Forman and York v ACT Planning and Land Authority and Evans and Evans
[2013] ACTSC 167
•23 August 2013
FORMAN AND YORK V ACT PLANNING AND LAND AUTHORITY AND EVANS AND EVANS
[2013] ACTSC 167 (23 August 2013)
ADMINISTRATIVE LAW – application for judicial review – Planning and Development Act 2007 (ACT) – application to review decision of ACTPLA – jurisdictional error – jurisdictional fact – error of law – decision to be made.
LOCAL GOVERNMENT – town planning – interface between buildings in multi-unit development – solar access – meaning of rule in Multi-Unit Code.
LOCAL GOVERNMENT – town planning – amended development application – changed development approval – relationship with original approval.
PROCEDURE – costs – costs of amended application.
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A
Planning and Development Act 2007 (ACT), ss 7, 46, 48, 50, 51, 54, 55, 113, 119, 120, 199, 156, 162, 170, 197, 198, Div 7.2.3
Land (Planning and Environment) Act 1991 (ACT), s 8
Territory Plan 2008 (ACT), 3.3
Argos Pty Ltd v Corbell (2012) 7 ACTLR 15
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority (ACT) (2008) 2 ACTLR 44
Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (2007) 162 ACTR 1
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Craig v South Australia (1995) 184 CLR 163
Dornan v Riordan (1990) 24 FCR 564
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Faull v Commissioner for Social Housing [2013] ACTSC 121
Forman v ACT Planning and Land Authority [2010] ACAT 54
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Lockwood v Commonwealth (1954) 90 CLR 177
Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Waterford v Commonwealth (1987) 163 CLR 54
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707
No. SC 897 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 23 August 2013
IN THE SUPREME COURT OF THE )
) No. SC 897 of 2008
AUSTRALIAN CAPITAL TERRITORY )
DAVID JOHN FRANCIS FORMAN AND SARA WYNIFRED YORK
Plaintiffs
v
AUSTRALIAN CAPITAL TERRITORY PLANNING AND LAND AUTHORITY
First Defendant
AND
SELWYN DAVID EVANS AND DOROTHY EVANS
Second Defendants
ORDER
Judge: Refshauge J
Date: 23 August 2013
Place: Canberra
THE COURT ORDERS THAT:
The decision of the First Defendant, the Australian Capital Territory Planning and Land Authority, made on 25 September 2008 be set aside.
So far as is necessary, the decision of the First Defendant made on 14 May 2009 be set aside.
The application of the Second Defendants, Selwyn Davis Evans and Dorothy Evans, as amended, be remitted to the First Defendant to be decided in accordance with law.
The First Defendant pay the costs of the Plaintiffs, David John Francis Forman and Sara Wynifred York, such costs to include the costs of amending the Originating Application for which leave was given on 24 June 2010, such costs to include costs thrown away as a result of the amendment, but not to include the costs of obtaining the survey from John W Foxlee & Associates.
As planning decisions affect the amenity of where people live, and sometimes work, and on occasion do so in fundamental or significant ways, they are often particularly fraught. They usually involve a degree of subjective assessment, with which people will disagree, while there is often no capacity to come to a decision with which even reasonable people will not disagree.
Perhaps because of these and other challenges that planning decisions raise, the legislation under which such decisions are made can be complex and is not always easy to construe or apply.
These proceedings involve a planning decision in a residential area of Kingston, ACT, where the plaintiffs and the second defendants have residential units. The units are in a group of four two-storey units at Block 7 Section 24 Kingston, collectively known as Swan’s Place.
On 20 July 2008, the second defendants, Air Marshall Selwyn David and Mrs Dorothy Evans, as lessees of Unit 3 in Swan’s Place, applied under s 113 of the Planning and Development Act 2007 (ACT) (the Planning Act) for approval to make what was described as minor additions to the dining and family rooms of the ground floor of their unit and to the master bedroom on the first floor level. That Development Application was made to the first defendant, ACT Planning and Land Authority, to which I shall refer to as ACTPLA.
On 10 August 2008, David John Francis Forman (Mr Forman) and Sara Wynifred York (Ms York), the plaintiffs, who are lessees of the adjacent Unit 4 in Swan’s Place, wrote to ACTPLA, objecting to the Development Application on the grounds of loss of privacy, solar access and encroachment on their land.
Nevertheless, ACTPLA approved the Development Application on 25 September 2008. An earlier development application to install a lift in Unit 3, also opposed by Mr Forman and Ms York, was approved after an appeal to the ACT Civil and Administrative Tribunal: Forman v ACT Planning and Land Authority [2010] ACAT 54.
On 24 October 2008, the plaintiffs commenced these proceedings seeking judicial review of the decision to approve the Development Application on the grounds that ACTPLA took into account irrelevant considerations and failed to take into account relevant considerations, that the decision involved an error of law and that the decision was so unreasonable that no reasonable person could have so exercised the power.
THE PROCEEDINGS
The plaintiffs’ application for judicial review was accompanied by an affidavit of the first-named plaintiff, Mr Forman, to which was exhibited a copy of the registered Units Plan and various correspondence, including email communications, as well as ACTPLA’s notification of the decision to approve the Development Application. It was also supported by an affidavit of the second-named plaintiff, Ms York.
On 9 December 2008, Air Marshall and Mrs Evans applied for approval of an amended Development Application, that is, the Development Application amended to remove the encroachments referred to by the plaintiffs. The plaintiffs, by letter dated 28 January 2009, objected to that Application also. On 14 May 2009, the amended Development Application was approved.
On 15 May 2009, the plaintiffs sought leave to file an Amended Application in these proceedings to address the decision on the amended Development Application. I did not grant leave at that stage, mainly because Air Marshall and Mrs Evans had not yet appeared in the proceedings and may have wished to be heard on the proposed amendment. The plaintiffs also sought costs, as did ACTPLA. I reserved my decision on costs and will deal with costs of that appearance later in these reasons.
On 11 June 2009, the plaintiffs filed an Amended Originating Application which took account of the decision on the amended Development Application, which they also challenged. They filed the Amended Originating Application on 24 June 2009 in which they added some particulars of the grounds pleaded and challenged the decision on the amended Development Application on the grounds of denial of procedural fairness and that the decision was beyond power.
As a result, I required a copy of the Amended Originating Application to be forwarded to Air Marshall and Mrs Evans, though they were not active parties, having not filed a Notice of Intention to Proceed. They did not appear at any time in the proceedings.
They responded, however, to the service of the Amended Originating Application, expressing some lack of understanding of what was proposed and some frustration at what they saw as ongoing efforts to delay their plans for the development, but were prepared to abide by the decision of ACTPLA as to whether to consent to the Amended Originating Application or not. ACTPLA consented to the filing of it and, accordingly, on 24 June 2010, I gave leave in Chambers for it to be accepted for filing.
On 24 November 2010, leave was given to the plaintiffs to amend their Originating Application again and they did so to add further particulars and they also filed an additional affidavit. This was, it was said, necessitated by the fact that in the proceedings in the ACT Civil and Administrative Tribunal, to which I have referred above (at [6]), an officer of ACTPLA has asserted that certain provisions of the relevant code applied, even though it had not been mentioned in any of the decisions.
