Fry v ACT Planning and Land Authority (Administrative Review)
[2025] ACAT 13
•28 February 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FRY v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2025] ACAT 13
AT 133/2024
Catchwords: ADMINISTRATIVE REVIEW – conditional approval of development application – approval surrendered – application for review of decision dismissed – subpoena and subpoena objection dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 32
Planning Act 2023 s 211
Cases cited:Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60
Jones v Stone [1894] AC 122
Mainore Pty Ltd v ACT Planning and Land Authority & CIC Australia Pty Ltd [2011] ACAT 24
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1
Tribunal:Senior Member Dr W J Neville
Date of Orders: 28 February 2025
Date of Reasons for Decision: 28 February 2025
Date of Publication: 7 March 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 133/2024
BETWEEN:
ROSE FRY
Applicant
MICHAEL BOYLE
Party Joined
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL:Senior Member Dr W J Neville
DATE:28 February 2025
ORDER
The Tribunal orders that:
The Review Application filed 2 December 2024 is dismissed.
The subpoena issued by the Applicant, and the objection to the subpoena by the party joined, are dismissed.
The hearing date for the review on 11 March 2025 is vacated.
Absent any application being filed within seven days, there should be no order as to costs.
………………………………..
Senior Member Dr W J Neville
REASONS FOR DECISION
Overview
On 1 November 2024, the ACT Planning and Land Authority (the Authority) issued conditional approval for a Development Application (“DA”) regarding a property owned by Mr Michael Boyle in Ainslie, ACT. Mr Boyle was joined as a party to the proceeding.
On 2 December 2024, the Applicant, Ms Rose Fry, filed an Application with this Tribunal to review the conditional approval of Mr Boyle’s DA. The only relief sought was that “the development approval be set aside”. Formally, there was no relief sought in relation to the reasons upon which the Authority made its decision. Yet, it is those reasons and the Authority’s decision upon them that is the focus of the Applicant. Again, I note that her Review Application formally seeks no relief in relation to the reasons, but only that “the development approval be set aside”.
Between 2 December 2024 and 6 February 2025, multiple interim Applications were filed by Mr Boyle. Relevantly and summarised, they seek that:
(a)Ms Fry’s Review Application be dismissed; and
(b)a subpoena issued by her on 22nd January 2025, directed to Mr Boyle to produce a range of documents, also be dismissed.
By letter dated 6 February 2025, the Authority advised Mr Peter Hawke, of Habitat Drafting, on behalf of Mr Boyle, that it had accepted the surrender by Mr Boyle of the conditional approval that issued on 1 November 2024. The Authority further advised in this letter that the conditional approval “has ended and can no longer be relied upon.” The Authority referred to section 211(2)(d) of the Planning Act 2023 (ACT) (the Act) regarding the ending of approvals by “surrender”.
The Respondent to the Review Application is the Authority. As noted above, Mr Boyle was joined as a party to that Application.
Both the Authority and Mr Boyle say that, in view of the surrender of the Development Application, the Review Application is otiose and inutile (my words). Put another way, the surrender, which has been accepted by the Authority as noted above, renders the Review Application superfluous. The Respondent and Mr Boyle also say that to allow the Review Application to continue in the circumstances where there has been a relevant surrender under the Act, would also be against the principles and objects of the Tribunal’s own legislation for matters to be determined simply, quickly, inexpensively and informally “as is consistent with achieving justice.”[1]
[1] See ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 6 and 7
Ms Fry says (through her partner, long-time lawyer Mr Vermeesch) that while the surrender must be accepted, the decision upon which the development was based, remains effectively “on foot.” Ms Fry’s concern is that that decision could be a spring-board (my word) for any future Development Application. Mr Vermeesch accepts that such a concern is somewhat speculative but is nonetheless a possibility. Mr Vermeesch accepts that if the Review Application is dismissed, there is no utility in the subpoena objection raised by Mr Boyle in his Interim Application, filed 4 February 2025, being prosecuted and it, too, should be dismissed. It would also follow that the subpoena itself should be dismissed.
