Georgalis v ACT Planning and Land Authority
[2012] ACAT 1
•7 July 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GEORGALIS and ACT PLANNING AND LAND AUTHORITY
(Administrative Review) [2012] ACAT 1AT 122 of 2010
Catchwords: ADMINISTRATIVE REVIEW – Instrument of Policy Direction for remission of change of use charge for lease variation applications lodged between 1 June 2009 and 1 June 2010 – condition that a lease variation application be accompanied by a construction application – whether the late lodgement of the construction application met the requirement of the Policy Direction – interpretation of the term “accompanied by”: the appropriateness of the ordinary meaning, interpretation that best achieves the purpose of the instrument and the statutory context –the benevolent interpretation of legislation where its purpose is to encourage a class of activity – the parameters of “as soon as possible” in relation to a thing to be done where there is no specified time limit – operation of s151B Legislation Act 2001
List of legislation: Legislation Act 2001, ss, 57, 138, 139, 141, 142 & 151B
Planning and Development Act 2007, ss. 276, 277 & 278 and Division 9.6.3
List of Regulations: Planning and Development Regulation 2008, regs.175 & 177
Planning and Development (Reduction of Change of Use Charge) Policy Direction 2009 (No 1) Disallowable Instrument DI2009-137
List of cases: Amann Aviation Pty Ltd v Commonwealth (1990) 22 FCR 527
Botany Bay City Council v Remath Investments No. 6 Pty Ltd
(2000) 50 NSWLR 312Bowes v Chaleyer (1923) 32 CLR 159
Diethelm Manufacturing Pty Ltd v Commissioner of Taxation
(1993) 44 FCR 450
Kingsley’s Chicken Pty Ltd and Queensland Investment Corporation and Canberra Investments Pty Ltd [2000] ACTCA 9Project Blue Sky v Australian Broadcasting Authority
(1998) 194 CLR 355Re Islam [2010] ACTSC 147; (2010) 244 FLR 158
Swv Pty Ltd v Spiro Pty Ltd [2006] NSWSC 668
Totalizator Agency Board v Federal Commissioner of Taxation (1996) 139 ALR 644
Vines v Djordjevitch (1955) 91 CLR 512
Winkler v DPP (1990) 25 FCR 79
List of Texts: D Pearce and R Geddes, Statutory Interpretation in Australia
(7th ed, 2011)
Tribunal: Professor Peta Spender, Presidential Member
Date of Orders: 7 July 2011
Date of Reasons for Decision: 17 January 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 122 of 2010
BETWEEN:
NIKOLAOS & SONYA GEORGALIS
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL: Professor Peta Spender, Presidential Member
DATE: 7 July 2011
ORDER
1. The decision under review is confirmed
………………………………..
Professor Peta Spender
Presidential Member
REASONS FOR DECISION
THE APPLICATION
1. In an application filed with the Tribunal on 21 December 2010, Nikolaos and Sonya Georgalis ("the Applicants”) sought review of a decision made by the ACT Planning and Land Authority ("the Respondent" or “the authority”) on 7 December 2010 to impose a change of use charge (“CUC”) of $262,500 in relation to a development application (no. 201017857) pertaining to Blocks 29 and 30 Section 79 O’Connor.
BACKGROUND TO THE PROCEEDINGS
2. A lease variation may be subject to a CUC where a lease variation involving a change of use adds value to the lease. The CUC in the present case was determined by the Respondent in accordance with the formula in section 277 of the Planning and Development Act 2007 (“the Planning Act”) at the relevant time.[1] This provision required that the CUC was to be calculated by determining 75% of the added value of the variation to the lease, which is worked out by subtracting the Before Value (V2) from the After Value (V1) and multiplying the result by 75% i.e. (V1 – V2) x 75%.
[1] Republication 18
3.
Although the Applicants initially challenged the Before Value and the After Value relied upon by the Respondent in its notice of decision dated 7 December 2010, this contention was abandoned in the Applicants’ Facts and Contentions filed on
22 February 2011. Instead, the Applicants’ contentions focused upon the application of Disallowable Instrument DI2009-137 to the development application. If
DI2009-137 applies to the development application, the relevant rate of the CUC is reduced to (V1 – V2) x 50%.
The Legal Framework
4. A CUC is levied in accordance with Division 9.6.3 of the Planning Act. Pursuant to section 276 of the Planning Act at the relevant time, the authority was not to execute a variation of a nominal rent lease unless the lessee had paid a change of use charge worked out by the authority in accordance with section 277 of the Planning Act. As stated above, at the relevant time, the CUC was worked out at the rate of 75% of the increase in value brought about by the proposed change of use. However, section 278 of the Planning Act at that time allowed the authority to remit all or part of the CUC, as prescribed by regulation. Pursuant to regulation 175 of the Planning and Development Regulation 2008 ("the Planning Regulation") at the relevant time,[2] a CUC could be remitted by reg. 175(1)(a) where certain policy goals were promoted by the variation of lease and by reg. 175(1)(b) in a circumstance stated in a policy direction. Regulation 177 of the Planning Regulation allowed the Minister to make policy direction for the purpose of regulation 175(1)(b). Such a policy direction is a disallowable instrument.[3]
[2] Republication 22
[3] Reg. 177(2) of the Planning Regulation
5. The Applicants argued that Disallowable Instrument DI2009-137 (“the Instrument”) applies to the development application and to the reviewable decision in the present case.
6. The Instrument was made on 30 June 2009 and its relevant parts are set out below:
Planning and Development (Reduction of Change of Use Charge) Policy Direction 2009 (No 1)
...2Commencement
This instrument is taken to have commenced on 1 July 2009.