Affidavits were filed by both of the active parties and, at the hearing, a number of the deponents were cross-examined.
THE LEGISLATION
The relevant legislation is the Planning Act, which, for most of the substantive provisions, at least the ones with which I am concerned, commenced on 31 March 2008.
The Planning Act is a large statute, though that is not uncommon in present times, no doubt partly required because of the complexity of and public interest in its subject matter.
Section 46 requires that there be a Territory Plan which applies in the ACT, the object of which, s 48 states, is:
[T]o ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.
The Territory Plan 2008 (ACT) (the Plan) is that plan, and is clearly a central part of the Planning Act and for planning and development in the Territory. This is evidenced, inter alia, by s 50 which provides:
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.
This section is in the same terms as s 8 of the Land (Planning and Environment) Act 1991 (ACT), which Act was replaced by the Planning Act. Section 8 of the earlier Act was considered by Gray J in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (2007) 162 ACTR 1. His Honour said of that provision (at 12; [44]):
I consider that the overall statutory context in this case demonstrates that the legislature did not intend that the issue of inconsistency to objectively exist but rather that it should be left to the judgement of the decision-maker whether applications should or should not be approved
Leave to appeal was granted from that decision (Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority (ACT) (2008) 2 ACTLR 44) but the matter was settled before the appeal could be heard.
In his decision, Gray J said that inconsistency with the Territory Plan is not a jurisdictional fact but a part of the evaluative process entrusted, in the circumstances of this case, to officers of ACTPLA, subject, of course, to appropriate review as may be provided.
Section 51 of the Planning Act sets out the contents of the Plan. It provides:
(1)The territory plan must include the following:
(a)a statement of strategic directions;
(b)objectives for each zone;
(c)development tables;
(d)codes;
(e)a map (the territory plan map).
Subsection 51(2) sets out other matters that the Plan may, but need not, include, but for present purposes, I do not have to consider them. A zone is defined in the Dictionary simply as “a zone identified in the territory plan”.
Two matters in this list of Plan contents are important for this matter: the development tables and the codes.
Development tables are described in s 54 of the Planning Act, as follows:
(1) A development table for a zone must set out—
(a)the minimum assessment track that applies to each development proposal; and
(b)development that is exempt from requiring development approval; and
(c)development that is prohibited; and
(d)the code that development proposals must comply with.
(2)A development table may exempt a development proposal from requiring development approval subject to a condition.
(3)The assessment tracks, from minimum to maximum, are as follows:
(a) code track;
(b) merit track;
(c) impact track.
[examples and notes omitted]
There is a development table associated with each zone and which sets out, inter alia, those matters that are exempt developments (that is, for which development approval is not required), assessable developments (for which a development application is required) and prohibited development. For each assessable development, the relevant development table also sets out which developments require which minimum assessment track, whether code, merit or impact.
Codes are referred to in s 55 as follows:
(1)A code (other than a general code or precinct code that is a concept plan) in the territory plan must contain either or both of the following:
(a)the detailed rules that apply to development proposals the code applies to;
(b)the criteria that apply to development proposals the code applies to, other than proposals in the code track.
(2)A code must be consistent with each objective for the zone to which the code relates.
(3)A code that sets out the requirements that apply to stated areas, or places, or states that it is a precinct code, is a precinct code.
(4)A code that sets out the requirements for types of development, or states that it is a development code, is a development code.
(5)A code that sets out requirements applicable to the Territory, the Executive, a Minister or a Territory authority is a general code.
(6)To remove any doubt, a general code may also contain—
(a) policies to be complied with; and
(b)rules and criteria applicable to development proposals the code applies to.
[note omitted]
Each Code contains controls on developments which are expressed as rules or as criteria. The rules are generally definitive or quantitative, while the criteria are qualitative. In relation to a merit track assessment, the codes provide:
Proposals in the merit track have the option to comply with the rules or criteria, unless the rule is mandatory. Where it is proposed to meet the criteria, the onus is on the applicant to demonstrate, by supporting plans and written documentation, that the proposed development satisfies the criteria and therefore the intent of the element.
Section 7 of the Planning Act defines “development” to include “building, altering or demolishing a building or structure on the land” and the Dictionary defines a “development proposal” as “a proposal for development, whether in a development application or otherwise”. A development application is simply “an application in relation to a development proposal made under chapter 7 (Development approvals)”.
Section 199 of the Planning Act makes it an offence to undertake a development without development approval.
A development, such as that contemplated by Air Marshall and Mrs Evans, is required to proceed through the assessment and approval process which is established by Ch 7 of the Planning Act.
In that chapter, there are detailed provisions about the three tracks referred to in s 54(3) of the Planning Act. In order to determine which track an application should follow, it is necessary to refer to the development table for the zone in which is situated the land on which the development is to take place.
In this case, the land is, by reference to the Territory Plan Map, in the RZ5-High Density Residential Zone. The development table for that zone, where the development involves multi-unit housing, showed, at the relevant time, that the minimum assessment is by the merit track. The development table also provided, at the relevant time, that the relevant code by which the assessment is to be conducted is the Residential Zones – Multi Unit Housing Development Code (the Multi Unit Code)(see the Plan, 3.3, as it was). A copy of that was provided to me at the hearing.
The merit track is regulated by Div 7.2.3 of the Planning Act. The two principal provisions in the division are ss 119 and 120. They provide:
119 Merit track—when development approval must not be given
(1)Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
(b)if the proposed development relates to land comprised in a rural lease—any land management agreement for the land; and
(c)if the proposed development will affect a registered tree or declared site—the advice of the conservator of flora and fauna in relation to the proposal.
...
(2)Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under division 7.3.3 unless the person deciding the application is satisfied that—
(a)the following have been considered:
(i)any applicable guidelines;
(ii)any realistic alternative to the proposed development, or relevant aspects of it; and
(b)the decision is consistent with the objects of the territory plan.
(3)To remove any doubt, if a proposed development will affect a registered tree or declared site—
(a)the person deciding the development application for the proposed development must not approve the application unless the approval is consistent with the advice of the conservator of flora and fauna in relation to the proposal; and
(b)subsection (2) does not apply in relation to the conservator’s advice.
120Merit track—considerations when deciding development approval
In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a)the objectives for the zone in which the development is proposed to take place;
(b)the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c)each representation received by the authority in relation to the application that has not been withdrawn;
(d)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
...
(e)if the proposed development relates to land that is public land—the plan of management for the land;
(f)the probably impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
The Planning Act also provides for a process of public notification, referral to various authorities and procedural matters and, relevantly, provides under s 156 for written representations by anyone about the development application. As is clear under s 120(c), ACTPLA has to consider each such representation about a development application as is made.
Once ACTPLA has considered a development application, it must, under s 162, either approve it, approve it subject to conditions, or refuse it. If an application is approved, s 170 requires notice of the approval to be given to, inter alia, the applicant and anyone who made a representation about the application.
Finally, as noted above (at [9]), Air Marshall and Mrs Evans applied for an amended approval for the development proposal. Such applications are made under s 197 of the Planning Act, which provides:
(1)This section applies if—
(a)the planning and land authority has given development approval for a development proposal (the original development proposal); and
(b)the development proposal changes (the changed development proposal) so that it is not covered by the approval.
