authority and the developer appeared to see section 198(5)(c)(i) of the PD Act as a potential obstacle to the authority approving an application to amend the development approval because the changed development proposal would be in breach of a condition ‘imposed (rather than confirmed or varied)’ by the tribunal in the consent orders made on 26 October 2018. That depends on whether a condition of development approval inserted by an order made by consent is a condition ‘imposed’ by the tribunal. The issue was not argued and does not arise for decision here.
On the other hand, one can readily envisage circumstances where, for example, an owner of a neighbouring property consents to a development approval subject to conditions intended to protect the owner’s privacy and/or solar access but, as the building takes shape, realises that the outcome is unsatisfactory. If the developer consents to make changes to meet the owner’s legitimate concerns and the authority is satisfied that the amendment proposal remains code compliant, I see no reason in principle why, in an appropriate case, that may not constitute ‘extraordinary circumstances’. Considerations of ‘finality’, while obviously important, are likely to be less influential where final orders are made by consent. All that the tribunal does when it makes such orders is give statutory force to the agreement of the parties.
Again, a relevant factor would be whether section 198(5)(c)(i) of the PD Act precludes the authority from approving an application to amend the development approval where that would involve amending or deleting a condition of approval included in consent orders. If there is no statutory impediment for the authority to do so, the fact that it may appear more efficient or expedient to have the orders amended or set aside by consent under section 56(c)(iii) instead of going through the process of amending the DA, would not constitute ‘exceptional circumstances’.[16]
[16] Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 at [79]
However, the decision in this application does not depend on such considerations.
The ‘extraordinary circumstances’ in this case
The consent orders made on 26 October 2018 in AT 71/2018 and AT 74/2018 confirmed the decision to approve the DA subject to additional conditions, including in A3(c)(ii) the provision of amended plans demonstrating that the “finished floor level is to be reduced by 250mm (as shown at Attachment A, Site Plan A007)”. I accept Mr Pini’s evidence that compliance with condition A3(c)(ii) may result in non-compliance with the INPC, MUHDC and PVAGC of the Territory Plan.
It follows that the development proposal, amended in accordance with condition A3(c)(ii), did not comply with all relevant codes applicable to the development. Section 119(1)(a) prohibited development approval being given in those circumstances. It follows also that the tribunal had no power to approve the development proposal on 26 October 2018 and the orders made by consent on that date are invalid. The result is that there is no valid development approval in force for this development.
The fact that condition A3(c)(ii) was not observed in the construction of the development does not overcome the fact that a development approval requiring compliance with a condition that, if observed strictly, would be inconsistent with a relevant code, is invalid. I have explained earlier that there is no evidence before me that the development as built complies with the vertical siting tolerance provided by section 1A.11 of schedule 1A of the Planning Regulation. Even if such evidence had been provided, the vertical siting tolerance relates to the ‘applicable height criteria’ in the development approval. The lack of a valid development approval means that the authority’s reliance on this issue as a basis for opposing the making of orders under section 56(c)(iii) is misplaced.
I have explained earlier my reasons for concluding that the making of a consent order that is not consistent with section 119 involves a failure by the tribunal to exercise jurisdiction, rather than an error within jurisdiction. The decision reflected in the consent orders made on 26 October 2018 in both applications “lacks legal foundation and is properly regarded, in law, as no decision at all”.[17]
[17] See paragraph 57 and footnote 13
The developer and the authority share responsibility for the unfortunate circumstances that have arisen. The developer was responsible to ensure that the application for development approval was accompanied by information or documents addressing the relevant rules and criteria. The authority was responsible to ensure, before signifying its agreement to the amended development proposal, that development approval subject to the proposed conditions set out in the consent agreement was consistent with section 119 of the PD Act.
Neither applicant bears any responsibility for what happened. All that I can surmise is that if the applicants had been aware that condition A3(c)(ii) was unlawful, any agreement that may have resulted at the time most likely would have been on different terms. It is not open to speculate what those terms might have been. All that one can do at this stage is to give effect to Mr Davidson’s and Mr Duffy’s agreement that the changes implemented by the developer, some of which were at Mr Duffy’s request, should be allowed to stand provided they are not inconsistent with section 119 of the PD Act.
I find that these circumstances are ‘extraordinary’ and make it appropriate for the Tribunal to exercise the power under section 56(c)(iii).
Conclusion and orders
The developer did not apply to be joined as a party to Mr Davidson’s application (AT 71/2018). That was an unfortunate oversight. It means that the developer lacks standing to make an application under section 56(c)(iii) in relation to the consent orders made in relation to Mr Davidson’s application for merits review of the authority’s decision. However, the Tribunal may make an order under section 56(c)(iii) of its own motion. I consider that it is appropriate to do so in this case.
It is not appropriate to amend the consent orders because they were not validly made.
Accordingly, I propose to make orders in AT 71/2018 and AT 74/2018 setting aside the consent orders made on 26 October 2018. As Mr Davidson has consented to the dismissal of his application for review of a decision filed on 20 July 2018, I propose to make an order to that effect in AT 71/2018.
That leaves the question of the form of the substitute order that should be made in AT 74/2018. The development requires retrospective development approval. I propose making an order to that effect. The development proposal therefore must be based on plans showing the development as built. The authority must be satisfied that the development proposal, in the form submitted to the Tribunal for approval, is consistent with all relevant codes and that development approval would not otherwise be inconsistent with section 119 of the PD Act.
I propose to give the parties an opportunity to consider these reasons in draft form and to agree the final orders in AT 74/2018 required to give effect to my decision. The draft final orders submitted to the Tribunal must be accompanied by an affidavit deposing to the matters referred to in paragraph 62.
Postscript
The parties have agreed the form of orders required to give effect to my decision and Mr Pini has stated in an affidavit affirmed on 26 October 2021:
I as [sic] satisfied that the development proposal, in the form proposed to be approved subject to conditions at Annexure 1, is consistent with all relevant codes and that the development approval subject to conditions would not otherwise be inconsistent with section 119 of the Planning and Development Act 2007.
I have reviewed the draft orders and am satisfied that the Tribunal has power to make the orders, and that it is appropriate to do so in the circumstances.
………………………………..
Senior Member M Orlov
| Date(s) of hearing | 15, 24 September and 5 October 2021 |
| Applicant AT 71/2018 | In person |
| Applicant AT 74/2018 | In person |
| Solicitors for the Respondent: | Ms S Gasser, ACT Government Solicitor |
| Counsel for Party Joined | Mr B Buckland |
| Solicitors for Party Joined: | Ms L McGee, Master Builders Association of the ACT |
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