Errington & Anor v ACT Planning and Land Authority
[2019] ACAT 47
•24 May 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ERRINGTON & ANOR v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2019] ACAT 47
AT 104/2018
Catchwords: ADMINISTRATIVE REVIEW – application for ACAT to review a decision to refuse to make a Controlled Activity Order – application to dismiss the application for review – whether application for review is “lacking in substance” – criteria to be satisfied before striking out or dismissing an application – circumstances surrounding decision not to make Controlled Activity Order
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 54
Legislation Act 2001 s 126
Planning and Development Act 2007 ss 7, 8, 247, 269, 306, 307, 308, 312C, 351, Schedule 1, Schedule 2
Subordinate
Legislation cited: O’Malley Precinct Map and Code
Parking and Vehicular Access General Code
Single Dwelling Housing Development Code
Territory Plan
Cases cited:Buckley v Tutty (1971) 125 CLR 353
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Ezekiel-Hart v Reis and Anor (Appeal) [2017] ACAT 76
Galovac Pty Limited v Australian Capital Territory [2010] ACTSC 132
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Tribunal:President G Neate AM
Date of Orders: 24 May 2019
Date of Reasons for Decision: 24 May 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 104/2018
BETWEEN:
DEBBIE ERRINGTON
First Applicant
IAN ERRINGTON
Second Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL:President G Neate AM
DATE:24 May 2019
ORDER
The Tribunal orders that:
1.The application by the ACT Planning and Land Authority for the Tribunal to dismiss the Applicants’ application for review of the decision of the Authority to refuse to make a Controlled Activity Order in relation to Block 22 Section 16 O’Malley is dismissed.
………………………………..
President G Neate AM
REASONS FOR DECISION
Introduction
1.Debbie and Ian Errington are the Crown lessees of Block 21 Section 16 in O’Malley in the Australian Capital Territory (Block 21). It is a battle-axe block with access to Bulwarra Close via a driveway which separates two neighbouring properties, each of which has a frontage to Bulwarra Close.
2.The neighbouring property to the east is Block 22 Section 16 at 16 Bulwarra Close (Block 22, or the Property). It is the property to which the present proceedings relate. The Crown lessee is John Conrad Pereira Tobler. In about 1990, a building was constructed on Block 22. The Property was subleased to the High Commission of Negura Brunei Darossalam in Australia in about October 1990. It is currently the site of the Kuwait Cultural Office (sometimes described as the Kuwait Cultural Centre).
3.On the western side of the driveway to Block 21 is Block 20 Section 16 at 12 Bulwarra Close (Block 20), owned by Chris Maleganeas, on which the Embassy of the United Arab Emirates (UAE) is located. There have been separate proceedings before the ACT Civil and Administrative Tribunal (the Tribunal) in relation to Block 20, to which reference is made later in these reasons for decision.
4.For some years, the Erringtons have been concerned about the impact that activities on Block 22 and Block 20 have had, and continue to have, on access to and use of their Block 21. For example, the Erringtons contend that vehicles parked on Block 22, the adjoining verge and the street create dangerous conditions for pedestrians and drivers, and restrict line of sight into and from the driveway to Block 21.
5.On 22 August 2018, Mrs Errington completed an application for a Controlled Activity Order (CAO) in relation to Block 22. On the application form she alleged failure to comply with the Crown lease for that land.
6.By letter dated 31 October 2018, a delegate of the ACT Planning and Land Authority (ACTPLA) advised Mrs Errington that he had refused to make the CAO in relation to Block 22. He provided a written notice of the decision and the reasons for it.
7.On 26 November 2018, Mr and Mrs Errington lodged with the Tribunal an application for review of that decision. They sought the setting aside of the decision and a CAO to bring Mr Tobler and his Property into compliance with the Planning and Development Act 2007 (P & D Act). A presidential member of the Tribunal made directions in relation to that application.
8.On 10 January 2019, the ACTPLA lodged an application for interim and other orders with the Tribunal (the strikeout application). The ACTPLA sought an order that either:
(a)the Erringtons’ application for review be dismissed; or
(b)the ACTPLA decision under review be affirmed.
9.Following directions made by a presidential member on 11 January 2019, the strikeout application was listed for hearing by the Tribunal on 5 February 2019. Documents were provided by each party to the other and to the Tribunal, some of them on the evening before and the morning of the hearing on that date. The Erringtons participated by telephone from Brisbane. After a full day, the hearing was adjourned to 7 February 2019. Additional evidence and submissions were provided at or before the adjourned hearing.
10.At the conclusion of that hearing, the decision on the strikeout application was reserved. These are the reasons for decision on that application.
The issue
11.Section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides, in part:
32 Dismissing or striking out applications
(1) This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2) The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
Note If the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
12.The strikeout application was made by a party (section 3(2)(b), (3)). Given the way the that application was argued, the only issue under section 32 is whether the Tribunal as presently constituted should dismiss the application for review lodged by the Erringtons on 26 November 2018 on the basis that the Tribunal considers that the application is ‘lacking in substance’ (section 32(1)(b)).
13.In the alternative, the ACTPLA submits that, pursuant to section 54 of the ACAT Act, the Tribunal should proceed to determine the application without holding a hearing and should affirm the ACTPLA decision under review.
The applicable law
14.The Tribunal should not lightly strike out any application. Counsel for the ACTPLA acknowledged that his client accepted the high onus and that orders of this kind are made sparingly. He referred the Tribunal to the judgments of the High Court of Australia in General Steel Industries Inc v Commissioner for Railways (NSW)[1] (General Steel) and the ACT Supreme Court in Galovac Pty Limited v Australian Capital Territory[2] (Galovac).
[1] (1964) 112 CLR 125
[2] [2010] ACTSC 132
15.In General Steel, Barwick CJ agreed that:
…the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. [3]
[3] (1964) 112 CLR 125 page 129
16.Having examined the case law on the subject, his Honour observed that:
…these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".[4]
[4] (1964) 112 CLR 125 page 129
17.His Honour continued:
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".[5]
[5] (1964) 112 CLR 125 page 129
18.Having noted that some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court, Barwick CJ stated that “the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.”[6] He quoted with approval the summary of authorities by Dixon J (as he then was) in Dey v Victorian RailwaysCommissioners (Dey):[7]
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.[8]
[6] (1964) 112 CLR 125 page 130
[7] [1949] HCA 1; (1949) 78 CLR 62 page 91
[8] [1949] HCA 1; (1949) 78 CLR 62 page 91
19.Although Barwick CJ agreed with Latham CJ in the Dey case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings,[9] in his opinion:
great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.[10]
[9] (1949) 78 CLR 84
[10] (1964) 112 CLR 125 page 130
20.In Galovac, Jagot J drew on those and other judicial authorities when she wrote:
There was no dispute about the principles that apply:
(1) The party seeking summary judgment faces a “very high threshold” (Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143 at 12).
(2) The lack of a cause of action must be “clearly demonstrated” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).
(3) The procedure calls for “exceptional caution” (General Steel at 129).
(4) The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91).
(5) Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686; [2005] FCA 244 at [14] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965).
(6) The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West v State of New South Wales [2007] ACTSC 43 at [9]).
(7) The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).[11]
[11] [2010] ACTSC 132 page 5
21.A differently constituted tribunal considered the scope of section 32 in Ezekiel-Hart v Reis and Anor[12] and wrote:
An application for summary dismissal under section 32 of the ACAT Act is similar to strike out or summary dismissal proceedings in a court. Such proceedings are subject to a high threshold, generally that there is no cause of action or no ground of appeal. As French CJ and Gummow J stated in Spencer v Commonwealth, the exercise of “powers to summarily terminate proceedings must always be attended with caution.”[13]
[12] [2017] ACAT 76, [18]
[13] Spencer v Commonwealth (2010) 241 CLR 118 page 24
22.Bearing in mind the criteria to be satisfied in deciding whether to strike out the Erringtons’ application for review of the ACTPLA decision dated 31 October 2018, I turn now to the circumstances which gave rise to the application for a CAO and the issue of a letter of relief on which the ACTPLA relied in making the decision under review dated 31 October 2018.