On 12 February 2025, the Authority wrote to the Applicant, enclosing a copy of the surrender letter, and invited the Applicant to discontinue the Review Application. Self-evidently, the Applicant has not taken up that invitation and the Review Application remains on foot.
For the following reasons, the Review Application must be dismissed, and in turn the objection to the subpoena Application (and the subpoena on which it is based) should also be dismissed.
Parties’ submissions
At the hearing on 19 February:
(a)At the request of the Tribunal, the Applicant and the Authority were to file a 2-page summary or outline of their respective submissions that were made orally at the hearing; and
(b)the lawyer for the joined party (Mr Boyle), Ms White, came with an outline of submissions. The outlines of submissions for each of the parties are set out below. Not all submissions complied with the formal directions regarding, for example, “double-spacing” or length. They have been reproduced with slight editing only as to length and similar, non-substantive matters.
Applicant’s outline of submissions
The Applicant’s outline of submissions was as follows:
1. The primary issue for determination is whether in the circumstances of this matter the Tribunal should exercise its discretion to summarily dismiss the application for review on the basis of alleged futility following the ending of the development approval on the approval’s surrender (as accepted by the respondent on 6 February 2025 and, consistent with Tribunal’s note in its order of 4 February, advised the respondent to the applicant and the Tribunal on 12 February).
2. The relevant circumstances include: (i) the approval decision subject to review stands (cf the duration of the approval); (ii) the decision at Tpp35-38 (cf its reasons) embodies errors of principle, eg a finding that the existing secondary structure is a garage when in fact it is a dwelling (Tp36 para 2); (iii) those errors of principle reflect a general policy approach of the respondent: eg T pp85-87, respondent’s submissions 13 January; (iv) the respondent is likely to follow the same flawed approach embodied in the decision subject to review in relation to any similar proposed development; (v) in contrast to [2004] ACTAAT 16 at [3-4], the proponent has not stated that he does not wish to proceed with the proposal, has not offered an undertaking to not do so and there is no consent to Tribunal orders to refuse the development approval (nor has there been any relevant permissive statutory change); rather, the proponent feels harassed into surrender because of the Tribunal proceedings: thus there is a prospect of the proponent seeking to proceed with the proposal following disposition of the proceedings; (vi) if the current approval were reinstated following the respondent’s withdrawal of its acceptance of the surrender, the applicant would have no right to review by the Tribunal; (vii) if the proponent were to seek a further similar development approval, there is no assurance the applicant will be given, or be able to avail herself of, any opportunity to make an objection to the respondent, nor that she will have , or be able to exercise, any consequential right to seek review by the Tribunal to address the matters the subject of the present proceedings.
3. In the circumstances, the application for review continues to have practical utility in enabling the Tribunal’s substantive determination of the significant matters of principle in issue, as per the applicant’s submissions lodged 11 and 28 January, that well might not otherwise be able to resolved in the applicant’s interests. The Tribunal’s completion of its review would be consistent with the objects in s 6(d), (e) and (f) and the principles in s 7 of the ACAT Act.
4. The authorities do not establish that following a surrender the Tribunal must be satisfied of a ground in s 32(1) of the ACAT Act and must exercise its discretion to dismiss. In particular, obiter comments in the Mainore case [2011] ACAT 24 and the appeal [2013] ACTSC 96 suggesting surrender results in futility need to be understood in the context that, following the respondent’s application for dismissal for futility, with potential ‘punitive’ costs consequences ([2013] ACTSC 96 at [99]), the applicant stated an intention to discontinue. The Tribunal dismissed the application for review under s 56(d) having regard to the intended discontinuance and the Court upheld that approach. The relevant ratio is confined accordingly. The case was essentially a costs dispute.
5. The proper approach is to assess whether in all the circumstances of the particular matter there is no practical utility to the review consequential on the surrender and dismissal is appropriate.