(2)An approval holder may apply to the planning and land authority to amend the development approval so that it approves the changed development proposal.
(3)An application under subsection (2) must—
(a) be in writing signed by the applicant; and
(b)if the application is made by someone other than the lessee of the land to which the application relates, be signed by—
(i)if the land to which the application relates is subject to a lease—the lessee of the land; or
(ii)if the land to which the application relates is public land or unleased land—the custodian for the land; or
(iii)in any other case—the planning and land authority.
(4)A person who signs an application under subsection (3)(b)(i) is taken to be an applicant in relation to the application.
This can be granted by ACTPLA under s 198 which provides:
(1)In deciding whether to amend a development approval in accordance with an application under section 197, the planning and land authority must consider the application, and take action in relation to the application, as if—
(a)the development originally approved had been completed; and
(b)the application for amendment were an application for approval of a development proposal (the proposed development) to change the completed development to give effect to the amendment.
...
(2)The planning and land authority must refuse to amend the development approval if satisfied that the changed development proposal and the original development proposal would be in different assessment tracks.
(3)Also, the planning and land authority must refuse to amend a development approval unless satisfied that, after the amendment, the development approved will be substantially the same as the development for which approval was originally given.
(4)To remove any doubt, if public notification of the proposed development is required under the assessment track that applies to the proposed development, only the application for the amendment need be publicly notified.
Section 119 and jurisdictional facts
Mr C Erskine SC, counsel for the plaintiffs, submitted that s 119 sets out “jurisdictional requirements for a valid decision under the merit track”. That is, he submitted that, unlike s 50, the section is not addressed to the decision-maker; it is a statement of jurisdiction, rather than a matter of judgment to be left to the decision-maker.
In the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148; [28], explained what a jurisdictional fact is for this purpose:
The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a ‘non-complying’ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ‘non-complying’ development, which turned upon the application of the criterion of ‘special industry’, was a condition upon the existence of which there operated the obligation that the Commission not grant consent.
I set out in Faull v Commissioner for Social Housing [2013] ACTSC 121 at [127] a recent analysis of the concept of a jurisdictional fact and I adopt that approach.
The identification of whether a statute intends that a factual reference can only be satisfied by its existence or non-existence is a matter of construction of the statute in which the reference occurs. As Spigelman CJ observed in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707:
What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.
In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 62; [44], Spigelman CJ, with whom Mason P and Meagher JA agreed, observed:
The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.
Some of the matters referred to in s 119, namely s 119(1)(b) and (c), are matters which may give some support to the plaintiffs’ contention that the provision established what are jurisdictional facts for the decision. These are matters which are easily identifiable and determinable. Codes referred to in s 119(1)(a), however, are more complex. While they consist of rules which are quantitative and, again, more conceptually compatible with the requirement of a jurisdictional fact, the criteria are much more problematic in this context. They are replete with value judgments of a complex kind that would prove difficult for precise assessment in the way indicated by Gray J. Thus, decisions such as whether buildings are sited “to minimise overlooking”, whether for a development “the highest standards of architectural design can be achieved”, requiring a development to provide “‘[r]ich, imaginative and subtle design elements”, all mentioned in code criteria, are not ones which seem to me to lend themselves to decisions that are required as a jurisdictional fact. That the criteria are replete with adjectives such as “compatible”, “high quality”, “useable”, “extensive”, “attractive”, “comprehensive” and “appropriate” is hardly likely to have been intended by the legislature to mean that the relevant facts are jurisdictional facts. A high point may be that one criterion specifies that:
Entries to dwellings
...
(b)give the resident a sense of personal address, shelter and transitional space around the entry.
In Argos Pty Ltd v Corbell (2012) 7 ACTLR 15 at 31; [60], Burns J, relying on what Gray J had earlier said (to which I have referred at [20] above), held that s 119(1) did not establish jurisdictional facts. I respectfully agree.
It is against this legislative background that the application is to be considered.
THE APPLICATION
As amended, the Originating Application by the plaintiffs, Mr Forman and Ms York, sought that the two decisions of ACTPLA, namely the decision on 25 September 2008 and the decision on 14 May 2009, be set aside on the grounds specified as follows:
1.The First Defendant’s decisions were an improper exercise of the power conferred by the Planning and Development Act 2007 (“the Act”) in that they:
(i)Took into account irrelevant considerations, namely –
(A)floor plans of the Plaintiffs’ unit that were known by the First Defendant to be incorrect,
(B)plans of the proposed development that were known by the First Defendant to be incorrect.
(ii)Failed to take into account relevant considerations, namely –
(A)the Plaintiffs’ representations, including shadow diagrams, photographs and a report of Eric Martin, Architect,
(B)the fact that the shadow cast by the proposed development would fall across the main daytime living area of the Plaintiff’s residence, and
(C)the fact that the proposed development would involve building a wall on the Plaintiffs’ land and thus encroach outside the boundaries of the Second Defendants’ unit,
(D)the fact that the proposed development involved or was likely to involve activity that would or may damage a protected tree or be prohibited groundwork in the protection zone for a protected tree, and that the advice received from the Conservator of Flora and Fauna (“the Conservator”) on or about 1 April 2009 did not recognize that fact.
(E)the fact that the proposed development did not comply with Element 5.3 of Part C(1) of the Residential Zones – Multi Unit Housing Development Code.
2.The First Defendant’s decisions involved an error of law in that they failed to apply or properly apply:
i)Rule 86 of Element 5.1 of Part C(1) of the Residential Zones – Multi Unit Housing Development Code.
ii)Rules and Criteria 88 to 90 of Element 5.3 of Part C(1) of the Residential Zones – Multi Unit Housing Development Code.
3.The making of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which they were purported to be made in that it involved an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power, in that the First Defendant failed to inquire or make proper inquiries (a) of the impact of the proposed development on the solar access of the Plaintiffs, and (b) as to the effect or likely effect of the proposed development on a protected tree, and (c) as to any advice that the Conservator might give if made aware of the effect or likely effect of the proposed development on a protected tree.
4.In relation to the Second Decision and the Amended Decision, the First Defendant denied the Plaintiffs procedural fairness in that it failed to provide the Plaintiffs with an opportunity to consider clear and legible plans of the proposed development.
5.The Second Decision or the Amended Decision was beyond power because s 198(1) of the Act, in restricting the First Defendant’s relevant considerations to those aspects of the Second Defendant’s development proposal that had changed, had the effect of rendering the Original Decision unreviewable and is hence inconsistent with s 48A Australian Capital Territory (Self Government) Act 1988 (Cth).
6.The Amended Decision was beyond power because the effect of s 197 of the Act was to allow the First Defendant to make a new decision on the changed development proposal of the Second Defendant, and not to amend the Original Decision.
APPROACH TO THE PROCEEDINGS
Not all those grounds were ultimately pressed. Mr Erskine notified me that grounds 1(ii)(C) and (D) were not pressed, and grounds 5 and 6 were not pressed. The former were not pressed because the encroachment issue had been resolved by what was called, in the Amended Originating Application, the Amended Decision, and the evidence showed that there was not likely to be damage to a protected tree.
The latter two grounds were not pressed because ACTPLA did not take the position that the Amended Decision (that is, the decision of 14 May 2009) had, in any way, removed the ability of the plaintiffs to challenge the Original Decision (that is, the decision of 25 September 2008).