Background chronology of events
23.On 17 August 1989, before the grant of the Crown lease over Block 22 was issued, Gillespie-Jones & Co (the legal firm then acting for Mr Tobler) wrote to Peter Griffiths in the Special Purpose Leases section of the ACT Administration’s Office of Industry and Development.[14] The letter referred to the firm’s previous letter of 12 July 1989 and a conference between the writer and Mr Griffiths on 11 August 1989. The letter confirmed Mr Griffiths’ advice that Block 22 was subject to the National Capital Development Commission Policy Plan for specified O’Malley North West Sections, and that the firm’s client may submit plans to the building section for a building to be constructed on Block 22 for approval:
indicating that the building is to be used primarily as a residence but having subsidiary offices to be used as a chancellery, that upon submission of such plans consideration would be given as to the size or extent of the rooms to be used as a chancellery having regard to the Policy Plan and the residence generally and that following approval of such plans our client could use or permit the building to be used in accordance with the plans without being obliged or it being necessary to make application to vary the purpose clause in the Crown Lease to include as a permitted use of the land “diplomatic residential purposes” or “a chancellery” (although our client could make such an application if he wished).[15] (emphasis added)
[14] Exhibit A1, T documents page 44
[15] Exhibit A1, T documents page 44
24.The letter continued:
Having considered the matter, our client instructs us that in these circumstances he will execute the Crown Lease in its present form and obtain the appropriate approval to plans for the building and not make application to vary the purpose clause in the Crown Lease as following approval of plans such an application is clearly not necessary.[16] (emphasis added)
[16] Exhibit A1, T documents page 44
25.On 22 August 1989, a Crown lease over a Block 22 was granted to Mr Tobler, who remains the sole proprietor of the land. Clause 1 of the lease stated that Mr Tobler covenanted with the Commonwealth:
(g)To use the said land for residential purposes only;
(h) That the building erected on the said land will be used only as a single unit private dwelling house and any out buildings erected on the said land shall not be used as a habitation;[17] (emphasis added)
[17] Exhibit A1, T documents page 133
26.Building plans showing rooms for Chancellery use[18] were apparently approved by the Interim Territory Planning Authority on 25 August 1989,[19] and the building was constructed.
[18] Exhibit A1, T documents page 20
[19] Exhibit A1, T documents pages 39, 84
27.By letter to Gillespie-Jones & Co dated 9 October 1989, Mr Griffiths referred to the firm’s letter of 17 August 1989 concerning plan approval for Block 22.[20] Mr Griffiths noted that building plans identifying three rooms for Chancellery use had been approved by the Interim Territory Planning Authority and continued:
however, as you are aware, even though the use is consistent with the O’Malley North West Policy Plan it is inconsistent with the purpose clause of the Crown Lease.
Contrary to earlier advice, your client will now need to apply for a variation of purpose clause. Your client would need to execute the Crown Lease in its present form and formally apply for a variation to the Purpose Clause to reflect the Chancellery use together with the gross floor area required[21]. (emphasis added)
[20] Exhibit A3, pages 1-2
[21] Exhibit A3, pages 1-2
28.There is no evidence before this Tribunal of any application for a variation of the purpose clause. Rather, clause 1 still includes the terms quoted in [25] above.
29.The Crown lease for Block 22 bears a notation entered on 23 October 1990 in relation to a sublease to the High Commission of Negara Brunei Darussalam in Australia.[22] An undated list of Brunei Embassies world-wide included reference to the High Commission of Brunei Darussalam in Australia at 16 Bulwarra Close, O’Malley[23] (although it is no longer located at that address).
[22] Exhibit A1, T documents page 136
[23] Exhibit A1, T documents page 125 (a screenshot taken on 28 August 2018 from the Brunei Embassy homepage — to a sign at the entrance to Block 22,[24] and an entry on the website of the Department of Foreign Affairs and Trade (DFAT) showing “Foreign embassies and consulates in Australia”,[25] the premises are now occupied by the Kuwait Cultural Office. There was no evidence of when the previous High Commission vacated the premises or when the Kuwait Cultural Office was established there. Nor was the sublease (if any) of the premises at Block 22 to the Embassy of Kuwait in evidence in these proceedings.
[24] Exhibit A3 pages 8, 9
[25] Exhibit A1, T documents page 85
31.On 30 January 2018, there was email correspondence between a resident of 8 Bulwarra Close and the Protocol Branch of DFAT[26] in which the neighbour stated that the UAE Embassy and the Kuwait Cultural Office were occupying the premises (at Block 20 and Block 22 respectively) and conducting businesses there in breach of the Crown leases. The neighbour asserted that the Kuwait Cultural Office had been there for more than eight years. Apart from referring to those breaches of the use of residential land, concerns were expressed about the number of cars parked in the street and other interference with the use of public areas by the neighbours.
[26] Exhibit A1, T documents pages 154-159
32.That correspondence was forwarded to the Senior Manager, Enforcement and Compliance in Access Canberra.[27] It was followed up by an email dated 5 March 2018 asking what was being done in relation to “the numerous complaints you have received from residents of Bulwarra Close regarding the breaches of the crown lease that are occurring from the continued leasing of properties to the UAE embassy and the Kuwait cultural office at 12 and 16 Bulwarra close.”[28] The email foreshadowed action in the Tribunal by the residents of O’Malley.
[27] Exhibit A1, T documents pages 152-154
[28] Exhibit A1, T documents pages 149-150
33.In his reply by email dated 6 March 2018, Peter Apps, Building and Compliance Inspector, Enforcement Unit, wrote:
As for the non-compliance to the Crown lease I have obtained advice from the leasing area of EPSDD[29] that the area in which all embassies are located is defined as being for the use of embassy and chancellery which is permitted under the Territory Plan O’Malley precinct code.
Under the definitions of the Territory Plan
Chancellery means an office attached to an Embassy, high commission, consulate, location or diplomatic residence which is specifically for diplomatic use, which is non-retail commercial use.
Diplomatic residence means a dwelling specifically for the residential use of diplomatic staff of an Embassy, a high commission, a location or a consulate.[30]
[29] Environment, Planning and Sustainable Development Directorate
[30] Exhibit A1, T documents pages 148-149
34.Mr Errington replied by email dated 6 March 2018.[31] He thanked Mr Apps for his advice but stated that he remained “uncertain about the use of 12 Bulwarra and 16 Bulwarra Close.”[32] He asked Mr Apps to confirm “that the dwellings in Bulwarra Close are in fact within the designated embassy/diplomatic precinct?”[33] He continued:
If the embassies are outside the Diplomatic zone and operating in the Residential zone then they should be curtailed, and they should be directed to conform to the use of these as Residential dwellings. Moreover, any negative impact they have had on the residents in that zone should be rectified to meet the standards set out in the appropriate legislation.[34]
[31] Exhibit A1, T documents pages 147-148
[32] Exhibit A1, T documents pages 147
[33] Exhibit A1, T documents pages 147
[34] Exhibit A1, T documents page 147
35.Mr Apps replied by email dated 7 March 2018, to which he attached a copy of the O’Malley Precinct Map and Code and stated that “the shaded area is where chancellery and diplomatic residences can be located within the primary zone outside of this they would require special approval to do so.”[35]
[35] Exhibit A1, T documents pages 147 and 160-167
36.On 22 August 2018, Mrs Errington made an application for a CAO in relation to Block 22.[36] On that part of the application form which invited the applicant to tick the relevant box or boxes for the activity for which they wished a CAO to be made, Mrs Errington ticked:
Failure to comply with:
(a) a lease; or
(b) if a lease is granted subject to the lessee entering into a development agreement and the lessee has entered into such an agreement – the development agreement.[37]
[36] Exhibit A1, T documents pages 108-111, 142-145
[37] Exhibit A1, T documents page 109
I note that paragraph (b) is not relevant for present purposes.
37.Mrs Errington did not tick any other box, including the entry:
Undertaking a development for which development approval is required:
(a) without development approval; or
(b) other than in accordance with the development approval.[38]
[38] Exhibit A1, T documents page 109
38.However, in a document attached to the application, Mrs Errington wrote:
I now seek the following Order under Schedule 2 Controlled Activities Item (1)(a) of the Planning and Development Act 2007 for failing to comply with a provision of a lease and more specifically that:
1. The use/development is in contravention of the Crown Lease at 16 Bulwarra Close, O’Malley;
2. The use/development is not authorised in the current Crown Lease.
…
I seek this Controlled Activity Order under Division 11.3.4 Section 358(3)(c) of the Act, on the grounds that the Lessee (and their tenants/occupants) is in breach of the following Rules and Regulations contained in the Act:
Chapter 9, Leases & Licences: Part 9.2 Grants of Leases generally
247 Use of land for leased purposes
(1) Territory land, or a building or structure on the land, in relation to which a lease has been granted, whether before or after the commencement of this part, must not be used for a purpose other than a purpose authorised by the lease.[39]
[39] Exhibit A1, T documents page 110
39.The application for a CAO was accompanied with a credit card authorisation form for payment of the requisite fee. A Customer Coordination officer asked a colleague by email whether payment should be processed. In response by email dated 22 August 2018, Jo Howard, Building Inspector, Planning Inspector, Enforcement Unit wrote:
I called the applicant for the Application for a controlled activity order to get a better understanding of what the application was for.