6. Any feeling of the proponent of vexation does not establish that the application for review is vexatious in the relevant sense. If the proceedings have caused vexation that is a regrettable incident of the proper pursuit of the applicant’s right of review, not its purpose.
7. If the Tribunal does not dismiss the application there is an issue whether the Tribunal should set aside the subpoena issued 23 January. The Tribunal should not do so for the following reasons. (i) The subpoena readily satisfies the low threshold of apparent relevance, having regard to the matters in issue as identified in the applicant’s submissions lodged 28 January and (the at least) apparent relevance of the subpoenaed documents to those matters (eg the findings of fact sought at para 2 of those submissions). (ii) The party joined has not discharged their onus of establishing oppression. There is evidence the party joined feels vexed but no evidence of oppression in the relevant sense, only an assertion that the applicant is unable to comply because currently overseas.
Respondent’s Outline of Submissions
The Respondent’s outline of submissions was as follows (citations omitted):
1. These submissions are made pursuant to the Tribunal’s request on 20 February 2025, following the preliminary hearing on the Party Joined’s application to dismiss the matter, that parties file a 2-page summary of their submissions and authorities.
2. In making a decision on the dismissal application, the Tribunal should have regard to:
(a)The ACAT Objects and Principles, including seeking to resolve applications as quickly as is consistent with achieving justice, ensuring procedures are as simple, quick and inexpensive as consistent with achieving justice and implement so as to resolve the issues between the parties so costs are proportionate to the importance and complexity of the subject matter of the proceeding.
(b)The need to exercise great caution before terminating an action.
3. The Party Joined was granted development approval, which is the subject of review in the current proceedings, but has since surrendered that approval, thereby ending that approval (notwithstanding that it has not yet come into effect). There is thus no development approval in place that would permit the development to occur, and undertaking development without approval, or other than in accordance with an approval, would give rise to a controlled activity. To proceed with the proposed development would require a new development application to be made and approved under the new legislative regime which has since come into force.
4. The surrender of the development approval renders the subject matter of the proceedings ‘nugatory’. Where ‘the project to which approval is given by the decision under review will not proceed because the proponent of the project has either abandoned it … continuation of the appeal in this case would be an exercise in futility and serve no purpose’, and causes the review application to become frivolous and vexatious. To continue to hear the proceedings would have ‘no practical effect’, ‘no purpose would be served’ by continuing the application, and be a waste of time and resources.
5. The Tribunal can and should dismiss the Application for Review pursuant to s 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
Joined Party’s Submissions
Mr Boyle’s outline of submissions was as follows (citations omitted):
1. [T]hat because the Development Application has been surrendered and can no longer be relied upon, there is no utility in hearing the Application.
2. This issue was considered in Mainore Pty Ltd v Planning and Land Authority and CIC Australia [2011] ACAT 24 (17 March 2011) which held that “no orders of that nature would be made as the subject matter if the proceedings ceased to exist”, and “the surrender of the development application rendered the subject matter of the proceedings nugatory”.
3. CIC Appealed the ACAT Decision (CIC Australia Limited v Planning and Land Authority ACT SCA 37 of 2011). The bulk of the appeal related to the ACAT orders relating to costs.
4. Penfold considered whether in circumstances where an applicant had not withdrawn its application for review or discontinued the proceeding but the subject matter of the review has ceased to exist, the proper exercise of power to dispose of the proceedings is an order pursuant to s32(b) of the ACT Civil and Administrative Act 2008 (ACT). Penfold J held that ACAT had the power to dismiss an application under 56(d) of the ACAT Act even if the application could be dismissed under section 32 of the Act.
5. The Applicant opposed the Development Application. The Application has now been surrendered and is of no effect.
6. It would be futile to waste further resources of the Tribunal in reviewing the decision in these circumstances.
Other matters - Application to set aside Subpoena
7. Mr Boyle has applied to have the subpoena issued by the tribunal on behalf of the Applicant (the Subpoena) set aside pursuant to Section 41(6) of the ACAT Act.