This also meant that, in fact, grounds 3(b) and (c) were in fact also not pressed because the issue relating to the protected trees was no longer a live issue.
Thereafter, however, the approach of counsel for the active parties diverged widely. Mr Erskine took what might be described as a global view of the actions of ACTPLA, making criticisms of its process and the work of its officers which had not really been pleaded. Mr G McCarthy, counsel for ACTPLA, concentrated on the grounds pleaded and did not address many of the claims made in submissions of the plaintiffs. This has made it difficult to resolve the application in a comprehensive and comprehensible way.
FACTUAL MATTERS
In order to approach the resolution of the contest between the plaintiffs and ACTPLA, it may help to set out some of the facts and events involved. I shall limit these to those that I consider have a bearing on the resolution of the case, where necessary for comprehension appropriately supplemented, but not intended to be a comprehensive outline of all the factual material I had in affidavit and oral evidence.
A relevant starting point is a meeting of representatives of proprietors of all the units in Swan’s Place in late April or early May 2008, where Air Marshall and Mrs Evans outlined the developments which they were proposing to their unit. These proposals were apparently similar or the same as proposals they had made in 2003, to which the plaintiffs had then objected. The plaintiffs indicated that they still objected.
The plaintiffs travelled overseas from 14 May to 24 June 2008 and, on their return, received Minutes of a Meeting of the Body Corporate for Swan’s Place which had been held on 25 May 2008, in their absence, and which authorised the sending of a letter to ACTPLA advising that those present at the meeting “agreed to the submission by Unit 3 [Air Marshall and Mrs Evans], of their application to [ACTPLA]”. A copy of the letter noted that the plaintiffs were overseas and that “it is understood that [the plaintiffs] may be opposed to the said proposal”.
As noted above (at [4]), Air Marshall and Mrs Evans submitted the Development Application to ACTPLA on 20 July 2008. It described the proposal as “minor additions to dining room and family room at ground floor level and major bedroom at upper level – (Unit 3 Block 7 Section 24 Kingston ACT).”
The Development Application included, inter alia, a number of “shadow diagrams”. These are diagrams or plans showing the effect that the proposed development would have on the plaintiffs’ unit with respect to blocking sunlight at various times of the day, thereby casting a shadow over their property.
On 10 August 2008, the plaintiffs lodged with ACTPLA a formal objection to the development, being a letter with which they included a report from Eric Martin & Associates, Architects, and a report from John W Foxlee & Associates., Registered Surveyor.
Mr Foxlee, in his report, advised that “the boundary between Units 3 and 4 ... falls on or near the centre of the existing brickwork being a fence and a screen wall”.
Mr Martin made a number of comments critical of the proposed development and attached some shadow diagrams of his own which, in his assessment, he said
clearly indicate that there is shadowing of the main daytime living area from 9am whereas the existing provides reasonable sun access to about 11:30am. This mandatory requirement is not met.
These shadow diagrams were what were called ‘3D Diagrams’. The mandatory requirement to which Mr Martin refers is to Rule 86 in the Multi Unit Code, specified to be “a mandatory requirement”, and which is in the following terms:
Development is sited to allow a minimum of 3 hours of direct sunlight onto the floor or internal wall of the main daytime living area of the dwelling between the hours of 9.00 am and 3.00 pm on 21 June (winter solstice).
There is an issue as to whether this is relevant, to which I will return later.
On 25 September 2008, ACTPLA approved the Development Application, that is, it gave development approval, and, by a communication dated 29 September 2008, advised the plaintiffs, sending them a copy of the decision it had made.
In respect of the impact of the development on solar access to Unit 4, the decision states:
The Authority has reviewed the shadow diagrams prepared by the applicant. The Authority considers that whilst there will be some impact on the solar access of laundry/kitchen window of unit 4 between 9am and 12 noon, the increase in shadow is minimal. The effect of the shadows on the laundry/kitchen window will not change after 12 pm.
After receipt of the letter, Mr Forman telephoned the delegate of ACTPLA for the decision, Ms Thara Boraiah, on 2 October 2008. In his affidavit, he deposed to the conversation he had with her as follows:
I identified myself and said words to the effect of ‘Can you tell me what consideration was given to the surveyor’s report and architect’s report included in our representations?’ Ms Boraiah replied with words to the effect of ‘I’m not sure about the surveyor’s report, can you fax me a copy?’ I replied with words to the effect of ‘Yes, but what about the architect’s report, did you consider the issues raised in Eric Martin’s report including the shadow diagrams?’
Ms Boraiah replied with words to the effect of ‘We don’t have time to consider all the details in such a report, we rely on the information provided by the DA applicant. The information in the DA indicated that the proposed extension met all of the necessary requirements.’
I said words to the effect of ‘What about Eric Martin’s shadow diagrams, did you consider those?’
Ms Boraiah replied with words to the effect of ‘We considered the shadow diagrams in the applicant submitted [sic] and some shadow diagrams we produced. You can come here and inspect our diagrams if you like.’
I said words to the effect of ‘Can you e-mail us the diagrams so that we can consider them and ask Eric Martin to comment on them?’
Ms Boraiah said ‘I’m on leave tomorrow, and Monday’s a public holiday, so I’ll e-mail them to you next Tuesday. I’ll also call you next Tuesday to discuss the surveyor’s report and site plan. I replied with words to the effect of ‘Alright, when I speak with you then I will also schedule a time to come and meet with you to discuss this matter.’
In her oral evidence, Ms Boraiah explained that she had seen Mr Foxlee’s report but had not understood it to be a “Surveyor’s Report”. For reasons that appear below, I do not have to consider that aspect further.
Ms Boraiah did not otherwise give evidence orally or by affidavit that put in issue the balance of this conversation.
Mr Forman, in his oral evidence, was emphatic that Ms Boraiah did not appear to know that he had submitted a surveyor’s report with his letter of objection and he did not consider that she was confused about which document he was referring to in the conversation.
In her affidavit, however, Ms Boraiah said that she discussed both the report of Eric Martin & Associates and of John Foxlee & Associates with another senior assessment officer of ACTPLA. She said that they agreed “that the statements made by Mr Foxlee ... [were] not necessarily inconsistent with the original units plan”. She gave detailed reasons for that conclusion which it is not necessary for me to consider.
It was subsequently ascertained, in circumstances to which I briefly refer below, that the development would actually encroach on the property of Unit 4, as suggested by the report of John W Foxlee & Associates. As a result, an application dated 31 October 2008 to amend the development approval was lodged by Air Marshall and Mrs Evans, as already noted above (at [9]).
By that time, Ms Boraiah was on leave and, on her return, moved to a different area in ACTPLA. Consideration of the amended Development Application was assigned to Mr Simon Hawke.
On 13 January 2009, the plaintiffs were notified of the application to amend the development approval. They objected to the proposal and, by letter dated 28 January 2009, set out the grounds of their objection, which included “loss of solar access”. They attached a further copy of the report of Eric Martin & Associates, which included his shadow diagrams.
The letter was comprehensive and detailed, being twenty-six pages in total. It included a photograph of the room adjacent to the area which would be shadowed by the development, showing that, while it was a kitchen, it extended into a meals area with a bay window with glass ceiling extending out over the table where the meals area was. It was, the evidence showed, about two metres across. Over it was what was described as a “sail roof”.