The applicant has stated that she believes the lease is in breach of its purpose clause (failing to comply with a lease), which is a controlled activity.
That is, the lease is granted for residential purposes only. It is alleged that the lessee is currently using the land for commercial office accommodation, which has been operating ‘for a couple of years’. No one lives at the property. The business is of a size that there are 20 vehicles parked on the property – all of who are associated with the commercial offices – with overflow parking (associated with the business) of approximately 10 vehicles in the street.
The ‘controlled activity order direction’ would be to ‘Not undertake a controlled activity other than a development’.
The fee should be taken…[40]
[40] Exhibit A1, T documents pages 139-140
40.That email was forwarded to Kevin Thornhill, Customer Coordination, with the message:
Can you make sure this email is attached when sending to investigations, it has the information relating to the controlled activity which hasn’t been included in the application?[41]
[41] Exhibit A1, T documents pages 139
41.Mr Thornhill sent the application form and receipt together with the previous email correspondence to Access Canberra, Building and Planning Compliance.
42.Later that afternoon, a title search in relation to Block 22 on 22 August 2018 (Volume 1130, Folio 22) disclosed no registered encumbrances and interests on the Crown lease.
43.On 29 August 2018, Reuben Gaze and Ajith Buddhadasa conducted a building and planning inspection of Block 22. Their report dated 14 September 2018[42] includes photographs taken from the boundary of Block 22 and includes the following statements:
SCOPE
This report is an investigation tool for the Planning Inspector/Building Inspector/Compliance Auditor to identify compliance with the Planning and Development Act 2007, the Building Act 2004, the Construction Occupations Licensing Act 2004 and relevant subordinate law, and any applicable codes and standards where enlivened through legislation.
PURPOSE
This report is intended as a generic inspection report to support the investigation of building, development and general land use concerns.
OBJECTIVE
To determine whether development, building and land use is consistent with the requirements of ACT building, planning and licensing legislation.[43]
[42] Exhibit A1, T documents pages 113-117, 128-132
[43] Exhibit A1, T documents pages 129
44.The report included the following observations:
From unleased Territory land Access Canberra Officers observed multiple vehicles parked on the land and verge. Signage was also fixed to the verge, including an entrance and an exit sign next two (sic) the two driveway verge crossings. A third larger sign was observed, indicating that the lessee was the Embassy of the state of Kuwait Cultural Office. The Officers did not access the leased land.[44]
[44] Exhibit A1, T documents pages 130
45.The report concluded:
Evidence suggests that the lease is being used for other than a residential use. The use would appear to align more closely with Cultural Facility, which is not a permitted use under the Territory plan for this particular zone (being RZ1), and is not permitted under the Crown lease.[45]
[45] Exhibit A1, T documents pages 131
46.On 14 September 2018, Mr Gaze sent an email to the Protocol Branch of DFAT[46] referring to some “community concerns” that the use of two properties in Bulwarra Close (including Block 22) by overseas diplomatic missions “are not consistent with the purpose clause of the relevant crown leases.” Both properties are within the “embassy zone” so “potentially the use might be authorised via development approvals.” The two applications for CAOs against those properties “forces Access Canberra to make a decision whether or not to issue an order, and then that decision is reviewable by the applicant in the tribunal.” [47] Mr Gaze advised DFAT that he was about to issue a show cause notice to the owner of the property where the Kuwait Cultural Centre is running.
[46] Exhibit A1, T documents page 120
[47] Exhibit A1, T documents page 120
47.Daniel Curtin, a delegate of the ACTPLA, sent a show cause notice dated 19 September 2018 to Mr Tobler as lessee of Block 22.[48] That document referred to the application for a CAO and stated that this notice “relates to the a (sic) controlled activity prescribed under Schedule 2 of the Act, referenced at Schedule 2, Item 1(a) of the Act, which is failing to comply with a provision of a lease; specifically: Using the property for other than residential purposes.”[49] The application for the CAO was attached to the show cause notice, as was a copy of the inspection report dated 29 August 2018.
[48] Exhibit A1, T documents pages 105-107, see also pages 27-29
[49] Exhibit A1, T documents pages 105
48.A separate show cause notice in the same terms was addressed to the occupant of the Kuwait Cultural Centre.[50] That document was served on the occupant of Block 22 and was accepted by the Head of the Kuwait Cultural Office on 20 September 2018.[51]
[50] Exhibit A1, T documents pages 30-32
[51] Exhibit A1, T documents page 99
49.On 19 September 2018, Access Canberra sought the advice of DFAT about how to serve the show cause notice on the Kuwait Cultural Centre. In an email dated 25 September 2018, a protocol officer stated:
Officially, the Cultural Centre does not form part of the Kuwait Embassy (although we are aware form (sic) the little information we have they are certainly affiliated).[52]
[52] Exhibit A1, T documents page 90
50.In response by email that day, Dominic Hides, Manager, Building and Planning Compliance, stated:
It may come down to the fact that the Kuwait Embassy has entered into a rental agreement with Mr Tobler. Mr Tobler would have to cease the rental lease agreement unless Mr Tobler applies to change the crown lease to allow a ‘cultural centre’. [53]
[53] Exhibit A1, T documents page 90
51.By email dated 28 September 2018,[54] Dani Zivak, Building and Planning Compliance, provided Mr and Mrs Errington with a copy of the show cause notice issued for Block 22 and stated that “Access Canberra will endeavour to inform you of any new occurrences that we can comment on which are not protected by way of the regulatory process.” [55]
[54] Exhibit A1, T documents page 89
[55] Exhibit A1, T documents page 89
52.A detailed response to the show cause notice was provided in a letter dated 3 October 2018 from Lexmerca Lawyers on behalf of Mr Tobler.[56] The letter was signed by Jason Wenning (partner) and Elysia Beale (associate). It referred to the Embassy of the State of Kuwait as the “sublessee” of Block 22.
[56] Exhibit A1, T documents pages 37-40
53.The letter submitted that the present use of Block 22 does not fall within the meaning of ‘Cultural Facility’ as defined in the Territory Plan:
the use of the land for the purpose of cultural activities to which the public normally has access, but does not include a shop for art, craft or sculpture dealer.[57]
[57] Exhibit A1, T documents page 37
54.Mr Tobler had informed Lexmerca that the Embassy of the State of Kuwait uses the property in its mission of advancing diplomatic relations between Kuwait and Australia by:
(a)promoting the higher education plans and strategies of the Kuwait government; and
(b)establishing and strengthening its links with Australian educators and institutions of higher learning for the benefit of Kuwait nationals.
55.Lexmerca understood that involved:
(a)using the property as the residence for staff of the Embassy, which properly falls within the meaning of ‘Diplomatic Residence’ as defined in the Territory Plan;
(b)hosting education officials and academics from Kuwait at the property; and
(c)using the property as an office to administer the scholarship programs of the Kuwait government agencies, and providing administrative assistance to Kuwait nationals sent to higher education facilities in Australia.
56.The letter continued:
We are informed that the Embassy has not and does not intend to use the Property to promote the distinct culture of the Kuwaiti people to members of the general community of Australia. All activities occurring on the Property are for advancing the mission of the Embassy primarily for the benefit of the Kuwait government and Kuwaiti citizens in Australia. Access to the Property is also restricted, which is evidenced by the following security measures: fingerprint access restrictions; electronic security door locks; security cameras, alarms and extensive electronic security screen measures.[58]
[58] Exhibit A1, T documents page 38
57.The letter included submissions about the present use of Block 22. In summary:
(a)to the extent that the property is used as a ‘Diplomatic residence’ for the staff of the Embassy, that is a ‘residential use’ for the purpose of the Territory Plan and is not a breach of the Crown lease purpose clause; and
(b)to the extent that part of Block 22 is being used as an office for diplomatic purposes attached to the Embassy of the State of Kuwait, the property falls within the meaning of ‘Chancellery’ as defined in the Territory Plan:
an office attached to an embassy, high commission, consulate, legation or diplomatic residence which is specifically for diplomatic use.[59]
[59] Exhibit A1, T documents page 38
58.The letter referred to the DFAT website profile of “Foreign embassies and consulates in Australia” which lists 5 Callemonda Rise, O’Malley as the address for the Chancery[60] of the Embassy of the State of Kuwait and 16 Bulwarra Close, O’Malley as its Cultural Office.[61] That website describes key personnel who work at Block 22 as diplomatic attachés.
[60] Note that ‘chancery’ is used in some correspondence and other documents interchangeably, or in lieu of ‘chancellery’.