8. The Subpoena requires Mr Boyle to produce documents for an unspecified period including advertisements or other offers for use of any of the premises, agreements for any use of any of the premises, including any license or lease agreements, receipts or other records of payments received fir providing any of the promises for accommodation and banking or other financial records concerning payments received for providing any of the premises for accommodation.
Submissions
9. Mr Boyle submits that the subpoena should be set aside for the following reasons:
It lacks any legitimate forensic purpose and is oppressive
10. The subpoena is oppressive. An approval of a development application is prospective and deals with the future use of land. The application is for a review of a planning decision. The matters raised are in respect to alleged current non-compliance by Mr Boyle and are not relevant to any issue in the proceedings.
It is for an improper purpose
11. Part 12.2 of the Planning Act 2023 (the Planning Act) provides a process for any person to make a complaint about a controlled activity. Part 12.3 of the Planning Act provides the relevant authority with powers to make orders in respect to non-compliance. Despite the Applicant’s stated awareness of the asserted non-compliance on the subject land for over 30 years, to date no complaint has been made to the relevant authority.
12. In his statement of facts and contention submitted to the Tribunal on 11 February 2025, Mr Boyle complained about the conduct of the Applicant, including:
(a)harassing Mr Boyle’s tenants and seeking private information regarding Mr Boyle and his family;
(b)In respect to Mr Boyle’s tenants; blocking them from exiting Mr Boyles property, leaving notes under the windscreens of their vehicles, attempting them to coerce them to move to the Applicant’s secondary residence;
(c)entering Mr Boyles property without permission;
(d)Photographing the interior of Mr Boyles property without his permission;
(e)disclosed personal information about Mr Boyle and his family and associates to the planning authority;
(f)asserting that Mr Boyle is guilt of tax fraud and CGT avoidance.
13. Mr Boyle submits that the Subpoena is evidence of further harassment and intrusion on his privacy and should be set aside.
Consideration
In conformity with the operation of section 211(2)(d) of the Act, as the Authority’s letter confirmed, in the light of the surrender accepted by the Authority, the conditional approval “has ended and can no longer be relied upon.” As such, there is no work for that approval to do, and as accepted by Mr Vermeesch (for the Applicant) during the hearing, as a result of the surrender and its acceptance, Mr Boyle (or anyone on his behalf) cannot do any work on the Ainslie property without some later process that conforms with the statutory pathway, and possible imprimatur of the Authority – should it ever be sought.
The foundational ground of Ms Fry seeking to keep her review on foot and for there to be a final hearing of it is that there might, at some time in the future, be another Development Application by Mr Boyle, or presumably by some other, later owner. Respectfully, to continue the Review Application on the basis of what might occur, at some unknown time in the future, but also noting that there may never be any future or further DA at all, is so speculative that it would render any view of the Tribunal as necessarily, and dangerously, “advisory.” Moreover, circumstances may change, on one side of the street or the other, between now and whenever (if ever) any future DA might occur, which would necessarily render the current Application completely superfluous.
As the Authority argued at the hearing, any new DA will always be determined, not by any past decision, but in accordance with the Act and the circumstances of that new Application. This too, in my view, also militates strongly against the Review Application proceeding at the currently scheduled hearing next month.
The objects and principles of ACAT’s principal legislation, the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), also militate against the Review Application continuing. A hearing of it would necessarily consume scarce resources that could and should be utilised in resolving or determining a real dispute, not a theoretical one, which the Review Application necessarily is now in the light of the surrender. In my view also, it assists no one to review or examine at all the interstices of the (past or present) motives and actions of any of the parties, which Ms Fry sought to have the Tribunal do in certain respects.
The objects and principles of the ACAT Act reflect now long-standing High Court jurisprudence regarding the importance of tribunals of fact being highly cognisant of the impact of using scarce public resources and the flow-on effects on other litigants.[2] In my view, a hearing regarding the possible impact, at some unknown time in the future, about events which may not actually eventuate, readily comes within the cautions articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University (AON v ANU).[3] Indeed, at [105], the plurality cautioned about reliance upon simply “arguable” contentions, which properly characterise Ms Fry’s contentions here about possible future use of the now defunct DA.