The letter referred to the reference in the development approval to “solar access of laundry/kitchen window” as noted above (at [64]), and continued:
Where did the idea that our kitchen/family room is a ‘laundry/kitchen’ area come from? Admittedly, there was a laundry in the kitchen/family room until 1999, but even so the room has been referred to on all official plans, of that time and since, as a kitchen/family room. The only mention of a ‘laundry/kitchen’ room is in this decision and the term must have been invented by ACTPLA staff. We object, as it denigrates the quality of the room. By referring to it as ‘laundry/kitchen’ the emphasis is on the laundry rather than the kitchen, and of course it makes no mention of the family room.
It included other photographs of the area.
Mr Hawke read the letter and, indeed the earlier letter of 10 August 2008. He also read the report of Eric Martin & Associates and considered the shadow diagrams.
He noted the concerns about the area described as “laundry/kitchen” in the development approval and looked at the photographs.
He conducted his own shadow analysis and his analysis “agreed with” the shadow diagrams provided by Mr Martin. Indeed, he said that it appeared that there were no significant differences between either of these shadow diagrams nor with those included with the original development application.
He considered the description of the room in the plaintiffs’ letter and had regard to their photographs of the area that were reproduced in the letter. He then considered the issue of solar access by reference to that description and those photographs. He assessed it in the context of the relevant rules and criteria under Element 2 in Part C(1), of the Residential Zones – Multi-Unit Housing Development Code, “Building and Site Controls”, these being rules and criteria 54 and 55 (C 54 and C 55).
Although it deals with set back, C 54 refers to front set back being such as “will not significantly compromise the amenity of ... residents of adjoining and adjacent dwellings” and C 55 refers to the siting, height and length of buildings to ensure “the protection of a reasonable amount of privacy and solar access to ... adjacent dwellings”. Of course, these were the criteria. The rule specified actual set back distances.
The evidence was a little confusing, since it appeared that Mr Hawke took the relevant set back to be that of the whole unit development, not of each individual unit.
His conclusion as to solar access was set out in his affidavit where, in paragraphs 9 and 10, he deposed:
9.However, from the shadow diagrams it was clear that shadowing of the plaintiffs’ north east courtyard and the north east area of their Unit is already significant. The whole area is in shadow from 11am, and the courtyard is predominantly in shadow at all material timers. I also noted that Unit 4 would continue to receive unimpeded solar access to the living and dining areas and western courtyard areas, as described in paragraph 7 above.
10.I therefore determined that the impeding of the solar access to the north east portion of the plaintiffs’ Unit 4 did not significantly compromise the amenity of the plaintiffs and was not a basis upon which I could or should refuse the DA.
By reference to the diagrams, Mr Hawke said that, if the development were to proceed, there would be solar access to the meals area at 9:00 am, though with partial shadowing to about half of it. He said that, at 10:00 am, there is currently some shadowing, not very much, but there will, if the development proceeds, be significant but not complete shadowing. He added that, at 11:00 am, the shadowing would be the same in both cases. Hence, he concluded that there was already significant solar access impediment and that the development would not significantly compromise the amenity of the plaintiffs.
Mr Hawke did apply rule 86, as had been referred to by Mr Martin, but he said that it applied only to the development itself, that is, to the unit of Air Marshall and Mrs Evans, and did not refer to properties adjacent to the development, such as that of the plaintiffs. He considered that the rule had been met.
I have looked carefully at the rule and I am satisfied that, in its terms, it does apply to the property the subject of the development application and not to adjacent dwellings. That follows, it seems to me, from the wording of the “[i]ntent” of the element in which the rule appears, namely “Element 5: Amenity”. Each of the other rules and criteria under it refer unambiguously to the subject development and there is no reason to suppose that rule 86 would be any different. The reference to “the dwelling” in the rule, as set out above (at [61]) refers, in my view, to the dwelling the subject of the development and not to adjacent dwellings. Where a whole development is being considered, it may then apply to all of the dwellings in the development, but that is not this case.
Mr Erskine submitted that the terms of the Intent of the Elements suggest that the provisions apply to the whole block and not merely to a particular proposal. He refers to rr 88 and 89 which refer to private open space “per dwelling”.
I disagree. It seems to me that these references reinforce that the rules and criteria are, under this element, concerned with only the individual dwelling and its amenity that is contained in the relevant development application. To apply it otherwise would make its application impossible. For example, in this case, the room in the plaintiff’s dwelling probably does not currently comply with r 86; to make the development depend on that being rectified to produce compliance would be absurd.
The relationship between dwellings, however, is clearly dealt with under Element 3, where 3.3 deals with “Interface”. Criterion 68 makes it clear when it provides:
The dwellings are to be designed and located to:
a)receive adequate daylight and sunlight
b)protect the living rooms of adjacent dwellings on the subject site from direct overlooking.
Having said that, the measure of what is adequate daylight and sunlight for the purpose of this criterion will obviously have regard to r 86, depending on how it is applied.
In this case, it is clear that the area of Unit 4 about which the plaintiffs complain are already non-compliant with r 86. The shadow diagrams of Eric Martin & Associates, as well as the other shadow diagrams, show that. This is presumably because the area was a laundry (as admitted by the plaintiffs) until 1999. That change to the living area, if to a main living area, must have been made without proper appreciation of r 86, even though it is not mandatory.
There was also an issue as to compliance with r 88, which relates to “Private Open Space” on the development. Mr Hawke found that there was a “minor departure” from the area of open space required by the rule. The departure was about twenty square metres but he formed the view that, as it suited the needs of the occupants, it met the criterion. He also considered service functions such as clothes drying and domestic storage.
In cross-examination, Mr Hawke produced the form that he used for the assessment he had performed. In it, he made reference to particular rules or criteria “where it is considered warranted to clarify why a particular criterion or rule is either met or not met”. He referred to rules and criteria numbered 40, 54, 55, 58, 68 and 69 as well as criterion 59 (where there was no applicable rule). He did not refer to rr 86 or 88.
He confirmed that he interpreted rr 54 and 55 as relating to the whole block of units and not to the set back between individual units within the block, though in respect of rule and criterion 54, he did note that:
The proposal ... will not compromise the neighbouring amenity as it will not significantly impact the southern neighbours [sic] main areas for solar access being the living and dining rooms which are not impacted by the proposal.
He also considered the proposal by reference to rule and criterion 68, “Interface” and noted:
The proposal meets the criterion or rule because while the development encroaches the interfacing distance to the south western neighbouring dwelling, the development will receive adequate daylight and sunlight, and as the upper floor level window faces the street rather than the southern neighbour, the development will also protect the living room of the adjacent neighbour from overlooking.
In his affidavit, he referred to his assessment of the proposal by reference to r 86 and concluded “that the proposed Development would receive the amount of solar access required under Rule 86”. He agreed that this refers to solar access to Unit 3 only and not to the plaintiffs’ unit, Unit 4.
He accepted that an assertion that a proposed development would impede solar access to a living area of an adjoining property was a significant matter for ACTPLA and would, in ordinary circumstances, trigger a careful study.