[61] Exhibit A1, T documents page 38
59.The letter acknowledged that the Crown lease purpose clause for Block 22 refers to using “said land for residential purposes only.”[62] Nonetheless, the letter continued:
(a) in August 1989, prior to purchasing the Property from the Territory, the Lessee sought and received confirmation in conference with the relevant Territory Authority that the use of the property for “diplomatic residential purposes” or “a chancellery” was permitted without them being obliged to, or it being necessary to, make application to vary the purpose clause in the then proposed Crown Lease. In particular, representations were made by Mr Peter Griffiths on behalf of the relevant Authority that following approval of submitted building plans, an application to vary the Crown Lease to specifically include as a permitted use “diplomatic residential purposes” or “a chancellery” was not necessary (although the Lessee could make such application if he wished). Refer to file note/letter of Gillespie-Jones & Co of 17 August 1989 annexed hereto marked “D”; and
(b) plans in respect of the building situated on the Property, depicting chancellery offices, within subsequently approved by the relevant Authority on 25 August 1989. Refer to the extract of the building plans annexed hereto marked “E”.[63]
[62] Exhibit A1, T documents page 39
[63] Exhibit A1, T documents page 39
60.By reference to those circumstances, it was submitted that to the extent that part of Lot 22 is being used as a Chancellery, such use has been previously approved by ACT Planning and is permitted.
61.The letter also referred to the O’Malley Precinct Map and Code (effective 14 December 2012) which provides that the uses of “chancellery” and “diplomatic residence” are additional merit track developments for Block 22. The letter continued:
If it is required, to avoid further dispute, the Lessee is willing to make a formal application to vary the Crown Lease to specifically include “chancellery” and “diplomatic residence” provided that any prescribed application fee and lease variation charge shall be waived in the circumstances of the Territory’s prior representations that such use is permitted without the Lessee being obliged to make any such application.[64]
[64] Exhibit A1, T documents page 39
62.The letter also observed that the lessee had applied to the ACTPLA for relief from the provisions of the Crown Lease:
to permit the land (and buildings) to be used as a Chancellery/Embassy. We understand that this will be granted as a matter of course, given the Property is within the MT1 area of the O’Malley precinct map. … Upon a grant of relief, there should be no basis on which to proceed with the issuing of a CAO. [65]
[65] Exhibit A1, T documents page 39
63.The letter stated that if the Territory disagrees with the submissions made in the letter, Lexmerca is instructed to request that the Territory refuse to make the requested CAO on the basis that granting the order would be inappropriate and would be ineffectual in the circumstances given the “practical reality” that the Embassy is protected from eviction due to the operation of Article 22 of the Vienna Convention on Diplomatic Relations.[66]
[66] Exhibit A1, T documents page 40
64.Having made other arguments about why a CAO should not be made, the letter concluded:
our client believes that the applicant’s real grievance behind the CAO application is in relation to vehicles of the Embassy’s patrons parking on the verge strips; if this is the case, we understand that the Embassy has indicated that they are amenable to making suitable alterations, such as erecting signs and otherwise advising its patrons that such areas should not be used for parking, which actions may better resolve the underlying issue at hand rather than the issuing of a CAO.[67]
[67] Exhibit A1, T documents page 40
65.In a separate letter dated 3 October 2018 addressed to the Planning and Delivery Division – Leasing Services of the Environment, Planning and Sustainable Development Directorate, Mr Wenning made a request for relief from the provisions of the Crown lease on Block 22 for Embassy use.[68] The letter, written on behalf of Mr Tobler as the registered proprietor of Block 22, stated:
We note that the Property falls within the MT1 zone of the O’Malley Precinct Map, a copy of which is annexed hereto marked “A”.
The Crown Lessee requests relief from the provisions of the Crown Lease to permit the Property and buildings situated thereupon to be used for Embassy use, which use we understand falls within the definitions of “Diplomatic residence” and “Chancellery” under the Territory Plan. [69]
[68] Exhibit A2
[69] Exhibit A2
66.By email dated 11 October 2018 to Mr Wenning and Ms Beale, in reply to their response to the show cause notice, Louise Crossman, Acting Senior Manager, Building and Planning Compliance, asked for clarification as follows:
· Are you able to confirm the grant of relief from the provisions of the Crown lease to permit the land to be used as a Chancellery/Embassy?
· Are you able to please confirm the dates that the property has been used for the purposes of a Chancellery/Embassy? [70]
[70] Exhibit A1, T documents page 50
67.In a letter dated 15 October 2018 to Mr Wenning at Lexmerca Lawyers,[71] Monica Saad, Manager, Leasing Services, Planning Delivery Division, Environment, Planning and Sustainable Development referred to Mr Wenning’s letter of 3 October 2018 requesting relief from the provisions of the Crown lease for the Embassy of the State of Kuwait to use the premises at Block 22 as “a temporary diplomatic chancery.”[72] The letter continued:
Under Section 269(1) of the Planning and Development Act 2007 the planning and land authority, may on application approve the grant of relief to a Lessee or occupier of Territory land, from compliance, completely or partly, with any provision to which the person’s lease or occupation is subject.
You have asked for relief from the provisions of Clause 1(g) of the Crown lease (Volume 1130 Folio 22) for a period of three (3) years. Pursuant to section 269 of the Planning and Development Act 2007, I hereby grant the relief sought.
Should Block 22 be required to be used by the Embassy of the State of Kuwait for the purpose of a diplomatic chancery after the 15 October 2021 your client will need to reapply for relief from the provisions of the Crown lease. [73]
[71] Exhibit A1, T documents pages 26, 51, 74
[72] Exhibit A1, T documents page 51
[73] Exhibit A1, T documents page 51
68.In his response to Ms Crossman by email dated 15 October 2018,[74] Mr Wenning:
(a)attached a copy of the grant of relief from the provisions of the Crown Lease “to permit the land to be used as a diplomatic Chancellery”; and
(b)advised that he was instructed that the property “has been used as a chancellery since the initial grant of the Crown Lease”. [75]
[74] Exhibit A1, T documents page 70
[75] Exhibit A1, T documents page 70
69.In reply, Ms Crossman noted that the exemption is for use as a diplomatic chancellery and asked Mr Wenning to confirm that his client will not be using the premises as a cultural centre or other facility available to the public.[76] Mr Wenning, in an email dated 16 October 2018, conveyed his instructions that:
the residence has not and will not be used as a ‘Cultural Facility’ as defined in the Territory Plan. The residence is under strict security and members of the public do not have a right to general admission.[77]
[76] Exhibit A1, T documents page 69
[77] Exhibit A1, T documents page 69
70.On 31 October 2018, Daniel Curtin, Delegate of the ACTPLA, wrote to Mrs Errington advising that he had decided, under section 351(2) of the P & D Act, to refuse to make a CAO, as requested by her, against Mr Tobler (the Lessee) and the Kuwait Cultural Centre (the Occupant).[78] Attached to his letter was a notice of decision[79] which included reasons for the decision. Those reasons referred to:
(a)Mrs Errington’s application “alleging that the Lessee and the Occupant had failed to comply with a lease”;
(b)the show cause notice that Mr Curtin issued to the Lessee and the Occupant;
(c)the Lessee’s written reasons explaining why the CAO should not be made;
(d)subsequent clarification and information provided in writing by the Lessee; and
(e)evidence from Ms Saad of “a grant of relief from the provisions of Clause 1(g) of the Crown Lease (Volume 1130 Folio 22) for a period of three years.” [80]
[78] Exhibit A1, T documents page 34
[79] Exhibit A1, T documents pages 11-12, 35-36
[80] Exhibit A1, T documents page 35
71.The notice concluded:
the grant of relief from the provisions of Clause 1(g) of the Crown lease (Volume 1130 Folio 22) means that the grounds on which the Application for a Controlled Activity Order is sought do not currently exist.[81]
[81] Exhibit A1, T documents page 36
72.On 26 November 2018, Mr and Mrs Errington lodged an application for review of that decision. The orders they sought were:
a) that the Decision of the Delegate of the Planning and Land Authority dated 31 October 2018 be set aside; and
b) the Tribunal make a Controlled Activity Order under Schedule 2 1(a) of the Planning and Development Act to bring the Lessee’s(sic) and his property into compliance with the Planning and Development Act 2007.[82]
[82] Application for Review of a Decision dated 26 November 2018 page 3
73.The Erringtons set out the following seven reasons for applying for review of that decision:
1. The Lessee is in contravention of the Crown Lease provisions and is in breach of s247 of Planning and Development Act 2007;
2. The Lessee has not made Application for a ‘grant of relief’ from the provisions of the Crown lease under Section 269 of the Act;
3. The Lessee does not have a registered sublease under Section 308(3)(a) of the Act to permit a ‘diplomatic residence’ or ‘chancellery’ for 16 Bulwarra Close, O’Malley.
