Duffy v ACT Planning and Land Authority; Davidson v ACT Planning and Land Authority (Administrative Review)

In the Administrative Appeals Tribunal, Duffy and Davidson brought an application against the ACT Planning and Land Authority seeking to amend or set aside consent orders confirming the Authority's decision to approve a development application subject to additional conditions. The applicants argued that an additional condition requiring the finished floor levels to be lowered by 250mm was inconsistent with relevant codes and therefore invalid. The tribunal was required to decide whether the orders made by consent could be amended or set aside under section 56(c)(iii) of the Administrative Appeals Tribunal Act 1995 (ACT), and what constituted "extraordinary circumstances" that would justify such an amendment or setting aside. The tribunal concluded that the making of the consent orders involved a failure by the tribunal to exercise jurisdiction, rather than an error within jurisdiction. As there was no valid development approval in force, the tribunal set aside the consent orders and made substitute orders giving retrospective development approval. The tribunal considered that the meaning of "extraordinary circumstances" was objective and that rule 70(6) of the ACAT Rules was not an independent source of power for the tribunal to amend or set aside an order made by consent.

The tribunal held that it had jurisdiction to set aside the consent orders even though the orders were made by consent and not following a hearing. The tribunal was not bound by the parties' agreement and could still exercise its jurisdiction to ensure that any order it made was appropriate. The tribunal concluded that the additional condition requiring the finished floor levels to be lowered by 250mm was inconsistent with the relevant codes and therefore invalid. As a result, the development approval was prohibited in those circumstances and there was no valid development approval in force. The tribunal held that the circumstances were extraordinary and made it appropriate to set aside the consent orders and make substitute orders giving retrospective development approval. The tribunal considered the requirements for making orders by consent and concluded that it was appropriate to do so in this case. The tribunal's decision was based on the objective test of whether the circumstances were extraordinary and made it appropriate to amend or set aside the order.

The tribunal made the following orders: (1) the orders made by consent on 26 October 2018 are set aside; and (2) the application for review of a decision filed on 20 July 2018 (ACAT File Number AT 71/2018) is dismissed. The tribunal's decision highlights the importance of ensuring that any order made by the tribunal is appropriate and consistent with the relevant legislation and codes. The tribunal also emphasised the need for parties to ensure that any agreed terms are consistent with the relevant legislation and codes before seeking to have them incorporated into a consent order.