Mr Hawke agreed that he had not referred to that issue in his comments on criterion 68 but had considered it in his consideration of r 54. He said, that while he had actually considered it under criterion 68, he had not made a note of any relevant comment. He agreed that it was not referred to either in his reasons for decision or in his affidavit.
There were other considerations, such as in relation to r 88, which, in his oral evidence, he said he had considered but which were not mentioned in his assessment sheet or in the reasons. This permitted a departure from the minimum private open space if suitable to the occupants’ projected requirements. He agreed that he had no direct information from the applicants about their projected requirements. He accepted that there was no note on the file of compliance under r 88, though he had, he said, done a calculation to show that the proposal did not comply with the rule.
He agreed that he was engaged in “a conceptually slightly difficult task”. He was not conducting a complete review of Ms Boraiah’s decision, because he was considering the amendment. In his decision, however, he made comment on issues received from the public notification. He set out, in his decision, a preface to the consideration of these issues as follows:
The main issues raised were as follows. The Authority’s comments in response are provided as appropriate.
While the majority of issues do not directly relate to the amended application, comments are provided as appropriate.
Mr Hawke had approved the application to amend the development approval because the changed development would not be in a different assessment track (s 198(2) of the Planning Act as it was then) and because the development, after amendment, would be substantially the same as the development for which approval was originally given (s 198(3) of the Planning Act as it was then).
Mr Hawke agreed that he was not reviewing the whole of what Ms Boraiah had done, nor was he, in the words of cross-examining counsel, which he adopted, “picking up anything which [Ms Boraiah], in [Mr Hawke’s] view, may have done wrongly and correcting it”.
In re-examination, Mr Hawke explained what he had done in his assessment as follows:
Do I understand that you conducted your assessment against criteria 1 and the other issues, for example 54, 56, 68, 88 and 90, because of the concern you’ve expressed about Ms Boraiah having misapplied C5 and using rules and criteria 232, for example? Yes.
So it was a measurement of checking as to whether those things met the territory plan and in particular the multi-unit code per se and being satisfied that they did - - - ? Yes.
- - - as opposed to making any independent finding or rulings about those things? Yes.
So you were satisfied that even if she hadn’t looked at it, it nevertheless met those issues? Well, yes.
I have to say that I could not find where Mr Hawke said, either in his affidavit or in his oral evidence, that Ms Boraiah misapplied the Multi Unit Code by assessing the development application by reference to Part C(5), which did not apply, instead of by reference to Part C(1), which did.
There was, however, no doubt that this is what she did, and Mr G McCarthy, who appeared for ACTPLA, very properly did not contend otherwise. The internal form used by Ms Boraiah to assess the application made that quite plain, referring expressly to Part C(5), and to rules and criteria that appeared in that Part of the Multi Unit Code.
WHICH DECISION?
The first question posed by Mr Erskine was which was the operative decision. The original decision made by Ms Boraiah he submitted was “fatally flawed” because she applied the wrong rules and criteria for a portion of her consideration of the original development application. This meant, Mr Erskine submitted, that Mr Hawke’s decision was the operative decision.
While apparently seductively attractive, this argument is rather more complicated than it appears.
ACTPLA did not concede that the first decision was not operative.
It is true that a decision purporting to be made under one statutory power may be supported under another statutory power, as stated in Lockwood v Commonwealth (1954) 90 CLR 177 at 184 (Fullagar J).
There are limits on such a principle because, as noted in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412, matters required or not permitted to be taken into account may vary as between the statutory provisions.
In this case, there are some variations in the terms of the rules and criteria between Part C(1) and Part C(5), though in general terms the requirements are similar.
Prima facie, however, there was an error of law in applying the wrong rules and criteria to the proposal. Thus, prima facie, the decision is infected by an error of law, which goes to the jurisdiction of the decision-maker: Craig v South Australia (1995) 184 CLR 163 at 179. This would, of course, make the decision a “nullity”. As Gaudron and Gummow JJ pointed out in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 616; [53], a decision of an administrative body involving jurisdictional error has no legal foundation and if so, the decision-maker can then make the decision; in effect, make it again.
That would, of course, permit ACTPLA to make a fresh decision, and the question is whether the decision by Mr Hawke was such a fresh decision.
On the other hand, Mr McCarthy submitted that the decision of Ms Boraiah was the operative decision. He referred to what Mason CJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, namely:
A decision does not ‘involve’ an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different. The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.
See also per Toohey and Gaudron JJ at 384:
For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred. This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond.
Mr McCarthy submitted that the assessment by Mr Hawke showed that applying the correct rules and criteria led to the same decision as that made by Ms Boraiah. He pointed out that remedies in judicial review proceedings are discretionary, and where the decision would have been the same, despite the error of law, the court should not set it aside.
Whether that is so or not, it seems to me that the operative decision is that of Ms Boraiah. Mr Hawke was not remaking her decision; he was very clear about that. While that is not definitive, it does not seem to me irrelevant. The decision of Mr Hawke would, in appropriate circumstances, be amenable to the principle referred to above (at [108]) articulated by Fullagar J in Lockwood v Commonwealth, but it does not seem to me to be appropriate. Mr Hawke made it clear that he was “checking whether those things met the territory plan” rather than “making any independent findings or rulings” which would be required of an operative decision.
The terms of the Planning Act, relating to amendments referred to above (at [38]-[39]), make this view not as obvious as it may seem. In particular, s 197(2) might suggest that what is now approved is the whole proposal, as changed. That would supersede the decision of Ms Boraiah.
Such an approach is problematic, as it is clear from s 198 of the Planning Act that the decision on the amendment does not require a reconsideration of that original approval; indeed, the process assumes that the development, the subject of the original proposal, has been completed. That, in my view, makes it inconsistent to suggest that the consideration of the amendment requires the original proposal to be revisited.
It is also clear that s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) would not permit a decision of ACTPLA, like that of Ms Boraiah, to be immune from judicial review: Faull v Commissioner for Social Housing at [107]-[109]. That would be the result of such a construction of these provisions.
It seems to me that the amendment itself, not the whole development, is to be approved as if self-standing, following, in a notional sense, the completion of the development which the original Development Application (which the amendment application seeks to have amended) has approved (and which has become in the terms of the Act a “development approval”). Once approved, the amendment then becomes part of the original development approval (i.e. with the approved amendment incorporated) in reliance on which the applicant can legally complete the development.
That is to say, there are two operative decisions: the original approval and the approval of the amendment. The latter varies the original approval but ACTPLA is not required – perhaps is unable – to revisit that earlier decision, though the ultimate development is then authorised by the original approval as amended which, for that purpose, becomes, in the terms of s 197(2), “the changed development proposal”.
So far as judicial review is concerned, however, both decisions are amenable to challenge, subject to the relevant procedural and substantive provisions relating to such review. Hence, it was not necessary for the plaintiffs to pursue grounds 5 and 6 of their application for judicial review. See above (at [48], [51]).
In my view, then, I should consider Ms Boraiah’s decision and evaluate it in the terms under which it was challenged, having regard, however, to what Mr Hawke found where relevant. I shall, accordingly, refer to Ms Boraiah’s decision as “the Decision” and Mr Hawke’s decision as “the Amendment Decision”.