4. The Lessee’s occupant unlawfully conducts a large scale business (non-retail commercial use) from 16 Bulwarra Close as the ‘Kuwait Cultural Centre’, over 25 staff occupy the property.
5. The Lessee’s unlawful use of the property as a Cultural Centre is inconsistent with the Territory Plan and is not permitted under the O’Malley Precinct Code.
6. The unlawful activities of the Lessee has brought material detriment to the Applicants and loss of amenity to the neighbourhood and streetscape for other homeowners in Bulwarra Close.
7. The now well documented dangerous traffic conditions for homeowners and pedestrians and illegal parking on verges and over driveways (particularly for battle axe properties causing line of site issues) by cultural centre staff, delivery drivers and visitors to the Cultural Centre has not been alleviated by parking restrictions introduced by Transport and City Services in April 2018. [83]
[83] Application for Review of a Decision dated 26 November 2018 page 2
74.On 10 January 2019, the ACTPLA lodged the strikeout application, seeking a final order:
1. The application filed in this matter by the first and second applicant on 26 November 2018 be dismissed pursuant to section 32(1)(b) of the ACAT Act.
2. In the alternative, pursuant to section 54 of the ACAT Act, the Tribunal proceed to determine the application without holding a hearing and doing so affirm the respondent’s decision under review.
75.Attached to the strikeout application was a statement setting out the ACTPLA’s contentions in support of that application. They were, in summary, that:
(a)clause 1(g) of the Crown Lease for Block 22 relevantly states “to use the said land for residential purposes only”;
(b)the P & D Act provides that failing to comply with a provision of a lease is a controlled activity;
(c)on 22 August 2018, the Erringtons applied for a CAO against the lessee for Block 22 and the occupier of the property;
(d)the complaint was that the property was being used for a purpose other than for residential use and, for that reason, the use of the property was contrary to the terms of the Crown lease and thus unlawful;
(e)section 269(1) of the P & D Act provides that the ACTPLA may approve the grant of relief to a lessee or occupier of Territory land from compliance with any provision to which the person’s lease or occupation is subject;
(f)if the ACTPLA gives such an approval, the liability of the lessee or occupier under the lease or in relation to their occupation is discharged for the period approved to the extent of the grant of relief approved;
(g)on 15 October 2018, the ACTPLA made a decision under section 269(1) of the P & D Act to grant the Crown lessee of Block 22 relief from the provisions of clause 1(g) of the Crown Lease for a period of three years;
(h)as a grant of relief has been granted, there is no controlled activity of the type complained about on Block 22 and therefore there is no ground for making a CAO as part of this review.
76.On 31 January 2019, Laleshni Chandra, a solicitor with the ACT Government Solicitor, wrote to the Erringtons stating, among other things, that because the Erringtons’ application for a CAO “only alleged breach of the Crown lease” and the respondent’s decision on their application was “only in respect of that issue”, the Tribunal has no power to deal with any other issues, such as parking or traffic, as those matters were not raised in the application for a CAO nor were they the subject of the decision under review.[84]
[84] Exhibit A3, pages 3-4
77.Ms Chandra advised the Erringtons that the respondent intended to amend its interim application “to add an additional ground to submit to the Tribunal that the Tribunal does not have jurisdiction to make a controlled activity order in relation to the parking and traffic issues.” [85] She invited them to respond with suggested terms for the Tribunal’s consideration if they assert otherwise.
Other circumstances
[85] Exhibit A3, pages 3-4
78.In addition to the events described in the preceding timeline, is appropriate to set out information concerning three other matters raised by the parties to the strikeout application:
(a)Parking and related issues on and near to Block 22.
(b)Separate proceedings in the Tribunal in relation to the use of Block 20.
(c)Whether Ms Saad had authority to issue the grant of relief.
Parking and related issues
79.There is photographic and other evidence before the Tribunal demonstrating that on dates between June and December 2017 and subsequently many vehicles have been observed parked on unpaved areas of Block 22 and on the nature strip between Block 22 and Bulwarra Close, including on places proximate to that part of the concrete aggregate driveway from Bulwarra Close to Block 21.[86]
[86] See photographs in Exhibits A1 pages 117, 119 (aerial photograph of Block 22 and neighbouring Blocks), A3 pages 6 and 7, A5, R2 and R4
80.It is clear from documentary material that in recent years the Erringtons (as well as other neighbours in Bulwarra Close) have expressed their concerns that the presence of motor vehicles on Block 22 and the adjoining nature strip and along Bulwarra Close near to Block 22 have caused inconvenience to those neighbours (exacerbated by the absence of foot paths) as well as a loss of amenity and streetscape.
81.On 23 October 2017, Mr Errington wrote to the Ambassador at the Embassy of Kuwait to express his “deep concern at the conduct of workers and visitors to your Cultural Centre at 16 Bulwarra Close, O’Malley.”[87] He continued:
Workers and visitors constantly parked illegally on the nature strip adjacent to my property which impinges on my uninterrupted access. It is also dangerous as it hinders the view of traffic conditions as I enter Bulwarra Close from my driveway.[88]
[87] Exhibit R1
[88] Exhibit R1
82.Mr Errington also referred to “the rubbish that is discarded from vehicles attending your Cultural Centre” and described the collection rubbish bins as “another ongoing problem.” He concluded, “I look forward to your personal attention to correct these issues as a matter of priority.”[89] According to Mr Errington, he has not received a reply to his letter.
[89] Exhibit R1
83.As noted earlier, the solicitors for Mr Tobler wrote a letter dated 3 October 2018 in response to the show cause notice that:
(a)Mr Tobler believes that the real grievance behind the CAO application is in relation to vehicles of the Embassy’s patrons parking on the verge strip; and
(b)they understood that the Embassy had indicated that they are amenable to making suitable alterations (such as erecting signs and otherwise advising its patrons that such areas should not be used for parking) which may better resolve the underlying issue rather than the making of a CAO.
84.As I understand it, the ACTPLA submitted, in summary, that:
(a)the true vice, mischief, problem or concern which the Erringtons seek to have dealt with is the number of vehicles parked on and near Block 22, and the associated traffic and safety issues;
(b)that issue was not the subject of the application for a CAO;
(c)accordingly, the matter could not and was not dealt with by the ACTPLA when considering the application for a CAO;
(d)the matter was not properly the subject of the Erringtons’ application for review to the Tribunal;
(e)for that and other reasons, the application for review should be struck out;
(f)the Erringtons could make a separate application for appropriate orders to deal with the parking and traffic issues.
85.It is appropriate to consider these points more fully, particularly in light of the Erringtons’ response to them.
86.In written submissions about the strikeout application, the ACTPLA contended that the use of Block 22 for a “diplomatic chancery” is not the true mischief here. In its submission, that is a permitted and lawful use within the O’Malley Precinct Code as is the entitlement under clause 1(g) the Crown lease to use the premises as a “diplomatic residence.” Rather, the “true mischief” is the conduct of a lawful use on the site in a manner that arguably contravenes the parking and perhaps other planning laws of the ACT. In particular, the submission referred to Rule 33 and Criterion 33 of the Single Dwelling Housing Development Code concerning car parking spaces on Block 22, and to related provisions in the Parking and Vehicular Access General Code.[90]
[90] The submission referred to the notice of decision of 21 December 2018 on DA 201834682 as regards Block 20 Section 16 O’Malley
87.In support of its submission that the true mischief is parking and related amenity issues, the ACTPLA referred to:
(a)the account of the discussion between the ACTPLA officer and Mrs Errington on 22 August 2018 which referred to “20 vehicles parked on the property - all of who are associated with the commercial offices - and overflow parking … approximately 10 vehicles in the street;”[91]
(b)Mrs Errington’s email of 29 August 2018 to Mr Gaze, which referred to “commercial activity” on the site which “gives rise to the inordinate number of cars parked on the grounds of 16 Bulwarra Close, and adds to the traffic woes in the street” and “represents an existential traffic safety hazard caused by significantly reduced lines of site for vehicles on, or entering, Bulwarra Close;”
(c)paragraph 7 of the reasons for applying for review lodged by the Erringtons on 26 November 2018 which referred to “The now well documented dangerous traffic conditions for homeowners and pedestrians and illegal parking on verges and over driveways (particularly for battle axe properties causing line of site issues) by cultural centre staff delivery drivers and visitors to the Cultural Centre has not been eliviated [sic] by parking restrictions introduced by Transport and City Services in April 2018;”
(d)the propositions in the Erringtons’ document dated 11 January 2019 in response to the ACTPLA’s strikeout application; and
(e)the transcript of reasons for decision on 30 November 2018 by a differently constituted tribunal in relation to Block 20.
