Fry v ACT Planning and Land Authority No.2 (Administrative Review - Costs)

In the case of Fry v ACT Planning and Land Authority No.2 (Administrative Review - Costs), the Tribunal addressed an application by Ms Fry to review a conditional approval of a Development Application. Ms Fry sought the setting aside of the development application, but did not formally challenge the reasons for the approval. Subsequently, the ACT Planning and Land Authority accepted the surrender of the approval, rendering the decision effectively nullified. Despite this, Ms Fry continued with her review application, prompting the Tribunal to consider whether it had jurisdiction to award costs under the amended Administrative Appeals Tribunal Act 2004 (ACT).

The legal issues before the Tribunal included whether it had jurisdiction to make a costs order under the amended ACAT Act, given the original review application was filed under the 2007 Planning Act. The Tribunal also had to determine whether the continued prosecution of the review application, despite the surrender of the approval, was just and reasonable under the principles of the ACAT Act and the common law.

In its reasoning, the Tribunal found that despite the legislative amendments, it had jurisdiction to make a costs order because the Applicant had, at least, an inchoate right to seek review when the decision was made. The Tribunal also noted the importance of time and the potential for a degree of serendipity in such matters. Furthermore, the Tribunal found that the continuation of the review application, after the approval had been surrendered, was disproportionate and not in line with the principles of efficiency, resources, and justice. The Tribunal concluded that it was just and reasonable to award costs to the Respondent and the third party, as Ms Fry's actions were seen as vexatious.

The Tribunal ordered that Ms Fry pay the ACT Planning and Land Authority $2,180 and the third party $5,500 within 30 days of the decision. This ruling underscores the importance of timely review applications and the consequences of pursuing a review that has become non-justiciable due to subsequent events.