THE ISSUES
While Ms Boraiah’s use of the incorrect Part of the Multi Unit Housing Development Code was an error of law which would be subject to the application of the approach that Mr McCarthy submitted above (at [113]-[115]), the real issue in this case is whether Ms Boraiah had considered, in the Decision, solar access to the plaintiffs’ unit and the plaintiffs’ objection based on that issue. While other matters were pleaded, that, in the way the proceedings were conducted, was the real challenge to the Decision.
A subsidiary challenge was in respect of the rules and criteria 88-90 in relation to private open space.
I shall deal with each in turn.
Solar Access
Under s 170(3)(c) of the Planning Act, ACTPLA, and, therefore, any delegate making a decision in respect of a development application, is required to set out the reasons for the decision.
Both Ms Boraiah and Mr Hawke used templates available to ACTPLA to assist them to formulate their reasons.
It is clear from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 that a failure to provide adequate reasons is not an error of law. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 224-6; [40]-[48] (Gleeson CJ, Gummow and Heydon JJ), 228; [56] (Kirby J).
The High Court has, however, also stated in Minister for Immigration and Multicultural Affairs v Yusuf at 331-2 (Gleeson CJ), 338 (Gaudron J), 346 (McHugh, Gummow and Hayne JJ), that, if the reasons which are given do not set out a finding on some question of fact, it may be assumed that the decision-maker has not referred to that matter. See, also, North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442-3; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1835; [130].
I have set out, too, in Faull v Commissioner for Social Housing at [186]-[188], the restraint that should be exercised in judicial review in construing reasons of an administrative decision-maker, especially one who, perhaps unlike many tribunal members, is not expected to have legal qualifications.
I turn, then, to consider the reasons for decision. Clearly, when the Development Application is compliant with rules or criteria, it is not necessary to refer to each rule or criterion individually. The Decision did, as is desirable, state general compliance when it said:
The application satisfactorily meets the requirements for approval. The application was approved because, based on the documentation and in the form modified by the imposed conditions, it was considered to meet the relevant code, being the Multi Unit Housing Development Code.
This is appropriate and adequate, particularly if specific matters, such as referred to in objections, are then addressed, as was done here.
Under the heading “Public Notification”, the Decision referred to what were described as “the main issues” raised in the representations received following public notification. It is clear that a decision-maker is not required to address every issue raised (Dornan v Riordan (1990) 24 FCR 564 at 567-8). However, it may be preferable to make it clear that all appropriate issues have been addressed, by using a phrase such as “the relevant issues” or “the substantive issues”, to make it clear that the minor (cf “main”) issues were ones which it was not necessary to address, because they were not relevant, rather than because they were merely minor.
In this case, the relevant matter was addressed in the passage headed as follows, referring obviously to the content of the relevant representation:
(b)The proposed additions would adversely affect the comfort and convenience of unit 4, in terms of loss of privacy, solar access and encroachment on Unit 4 land.
The issue of encroachment has been resolved. No complaint in these proceedings was made about privacy. The question of solar access was then addressed under this heading in the paragraph which has already been quoted above (at [64]).
Thus, it can be said that this relevant consideration has been addressed. The question of whether a decision-maker has taken into account a relevant consideration is not to be used to undertake a merits review, as warned by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 441-2; [63]-[64]. Thus, although Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 said that a decision-maker must give “proper, genuine and realistic consideration to the merits of the case”, that is not a means of converting judicial review into merits review.
Despite some controversy about the formulation articulated by Gummow J, and though some courts have followed it, it seems that such consideration falls under the principle that the weight accorded to relevant considerations are matters for the decision-maker, and not for the court, unless it shows that the decision is seriously irrational: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-8; [23]-[39]. Further, a failure to respond to a substantial argument may amount to a breach of the rules of natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394; [24] (Gummow, Callinan JJ), 407; [89] (Kirby J), 408; [95] (Hayne J); Minister for Immigration and Citizenshipv SZJSS at 177; [35].
The difficulty for ACTPLA is that Ms Boraiah’s consideration was under the incorrect Part of the Multi Unit Code. While Mr Hawke did consider the correct Part of the Code, he was not assessing the Development Application under ss 119 and 120 of the Planning Act. I note that the assessment involves a degree of evaluation, and that may affect a proper, statutory assessment, such as was required of Ms Boraiah, in a way that it would not affect a “check” as undertaken by Mr Hawke.
There is, however, a more fundamental problem here. Section 120 requires the representations made by persons such as the plaintiffs to be considered. I am not satisfied that they were considered by Ms Boraiah.
I accept that Ms Boraiah said, in her affidavit, that she had discussed the report from Eric Martin & Associates with her fellow senior assessor and that she stated that she approved the application “having taken into account all the material before [her]”. Her evidence, however, does not support that.
In the first place, she only refers to the issues raised in the report from Eric Martin & Associates in connection with the encroachment. In her affidavit, she makes no mention of solar access at all. She certainly makes no mention of the shadow diagrams in the report.
The conversation she has had with Mr Forman, which was not relevantly challenged, suggests that she only looked at the shadow diagrams attached to the Development Application and not those attached to the Eric Martin & Associates report.
That is supported by her comment in oral evidence that ACTPLA does “not have the facilities to look at 3D shadow diagrams”, though this was contradicted by Mr Hawke.
Mr Hawke’s view was that all three shadow diagrams (those attached to the development application, those included in the report of Eric Martin & Associates and other prepared by ACTPLA itself) showed no significant difference. I did not have the ACTPLA diagrams, but I did see the other two. There were differences. It is not for me to say whether they are material; they may well not be, but this is a matter of merits with which I am not concerned. Only an assessment could make a proper decision on this issue.
It was clear from the comments in the report of Eric Martin & Associates that the relevant part of the plaintiff’s unit affected by solar access was what the plaintiffs described as the main living area. Solar access to a main living area is quite a different consideration from solar access to a laundry or even a kitchen. It may be, as Mr Hawke considered, that the development, on assessment by reference to the relevant rules and criteria, complied, but that assessment is not what Ms Boraiah did.
The evidence satisfies me that Ms Boraiah did not consider the plaintiffs’ representations so far as solar access is concerned.
While I have indicated my view that, in these circumstances, r 86 does not directly apply, I have also indicated that it has relevance, at least indirectly, through consideration of the interface between the dwellings.
Rule 86 is, however, not a rule that is easy to apply. Applied literally, it only requires the sun to touch the floor or internal wall of “the main daytime living area”. It gives no indication of how much of either it is necessary to reach. If one assumes that it refers to the whole of the floor or an internal wall, then even in the shadow diagrams of the existing situation prepared by Eric Martin & Associates, there is no existing compliance with this rule. The change in 1999 to Unit 4, therefore, appears currently to breach the rule.
If, as a literal reading would suggest, sunlight need only actually reach some part of the floor or internal wall, no matter how small, then even the shadow diagrams prepared by Eric Martin & Associates show that it does so under the proposed development, though, by 12 noon, to a very limited but still actual extent, thereby still meeting the rule as so interpreted.
There is nothing express in the rule to suggest that the rule should be interpreted by inserting a qualifier such as “to a significant degree” or “to a substantial extent”, though that may be appropriate. To some extent, however, that is inconsistent with the nature of a rule as referred to above (at [29]).