[91] Exhibit A1, T documents page 140
88.As to the last-mentioned point, I note that in his oral reasons for decision in relation to separate proceedings concerning Block 20, Senior Member Meagher SC stated:
A number of residents of the street have provided statements as to the impact of this use and their statements have been admitted without challenge. Without setting out all the problems that it caused it is said that on a narrow suburban street there are now a large number of cars parked in it. It leaves little room for cars to pass each other. The photos in the applicants’ documents illustrate this as did the view that we had before the matter started. The parking blocks sight lines and is dangerous. Excess vehicles driven by UAE staff are parking at the front of a Kuwaiti cultural office at number 16. [92]
[92] Transcript of proceedings in AT 80/2018 page 235 lines 12-19
89.The ACTPLA submitted that the application for the CAO did not refer to parking and traffic issues and hence reason 7 on the Erringtons’ application for review could not be considered.
90.In the course of his oral submissions, counsel for the ACTPLA suggested that if the Tribunal were to strike out the Erringtons’ application, the matter could “take its course as appropriate thereafter.”[93] When pressed by the Tribunal, counsel for the ACTPLA suggested that the Erringtons could make a fresh application for a CAO to prevent Mr Tobler and his tenant from using the property in a way that would amount to a breach of the parking related laws in the Territory Plan.[94]
[93] Transcript of proceedings, 5 February 2019, pages 84 lines 41-42
[94] Transcript of proceedings, 5 February 2019, pages 84-85
91.However, Mr Errington, in the course of his oral submissions, made it clear that, although real, the parking and traffic matters are symptomatic of the failure to comply with the P & D Act. He said, for example:
the traffic and parking issues are … real concerns but are symptoms of the deeper issues of failures to comply with the Planning and Development Act 2007. These systemic failures to respect the Territory Plan and to enforce compliance with the Planning and Development Act 2007 is the true issue in this matter. These procedural missteps have provided advantage to one Crown lessee over others. They have caused material detriment and loss of amenity. They have condoned overdevelopment and have resulted in us average citizens, trying to rectify a fault of the Authority now being before the tribunal to try and sort this mess out.[95]
[95] Transcript of proceedings, 7 February 2019, page 137 lines 29-38
92.Mr Errington said that his letter to the Ambassador for Kuwait on 23 October 2017[96] was an “attempt to try and fix up all the problems manifesting in the street.”[97] That document, and others in relation to similar issues at 12 Bulwarra Close, “should demonstrate … where the issues began in terms of the evolution of this issue,” that is, “the issues of traffic, parking and rubbish and various other symptomatic issues.”[98] He described how, “as things evolved and were ignored and we got smarter about the issues,”[99] they reached the stage of concentrating on the breach of the Crown lease and other aspects included in the Erringtons’ submissions. In summary, the concerns which gave rise to these proceedings began with those problems but had since “evolved.”[100]
[96] Exhibit R1
[97] Transcript of proceedings, 7 February 2019, page 119 lines 28
[98] Transcript of proceedings, 7 February 2019, page 119 lines 37
[99] Transcript of proceedings, 7 February 2019, page 119 lines 39-40
[100] Transcript of proceedings, 7 February 2019, page 119 line 42
93.The evidence before the Tribunal included photographs of vehicles parked on or near Block 22, some of them near the concrete aggregate driveway to the Erringtons property and impeding the view to and from that driveway.[101] Mr Errington gave oral evidence about the extent of inconvenience caused to local residents as a consequence of the numbers and locations of parked vehicles.[102] However, Mr Errington described the traffic and parking issues arising from illegally parked vehicles and some other vehicles parked on the street as “symptoms of the deeper cause.” [103] He acknowledged that the ACT Government had installed traffic control measures and parking restrictions in 2018. He contended, however, they would not be necessary had Block 22 not been used for non-retail commercial use.[104] To the extent that counsel for ACTPLA suggested that the Erringtons and their neighbours take action in relation to parking matters, they had already done so “and nothing has happened, and it has led to this forum.”[105]
[101] Exhibits R2 and A5
[102] Transcript of proceedings, 7 February 2019, pages 120-132
[103] Transcript of proceedings, 7 February 2019, page 121 line 29
[104] Transcript of proceedings, 7 February 2019, page 130
[105] Transcript of proceedings, 7 February 2019, page 160 lines 14-15
94.In Mr Errington’s submission, to make this case about parking is “ridiculous” when it is about the breach of various codes.[106]
[106] Transcript of proceedings, 5 February 2019, page 74 line 14
95.The Erringtons’ written submissions dated 5 February 2019 sought a Tribunal direction to the ACTPLA to issue a CAO to the lessee “for breaches of the Crown Lease and Section 247 of the Act,” and set out the arguments in support of that request.
96.Further, their written submissions noted that their CAO application made no mention of parking and traffic issues. Therefore, they submitted, the ACTPLA’s proposed amendment to its interim application dated 10 January 2019 on the additional ground that the Tribunal does not have jurisdiction to make a CAO in relation to the parking and traffic issues is irrelevant.
Tribunal proceedings in relation to Block 20
97.Both parties referred to aspects of proceedings before the Tribunal in relation to Block 20 (Matter AT 80/2018). Those proceedings arose in similar circumstances to the present case, at least to the extent that they involved actions by neighbours (including Mr and Mrs Errington) who are concerned about the use of Block 20 by the United Arab Emirates and the implications of that use for traffic and parking and general neighbourhood amenity.
98.On 26 March 2018, Mrs Errington applied for a CAO in relation to Block 20.[107] In the application she ticked three boxes identifying the activities in respect of which she wished a CAO to be made, namely failure to comply with a lease, undertaking a development for which development approval is required, and having a building or structure that was constructed without approval required by Chapter 7 of the P&D Act. Mrs Errington sought orders that:
1. the Lessee cease breaching the Crown Lease at 12 Bulwarra Close, O’Malley;
2. the Lessee remove the unapproved structures (front fence, gate and security guard post); and
3. the ACT Government order that 12 Bulwarra Close, O’Malley is no longer used as commercial office accommodation.[108]
[107] Exhibit A3 pages 20-24
[108] Exhibit A3 pages 23
99.On 15 October 2018 the lessee, Mr Maleganeas, lodged a development application in the merit track. By decision dated 21 December 2018, a delegate of the ACTPLA refused the proposal for a variation to the Crown lease purpose clause to permit diplomatic residence and/or chancellery.[109] According to the reasons for the decision, the application was inconsistent with the Territory Plan and the relevant codes being the Residential Zones Development Code, the O’Malley Precinct Map and Code, the Single Dwelling Housing Development Code, the Parking and Vehicular Access General Code and the Lease Variation General Code.
[109] Exhibit A3 pages 10-19
100.The legal issues in that case were different from the issues in the present proceedings. Consequently, those proceedings have limited application in the present case other than to illustrate that parking and associated issues (described earlier in these reasons for decision) were raised in relation to the other block adjoining Block 21 and near Block 22.
The extent of Ms Saad’s delegated authority
101.In their written submissions dated 5 February 2019 and during the hearing, the Erringtons questioned the delegated authority under which Ms Saad issued the grant of relief.[110] However, following the provision by the ACTPLA of additional material to them, the Erringtons advised the Tribunal that they did not contest Ms Saad’s authority as the delegate.[111]
The ACTPLA’s submissions
[110] See Transcript of proceedings, 5 February 2019, pages 94-97
[111] Transcript of proceedings, 7 February 2019, page 145 line 44
102.The key point in the submissions made by the ACTPLA was that Ms Saad’s letter dated 15 October 2018 granted relief against compliance with clause 1(g) and 1(h) of the Crown lease for Block 22. Relief having been granted there was no breach of the Crown lease of the type alleged in the Erringtons’ application for the CAO. Hence there was no basis on which to challenge the decision to refuse to grant the CAO, and the Erringtons’ application to the Tribunal lacks substance and should be dismissed under section 32(1)(b) of the ACAT Act.
103.The ACTPLA acknowledged that the grant of relief did not, in terms, address clause 1(h) of the Crown lease. It also acknowledged that, on one view, that omission would entitle the Tribunal to seek to frame an order along the lines sought in the application for a CAO and restrain Mr Tobler (whether personally or by his tenant) from using the land or a building on the land as a “temporary diplomatic chancery.”