[2] See Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 including the comments by French CJ at [5]; at [14] his Honour referred to the need to the Court [and Tribunal] to address “the real questions in controversy”; [24]. I need only note but not discuss detailed comments in the plurality judgment (excluding Heydon J’s separate judgment beginning at [118]) to similar effect beginning at [97]ff.
[3] Ibid.
Put another way, given the surrender of the Development Application, and its acceptance by the Authority, there is no substantive dispute remaining. The Applicant opposed the DA. The Authority granted the Application on conditions. The same Authority has now accepted the surrender of the Application. In effect and in reality, given her opposition to the Application, the Applicant has secured what she wanted, namely that the Application will no longer proceed. Accordingly, there is no legal or justiciable dispute still on foot. That is now the legal reality. In a somewhat different context, so much was accepted by this Tribunal in Mainore Pty Ltd v ACT Planning and Land Authority & CIC Australia Pty Ltd (Mainore Pty Ltd),[4] and in turn by the ACT Supreme Court in the appeal from that decision, in CIC Australia Ltd v ACT Planning and Land Authority (CIC Australia).[5] In the latter decision, Penfold J confirmed that the appropriate course was the dismissal of the proceeding under section 32(b) of the ACAT Act.
[4] [2011] ACAT 24
[5] [2013] ACTSC 96 at [120]
Further, in the Applicant’s Application for Review, filed 2 December 2024, the only relief sought was an Order that “the development approval set aside.” The surrender has achieved precisely what the Applicant sought. Moreover, given the single prayer for relief, there has been no formal Application to amend to seek further “relief”, such as to review the reasons for the decision, effectively in its entirety. As argued at the recent hearing, the Applicant is “concerned” that although the surrender has been accepted by the Authority, its decision remains. Respectfully, this is a legal non sequitur; nothing flows from this contention, nor can it. The Development Application is now defunct. Any new Application, if ever filed, must be considered on its terms and the facts and circumstances then prevailing, and not on the facts and circumstances that prevailed in 2024. Anything now sought by the Applicant, in the light of the surrender, is necessarily an exercise in legal supererogation.
In view of the reasons already given, it is unnecessary to consider in great detail the principles regarding dismissing the Review Application on a summary dismissal basis, as articulated by the High Court in Spencer v Commonwealth of Australia[6] (Spencer). For current purposes, it is sufficient to note the following principles from that case and a number of Federal Court authorities.
[6] Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
In Three Rivers District Council v Governor and Company of the Bank of England (No 3) (Three Rivers), which was cited with obvious approval by French CJ and Gummow J in their joint judgment in Spencer, Lord Hope said:[7]
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, ... that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. (citations omitted; emphasis added)
[7] Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1
In the Full Federal Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (Jefferson Ford), Gordon J (as her Honour then was) said, “where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary.”[8] (emphasis added)
[8] Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 (2008) 167 FCR 372 at [127]. See also Finkelstein J at [23] in Jefferson Ford.
On the facts of the matter before this Tribunal, there is no “factual or evidentiary dispute” that requires formal adjudication. On the basis only of a theoretical possibility of some future Development Application, which may never occur, the Applicant seeks a review of the original decision of the Authority. This is in circumstances where the Applicant had earlier made representations to the Authority regarding the now defunct DA. I note again that the Applicant accepts that the joined party cannot undertake any relevant work on his property without a new DA, which has been through a new regulatory approval process. This acknowledgment confirms that the Applicant is “protected”, as it were, from any unauthorised work being undertaken on Mr Boyle’s property. Accordingly, there cannot be any current, “specific factual or evidentiary dispute that makes a trial [or hearing] necessary.”