Mr Erskine submitted that, were I minded to set aside the decision and remit it to ACTPLA to be remade, I should give directions as to how r 86 should be construed. I have, however, not been favoured with such submissions as would permit me to do so. It may be that the ACT Civil and Administrative Tribunal and the Administrative Appeals Tribunal have developed jurisprudence about that, but, if not, that will have to await another day.
In my view, ACTPLA considered the Development Application under the wrong Part of the Multi-Unit Code and did not properly consider the representations of the plaintiffs. The Decision must be set aside. If remade, a proper consideration may result in the same decision, of course, but that is not a matter for me. It is entirely a matter for ACTPLA.
Private Open Space
The challenge to the consideration of r 88 was really a challenge to the decision of Mr Hawke, to which it was not really relevant.
Ms Boraiah made no comment on this aspect and was not asked any questions about this issue at all. I note, too, that there was no reference to this issue in the representations of the plaintiffs, including the reports of Eric Martin & Associates and John W Foxlee & Associates.
There is, under Part C(5), which is the part under which Ms Boraiah considered the application, a rule and criterion about private open space, but it is different from that in Part C(1), against which it should have been assessed. It may be that, as I have found that compliance with the Code is not a jurisdictional fact, this issue is not a basis for challenge in the circumstances.
While Mr Erskine did submit that, without inquiring of Air Marshall and Mrs Evans, Mr Hawke was not in a position to assess, as the correct criterion required, “the projected requirements of the dwelling’s occupants”, I am not sure that this is necessarily always so; some reasonable assessments can be made from the application itself and other matters, such as the personal circumstances of applicants, may be obvious from the application or known to ACTPLA. Nevertheless, a significant reduction from the requirement in r 88 may well require some inquiry of the applicants to ensure that the criterion can be properly assessed.
CONCLUSION
As a result of my findings, I am satisfied that the decision of ACTPLA of 25 September 2008 must be set aside and the matter remitted to ACTPLA for proper consideration in accordance with the law. On this basis, it is unnecessary for me to consider grounds 3 (unreasonableness) and 4 (procedural fairness) of the plaintiffs’ claim, though the latter is perhaps dealt with because of the basis for my decision. I was not attracted to the strength of the former.
As Mr Hawke’s decision is a decision to permit amendment of a development approval that has been set aside, it cannot stand.
Presumably it is the amended development application that should now be considered in its entirety as a development application.
Costs should follow the event.
There is, however, an issue about the costs occasioned by the amended application.
COSTS OF THE AMENDED APPLICATION
This issue arises in this way. The plaintiffs, in their original representation on the Development Application, raised, inter alia, a claim that the proposed development encroached on their unit. They included, as I have noted, a report from John W Foxlee & Associates that supported that claim, as did also a reference to the issue in the report of Eric Martin & Associates.
As I have also noted, Ms Boraiah discussed this with a colleague and concluded that, having regard to the Units Plan which was, of course, a registered document, the wall proposed in the development was “within the Unit 3 boundary”.
There is no doubt that Ms Boraiah had regard to this part of the representation of the plaintiffs. She made a decision; that it turned out to be wrong does not necessarily justify judicial review. As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77, “[t]here is no error of law simply in making a wrong finding of fact”.
Subsequently, and in circumstances that I do not completely understand, the plaintiffs provided to Ms Boraiah a further document from John W Foxlee & Associates, to which he annexed a further survey which showed that the Units Plan was not correct and, in particular:
[T]he centre of the two storey western wall of the building of Unit 3 is on the Unit boundary and not the face is partly indicated in [the] Units Plan
Ms Boraiah then contacted the architects for Air Marshall Evans and Mrs Evans to advise them of this and the email continued:
Can you please check the unit boundary measurements and lodge an amended application accordingly.
In the meantime, as the time limited for commencing these proceedings was rapidly expiring (it probably expired on or about 25 October 2008), the proceedings were commenced on 24 October 2008.
The application for an amendment of the development proposal was lodged on 9 December 2008, and the decision of Mr Hawke made on 14 May 2009.
As a result, the plaintiffs sought to amend the application by which these proceedings were commenced and applied to me on 15 May 2009 for leave to do so. That application was not opposed.
The amendments were designed to recognise the amendment that had been made to the development approval and to preserve the position of the plaintiffs, should it be found that the changed development proposal as approved became the operative decision and to challenge it accordingly.
The plaintiffs applied for costs. ACTPLA opposed the application.
The plaintiffs submitted that, as one of their complaints, encroachment, had been found to be justified, they had been vindicated and, as the amendment had been made during the pendency of the proceedings, they should have the costs of the necessary amendments.
ACTPLA submitted that there had been no reviewable error in the decision originally made on the plaintiffs’ representations so far as encroachment was concerned; it was only when the further survey of John W Foxlee & Associates was provided that the error became apparent. Thus, the original challenge could not have succeeded and there should be no order that ACTPLA pay the costs of and occasioned by the amendments.
I do not consider that the plaintiffs can be criticised for commencing those proceedings, notwithstanding that the issue of encroachment was being investigated. In view of the impending expiry of the time limit for commencing those proceedings, I do not think that the plaintiffs can be criticised for commencing them within time; I did not hear ACTPLA strenuously to submit to that effect, though it was submitted that the plaintiffs could have telephoned Ms Boraiah before they commenced these proceedings.
I have to say, I am not sure what that would have been achieved ultimately, given the chronology revealed above.
On 16 October 2008, Mr Forman had, in fact, advised ACTPLA that the plaintiffs were taking legal advice and reserved their rights to take action.
Mr Erskine pointed out that, in the original decision of Ms Boraiah, she merely stated:
The Units Plan 312 indicated the Unit 3 boundary. The proposed brick wall is within the Unit 3 boundary.
While that was a rather indirect reference to the issue, Mr Erskine submitted that this could be construed as if the material which the plaintiffs had included in their representations had not been considered. See Minister for Immigration and Multicultural Affairs v Yusuf at 330-1 (Gleeson CJ), 338 (Gaudron J), 346 (McHugh, Gummow and Hayne JJ). This, he submitted, justified the challenge.
It seems to me, in the light of these events, that the plaintiffs were justified in commencing the proceedings when they did and they had a reasonable basis for claiming that their complaint about encroachment had not been considered. Whether they would have succeeded on that ground is not for me to say.
I also consider that they had a reasonable basis at the time for challenging the decision of Mr Hawke, given the uncertainty surrounding the processes of the Planning Act.
That ACTPLA, as it properly should have done, amended the development approval, on material that had been supplied by the plaintiffs, did require an amendment to the proceedings. In my view ACTPLA should pay those costs of the amendment and those thrown away because of the amendment.
Mr Erskine submitted that these costs should include the obtaining of the survey from John W Foxlee & Associates. That was obtained after the decision had been made by Ms Boraiah and before the proceedings had been commenced.
In my view, those costs should not be included in the costs payable to the plaintiffs.
I shall so order.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013
Counsel for the plaintiffs: Mr C M Erskine SC
Solicitor for the plaintiffs: Colquhoun Murphy
Counsel for the first defendant: Mr G C McCarthy
Solicitor for the first defendant: ACT Government Solicitor
Date of hearing: 21 March 2011
Date of judgment: 23 August 2013
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