104.However, the ACTPLA submitted, there are cogent reasons why the Tribunal does not need to make a ruling on the proper ambit of the grant of relief letter and, in any event, would not adopt an interpretation of that letter which would lead to the framing of an order along the lines sought by the Erringtons. The reasons advanced by the ACTPLA were that:
(a)the proper construction of the true intent and legal effect of the letter of relief would be better dealt with at a final hearing and with the benefit of submissions from the recipient of the grant of relief, Mr Tobler;
(b)whatever the proper construction of that letter, a plain reading of the exchange of letters (being the letter of 3 October 2018 from Lexmerca and the letter of relief dated 15 October 2018) evidences a plain intent that the State of Kuwait be entitled to use the “premises” as a diplomatic chancery;
(c)any alleged omission in terms of not mentioning clause 1(h) of the Crown lease was, on a fair reading of that correspondence, clearly an oversight and was in fact an oversight;
(d)the use of the premises as a “diplomatic chancery” is not the true mischief here as it is a permitted and lawful use within the O’Malley Precinct Code. The Kuwaiti Embassy is already entitled by the terms of the Crown lease to use the premises as a “diplomatic residence” (see clause 1(g) of the Crown lease);
(e)the true mischief identified here is the conduct of a lawful use on the site in a manner that arguably contravenes the parking and perhaps other planning laws of the Territory;
(f)an order preventing Mr Tobler and his tenant from using the land as a “chancery” would amount to an unnecessary interference in property rights when that use is expressly sanctioned by the terms of the O’Malley Precinct Code; and
(g)the proper extent of any restraint[112] or “controlled activity” order would be merely to prevent Mr Tobler and his tenant from using the property in such manner as would amount to a breach of the parking and related laws in the Territory Plan, with a properly drafted order to be worked up in the context of input from expert assessing officers within Access Canberra and, as necessary and appropriate, a development application from Mr Tobler supported by appropriate expert evidence.
[112] See Buckley v Tutty (1971) 125 CLR 353 page 376
105.Counsel for the ACTPLA made oral submissions in response to the Erringtons’ submission that the sublease (if any) of the Property was in breach of the requirement in section 308 of the P & D Act that a Crown lessee must not sublease any land under the a Crown lease without the ACTPLA’s prior written approval. Counsel referred to sections 306, 307, 308 and 312C of the P & D Act and the explanatory statement for the 2015 amendments to that Act.[113] He submitted, in summary, that the Erringtons’ submission was based on an incorrect reading of section 308. While acknowledging that the drafting of that section could have led them to read a requirement that the present sublease (if any) of the Property required the approval of the ACTPLA, he said that to read section 308 in that way would “offend sound conveyancing practice in the Territory”[114] and “interfere with normal conveyancing practice in the Territory.”[115] He submitted that a careful reading of sections 306, 307, 308 and 312C shows that section 308 is aimed at preventing informal subdivisions of land without express approval. That is confirmed, he submitted, by the heading to section 308 “Power of Crown lessee to sublet part of land.”[116]
[113] The Planning and Development (University of Canberra and Other Leases) Legislation Amendment Bill 2015
[114] Transcript of proceedings 7 February 2019 page 148 line 5
[115] Transcript of proceedings 7 February 2019 page 151 line 4
[116] Section 126(2) of the Legislation Act 2001 provides that a heading to a section is part of the Act if the Act was enacted after 1 January 2000
106.It was also submitted for the ACTPLA that, in summary:
(a)the Tribunal would not be persuaded to make a CAO under section 351(2)(b) of the P & D Act because Mr Tobler has not been joined and has not chosen to become a party to the proceedings, any potential order that is “not more burdensome” than the orders sought (for example, by a restriction on the use of the property in a manner that would not amount to a breach of the parking and related planning laws) could constitute a significant impairment of Mr Tobler’s lawful property rights in terms of his use of the land, and Mr Tobler has not been given any notice of a proposed less burdensome order; and
(b)to do justice between the parties affected by any decision in this litigation and the public interest that the ACTPLA is obliged to protect, the Tribunal would not be persuaded to attempt to “mend” any procedural defects by the device of a less burdensome and different kind of order under section 351(2)(b) of the P & D Act.
107.Accordingly, the ACTPLA submitted the correct or preferable decision is to grant summary relief sought by the ACTPLA and for the matter to take its course as appropriate thereafter.
The Erringtons’ submissions
108.The Erringtons submitted that the use of Block 22 by the Kuwait Cultural Centre is a ‘development’ under section 247 of the P & D Act and requires development approval. In summary they contended that:
(a)the Crown lessee has sublet the residential dwelling on Block 22 to the Kuwait Cultural Centre;
(b)in doing so, he changed the use of Block 22 or a building on it from residential to non-retail commercial (although the precise use of the property has not been clearly articulated);
(c)for the purpose of the P & D Act, the meaning of ‘use’ land or a building or structure on the land includes beginning a new use of the land, building or structure, or changing a use of the land, building or structure;[117]
(d)the meaning of ‘development’ in relation to land includes using the land, or a building or structure on the land;[118]
(e)under section 247(1) of the P & D Act, Territory land or a building or structure on the land, in relation to which a lease has been granted, must not be used for a purpose other than a purpose authorised by the lease;[119]
(f)beginning a use of the land, or a building or structure on the land, is a development that may require development approval;[120]
(g)by subletting Block 22 for the Kuwait Cultural Centre, the Lessee (Mr Tobler) has effectively circumvented the proper scrutiny of a merit track assessable development application and other requirements in relation to the change of use of Block 22.
[117] P & D Act section 8(a), (c)
[118] P & D Act section 7(1)(d)
[119] P & D Act section 247(1)
[120] See the note to P & D Act section 7(1)
109.In their submission, Mr Tobler broke the law in 1989 when he failed to seek changes to the purpose of the Crown lease as he was directed to do. The relevant authority failed to pursue compliance with the law, and the use of the property has expanded from its originally envisaged construction and without approvals.[121]
[121] Transcript of proceedings, 5 February 2019, pages 105-106 and 7 February 2019, page 137
110.As noted earlier, the Erringtons also submitted that the Crown lessee was in breach of section 308 of the P & D Act which provides:
(1) A Crown lessee must not sublease any land under a Crown lease without the planning and land authority’s prior written approval.
(2) …
(3) The planning and land authority must not approve a sublease of land-
(a)other than in accordance with criteria prescribed by regulation …
111.The Erringtons also referred to Regulation 20 of the Planning and Development Regulations 2008 which sets out the criteria for giving approval of a sublease under section 308(3) of the P & D Act. That regulation provides, among other things, that a sublease ‘must be for a use authorised by the lease’ and, if the sublease authorises non-residential use of the land, it must state the maximum total gross floor area of buildings and structures permitted for non-residential use on the land.
112.In this case, the Erringtons contended, there is no evidence that the sublease exists and, if it does exist, the ACTPLA did not give its prior written approval to it.
113.The Erringtons disputed the effectiveness of the purported grant of relief dated 15 October 2018. In their submission:
(a)the grant of relief failed to address all relevant provisions of the Crown lease because it only provide relief from clause 1(g) and not clause 1(h);
(b)the grant of relief was provided to a third party rather than the Crown lessee, Mr Tobler;[122]
(c)accordingly, the grant of relief is defective and the lessee is still in breach of clause 1(h).
[122] It should be noted, however, that Ms Saad’s letter of relief was written to Mr Tobler’s lawyers in response to their letter on behalf of the Crown lessee requesting relief from provisions of the Crown lease. The letter of relief stated that if Block 22 is required to be used by the Embassy of the State of Kuwait for the purpose of a diplomatic chancery after the three years have expired “your client” will need to reapply for relief from the provisions of the Crown lease. See Exhibit A1, T documents page 74
114.They submitted that the grant of relief was given contrary to section 50 of the P & D Act which provides: [123]
The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the territory plan.
[123] Transcript of proceedings, 5 February 2019, pages 94, 104 and 7 February 2019, page 137
115.The Erringtons’ written submissions also included, in summary, statements that:
(a)the Crown lessee has not lodged a development application in relation to the change of use of the Property despite stating that this would be done this in the show cause letter provided by his solicitors dated 3 October 2018;[124]
(b)the Kuwait Cultural Centre is not officially recognised by the DFAT as part of the Kuwait Embassy and is not part of the accredited Kuwait diplomatic mission;[125]
(c)the Kuwait Cultural Centre employs over 20 office staff not including domestic/cleaners/cooks and drivers; and
(d)controlled activities are occurring on the Property.
[124] Exhibit A1, T documents page 76-79
[125] see Exhibit A1, T documents page 90
116.The Erringtons also submitted that, in deciding whether to exercise its discretion to strike out their application for review, the Tribunal should consider natural justice and procedural fairness. They submitted that it would be grossly unfair to them to strike out the application and would deny them the opportunity to argue their case before the Tribunal. During the hearing, they referred to what they saw as the unfairness of aspects of the strikeout proceeding and indicated that if the matter went to a full hearing they would provide evidence, including witness statements, in support of some of their assertions.