Much earlier in time, Lord Halsbury confirmed that summary disposal of a matter is an example of the principle of proportionality, in that the full procedure of a hearing can be avoided where its deployment would be disproportionate to what it would achieve.[9] In my view, a review hearing in the current matter is significantly disproportionate to what it might achieve, especially given the surrender of the Development Application. Whatever the reasons for it, that Application is now defunct. The issue of “disproportionality” articulated by Lord Halsbury is an early embodiment of now basic statutory principle applicable in all courts and tribunals for Applications to be determined simply, quickly, inexpensively and informally “as is consistent with achieving justice.”
[9] Jones v Stone [1894] AC 122 at [124]
Summarised from multiple decisions of the Federal Court of Australia, together with the comments by the High Court in Spencer and the House of Lords in Three Rivers (both noted above), ultimately, the court or tribunal must consider whether there are any real, as opposed to fanciful or theoretical, issues of fact or law that require proper determination at a trial. In my view, given the surrender of the DA, there are not. Indeed, as already stated, the only relief formally sought by the Applicant was that the “development approval be set aside.” The surrender of the DA, together with its acceptance by the Authority, clearly achieves this purpose. There being no other relief sought, it is substantively and procedurally otiose to allow the Applicant to seek further relief regarding reasons that supported a decision that has now been rendered nugatory.
In addition to these reasons, I prefer and accept the submissions of the Respondent Authority, and on behalf of Mr Boyle.
Summary & disposition
Summarised, the DA granted by the Authority on 1 November 2024, was surrendered by My Boyle, and accepted by the Authority, on 6 February 2025. By operation of section 211(2)(d) of the Act, the November 2024 Approval has ended and “can no longer be relied upon.” As such, the Applicant’s concerns about any possible work being done on Mr Boyle’s property are relevantly now unfounded because no such work can be done without a further Approval by the Authority, subsequent to the due statutory/regulatory process. Any concerns still held by the Applicant at that time, if that time ever comes, can be articulated then and put before the Authority. Any future or further Application is, at this time, entirely speculative.
The objects and principles that must guide the tribunal regarding any Application before it, set out in sections 6 and 7 of the ACAT Act, further militate against the Applicant’s Review Application proceeding. At its highest, such review, in the light of the surrender of the earlier Development Application:
(a)would be an entirely theoretical exercise and would serve no proper adjudicative function or purpose, cf Jefferson Ford; Three Rivers; Mainore Pty Ltd; CIC Australia;
(b)according to High Court authority in AON v ANU, and Spencer, would require the expenditure of scarce public resources on a theoretical dispute, with such resources more properly being directed to matters that require resolution and determination of actual disputes;
(c)would be contrary to principle regarding disproportionate weighing of a hearing against the possible outcome it might achieve, especially since the original DA is now defunct;
(d)would simply duplicate what the Applicant sought in her Review Application, namely that the DA be set aside;
(e)would seek to adjudicate a dispute where there are no factual or evidentiary issues to be determined, and which would, in any event, be of no import or effect (at the recent hearing, there was no submission that the earlier decision of the Authority would constitute some form of estoppel or res judicata); and
(f)any adjudication of the Review Application would be nothing more than an advisory opinion in circumstances where there is no evidence that there will (or might) be a further application, and if such Application is made, what the facts and circumstances at that time will (or might) be for the Authority to consider. Any future DA would require the Authority to consider the facts and circumstances then relevant, and not those in 2024 at the time of the original Application.
For the reasons given, the Review Application filed 2 December 2024 must be dismissed. It was agreed that if this was the Tribunal’s decision, the subpoena objection of Mr Boyle should also be dismissed, as should the subpoena issued by the Applicant, Ms Fry. Accordingly, to ensure that there are no lingering issues regarding any Application, the Order of the Tribunal is that all outstanding Applications be dismissed.
It follows that the hearing date for the review next month also needs to be vacated.
Absent any Application being filed within seven days, there should be no Order as to costs.
………………………………..
Senior Member Dr W J Neville
| Date(s) of hearing: | 19 February 2025 |
| Applicant: | Paul Vermeesch (authorised representative) |
| Solicitor for the Respondent: Solicitor for the Party Joined: | Sonja Gasser Lorraine White |
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