117.Finally, they contended (including by reference to the proceedings in relation to Block 20 (AT 80/2018)) that many homeowners, residents and lawful users of Bulwarra Close have been and continue to be affected and put at risk by the expansion of non-retail commercial activities in Bulwarra Close. There is, they said, a strong public interest in allowing the Tribunal to consider in detail the merits of their application.
118.The Erringtons submitted that:
(a)the strikeout application be dismissed and their application for review go to a full hearing;
(b)the strikeout application be dismissed and the decision of the ACTPLA to refuse the CAO be set aside; or
(c)the Tribunal make a CAO.[126]
Consideration
[126] Transcript of proceedings 7 February 2019 page 139
119.As noted earlier in these reasons, the jurisdiction to terminate an action summarily is to be employed sparingly or with caution (even “exceptional caution”). The ACTPLA faces a very high threshold in seeking to have the Erringtons’ application dismissed at this stage. The criteria to be applied, or factors to be considered, when courts are exercising this power are set out in the judgments quoted and cited earlier. They include the proposition that an application must be determined on the substance, not the mere form or expression, of the claim.
120.It is also worth noting that the Erringtons’ application for review of a reviewable decision under the P & D Act[127] is an application of the type which the Tribunal can deal with under the ACAT Act. The Erringtons have invoked the jurisdiction of the Tribunal. On that basis, the high bar to be cleared before proceedings in a court can be terminated is appropriately set for such proceedings as these.
[127] P & D Act Schedule 1 item 43
121.The limited evidence before this Tribunal would support findings that:
(a)the Crown lease for Block 22 provides that the land is to be used for residential purposes only and the building on the land will be used only as a single unit private dwelling place;
(b)the purpose clause of the Crown lease for Block 22 has not been varied since the Crown lease was issued in 1989;
(c)the Property is being used by the Embassy of the State of Kuwait as the Kuwait Cultural Office;
(d)although it is not clear precisely what activities are carried out on the Property, they are not exclusively residential and the building is not used only as a single unit private dwelling place; and
(e)the use of the Property (whether or not under a sublease or other formal rental agreement) is not permitted under the Crown lease.
122.Whether there is other evidence relevant to these matters, and whether that evidence would lead to any different findings of fact, cannot be ascertained until a full hearing of the Erringtons’ application.
123.It is clear that the letter from Ms Saad dated 15 October 2018:
(a)was expressed to be in response to the request for relief from the provisions of clause 1(g) of the Crown lease of Block 22 for a period of three years;
(b)granted “the relief sought”; and
(c)stated that if Block 22 is required to be used by the Embassy of the State of Kuwait “for the purpose of a diplomatic chancery” after 15 October 2021, there would need to be another application “for relief from the provisions of the Crown lease.”[128]
[128] Exhibit A1, T documents page 51
124.As noted earlier, the ACTPLA contended that:
(a)a plain reading of the exchange of letters (being the letter of 3 October 2018 from Lexmerca and the letter of relief dated 15 October 2018) evidences a plain intent that the State of Kuwait be entitled to use the “premises” as a diplomatic chancery; and
(b)any alleged omission in terms of not mentioning clause (h) of the Crown lease was, on a fair reading of that correspondence, clearly an oversight and was in fact an oversight.
125.In relation to the second limb of that submission, it is sufficient to observe that there was no evidence of such oversight or inadvertence. Counsel was simply conveying to the Tribunal what he was instructed to submit. Had such evidence been provided to the Tribunal, it is doubtful that the evidence would have advanced the ACTPLA’s case. The issue here is not what might have been in the letter if there had not been an administrative oversight, but what was in the letter. This was no ordinary correspondence. It was intended to have the legal effect of granting relief from a clear requirement of the Crown lease which the lessee had failed to meet. In the absence of relief granted properly under section 269(1) of the P & D Act, the lessee’s obligation under the Crown lease remained.
126.Consequently, the real issue is whether the letter of 15 October 2018 should be read as effectively also relieving the Crown lessee of his obligation to comply with clause 1(h) of the Crown lease.
127.The letter requesting relief did not specify a particular clause or clauses of the Crown lease. Rather it requested relief from “the provisions of the Crown Lease to permit the Property and buildings situated thereupon to be used for Embassy use.” Expressed in those terms, the request could be understood as applying, in substance, to the clauses in the Crown Lease referring to the use of the land for residential purposes only (clause 1(g)) and the use of the building erected on the land only as a single unit private dwelling house (clause 1(h)). The letter of relief characterised the application as being for relief from the provisions of clause 1(g) of the Crown lease and then purported to “grant the relief sought.”[129] In its terms, the letter of relief arguably narrowed the scope of the relief sought and hence of the relief granted. It is not self-evidently obvious (but might be arguable) that the letter of 15 October 2018 granted the relief to the extent requested in the letter of 3 October 2018.
[129] Exhibit A1, T documents page 13-16
128.The detailed recital of the evidence earlier in these reasons, and the qualified basis on which some of the ACTPLA’s submissions were put, demonstrate that on the evidence currently before the Tribunal:
(a)there is no or insufficient evidence before the Tribunal as presently constituted to support, let alone compel, firm findings of fact on issues such as the use to which Block 22 is put; and
(b)because an argument might be made that Ms Saad’s letter of 15 October 2018 did not operate to grant relied in relation to clause 1(h) of the Crown lease, there is a real question about the extent of the relief granted by that letter, and, in particular, whether it relieved the Crown lessee of his obligation to comply with clause 1(h).
129.For those reasons, and adopting the expressions used in some of the judgments quoted earlier, this Tribunal cannot be satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.[130] It will be apparent from the material quoted and summarised above that the Erringtons’ application cannot be described as “so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, or “so manifestly faulty that it does not admit of argument”.[131]
[130] See General Steel (1964) 112 CLR 125 page 129
[131] See General Steel (1964) 112 CLR 125 page 129
130.Also, on the material and submissions currently before the Tribunal, I am not satisfied that the real mischief or issue in this case is parking and related amenity issues. Consequently, I am not persuaded that the correct or preferable decision is to grant summary relief sought by the ACTPLA and for the matter to take its course as appropriate thereafter.
131.This is a case where there is a real risk that, under the guise of achieving expeditious finality, the Erringtons would be improperly deprived of their opportunity to have their case heard by the Tribunal. That is not to say, and it is not meant to imply, that the Erringtons will necessarily be successful at a full hearing. It is a conclusion only about whether the grounds for dismissal of the application under section 32(1)(b) of the ACAT Act have been made out.
132.The same reasoning applies to refuse the alternative form of order sought by the ACTPLA. The Tribunal as presently constituted is not in a position to proceed pursuant to section 54 of the ACAT Act to determine the application without holding a hearing and to affirm the ACTPLA’s decision under review.
133.Counsel’s submission that the Tribunal should not make orders of the type sought by the Erringtons because such orders would be contrary to the interests of the Crown lessee, and the public, applies equally to support a full hearing of the Erringtons’ application for review of the ACTPLA decision dated 15 October 2018.
134.Having reached the conclusions set out above about what I consider to be the key issues in the strikeout application, it is not necessary in these proceedings to deal with the other legal arguments advanced by the ACTPLA.
Conclusion
135.For the reasons set out above, I dismiss the application by the ACTPLA to have the Erringtons’ application for review of the ACTPLA decision to refuse to make a CAO in relation to Block 20 dismissed under section 32(1)(b) of the ACAT Act.
136.Consequently, directions will be made for the hearing of the Erringtons’ application for review of that ACTPLA decision.
137.I note that two persons directly affected by this decision, namely:
(a)the Crown lessee (Mr Tobler); and
(b)the legal entity who uses the premises at the Property as the Kuwait Cultural Office,
are not parties to these proceedings.
138.Counsel for the ACTPLA suggested that the Tribunal direct that Mr Tobler be made a party. At this stage, the Tribunal invites either or both of them to seek to be joined as a party or parties before the hearing of the Erringtons’ application, so that their interests are properly before the Tribunal and the Tribunal can have the benefit of evidence and submissions for each of them. To assist them to decide what course of action to take, I direct the Registry to send a copy of these reasons for decision to Mr Tobler and the head of the Kuwait Cultural Office.
………………………………..
President G Neate AM
HEARING DETAILS
FILE NUMBER:
AT 104/2018
PARTIES, APPLICANT:
Debbie Errington
Ian Errington
PARTIES, RESPONDENT:
ACT Planning and Land Authority
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Mr RP Clynes
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
President G Neate AM
DATES OF HEARING:
5 February 2019
7 February 2019
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