3Policy Direction
Pursuant to section 177 of the Planning and Development Regulation 2008
I make the following Policy Direction for the purposes of sections 175(1)(b)
and 175(2)(a) of the Regulations:
(1)this policy direction will apply only where all of the following conditions are fulfilled:
(a)an application for a variation of the purposes permitted under the lease has been lodged or will be lodged with the planning and land authority between 1 June 2009 and 1 June 2010;
(b)the application in section (1)(a) of this instrument is accompanied by a development application for the construction of a structure upon the leasehold which has been approved at the time the application under section (1)(a) of this instrument is made, or is subsequently approved (or approved subject to conditions) in substantially the same form; and
(c)the chief planning executive of the planning and land authority determines that the variation applied for in section (1)(a) of this instrument is reasonably relevant and proportionate to the development as proposed in the development application accompanying it under (1)(b);
(2)where the conditions set out in section (1) of this instrument are fulfilled, the planning and land authority shall remit any amount of the change in use charge that exceeds:
CUC = (V1 – V2) × 50%
Where
CUC, V1 and V2 have the same meanings as in section 277 of the Act;
(3)if the variation is prescribed under section 182 of the Regulations, section 182(2) shall apply to the amount remitted under Section (2) of this instrument.
(4)...
7.
In these reasons, the application referred to in section 3(1)(a) of the Instrument shall be referred to as a “Lease Variation Application” and the application referred to in section 3(1)(b) of the Instrument shall be referred to as a “Construction Application”. The Construction Application was also commonly referred to in the communications between the parties as a Design and Siting application.
Relevant Facts
8.
There is no dispute between the parties that the development proposal for the relevant site involved a Lease Variation Application and a Construction Application. On 13 May 2010 a pre-application meeting was conducted between representatives of the Applicants and the Respondent. At that meeting, sketch plans were provided which defined a proposed two-storey residential apartment block with basement parking on the consolidated subject site. According to the witness statement of Mr Purdon filed with the Tribunal on 9 June 2011, although those plans were adequate to the purpose of that meeting, they were not final plans because they were not fully dimensioned, did not contain some minor architectural details and were not supported by the technical plans and reports required for the approval.
9. On 28 May 2010, a Lease Variation Application (DA201017857) was lodged with the Respondent. Annexed to the Lease Variation Application were the plans previously shown to the Respondent at the meeting on 13 May 2010.
10. On 3 June 2010 at 4:29 pm the Construction Application (DA201017855) was submitted electronically. However in order to be “lodged” for the purposes of both the Instrument and the planning legislation, further steps were needed. In particular, on 8 June 2010 the documents and plans were formally uploaded onto the Respondent's computer system and a completeness check was conducted of the application. Finally, on 11 June 2010 an application fee was paid and therefore on that day the Construction Application was formally “lodged".
11. Pursuant to section 424 of the Planning Act, the Minister may determine fees for the Planning Act and a determination of fees is a disallowable instrument. The relevant disallowable instrument was DI2009-180 which operated from 1 August 2009 to 30 June 2010. This instrument set a fee for activities under Chapter 7 of the Planning Act which includes the provisions which apply to deciding development applications. According to section 57(3) of the Legislation Act 2001 (“the Legislation Act”), if a service is mentioned in a determination, the fee is payable before the service provided. Similarly, section 57(3) of the Legislation Act states that if the fee is payable in relation to a service mentioned in a determination and the fee has not been paid in accordance with the determination, no one is obliged to provide the service.
12. Therefore, the parties agreed that the completeness check performed by the Respondent and the payment of the application fee were necessary for the Construction Application to be formally lodged.
13.
To summarise, although various earlier dates were referred to in the evidence before the Tribunal, the parties agreed, and the Tribunal concurs, that the Lease Variation Application was formally lodged on 28 May 2010[4] and the Construction Application was formally lodged on 11 June 2010.[5]
The Hearing
[4] T 23 [3]
[5] T 24 [14]
14. A hearing was conducted by the Tribunal on 31 March 2011. At that hearing, the Applicants were represented by Mr Philip Walker of Counsel and the Respondents were represented by Mr David Mossop of Counsel. The Tribunal had before it the tribunal documents filed by the Respondent on 18 January 2011, facts and contentions filed by both parties and other documents tendered into evidence during the hearing. The Tribunal reserved its decision after the hearing on 31 March 2011 but during the course of its deliberations concluded that section 151B of the Legislation Act might be relevant to the application for review and therefore requested submissions regarding the application of that provision by a communication to the parties dated
15 April 2011. The submissions were subsequently provided by the parties and further hearings were conducted on 8 June 2011 and on 17 June 2011. At these hearings, further submissions were made and further evidence adduced, in particular, a witness statement made by Mr Purdon on 9 June 2011 and an agreed chronology. The Tribunal handed down its decision on 7 July 2011, with reasons to follow in due course. Those reasons are provided hereunder.
THE PARTIES' CONTENTIONS
The Applicants’ Contentions
15.
The Applicants contend that requirements of the Instrument have been complied with because, firstly, pursuant to section 3(1)(a) of the Instrument, a Lease Variation Application was lodged on 28 May 2010 which was "between 1 June 2009 and 1 June 2010". There is no challenge by the Respondent that the elements of section 3(1)(a) or section 3(1)(c) of the Instrument have been complied with.
16.
However, there is disagreement between the parties about the requirements of section 3(1)(b) of the Instrument and in particular whether the lodgement of the Construction Application on 11 June 2010 is sufficient for the purposes of that provision. This controversy centres upon the words "accompanied by" in section 3(1)(b) of the Instrument.
17.
The Applicants contend that the relevant time for assessing whether the Lease Variation Application is “accompanied by” the Construction Application is when the authority assesses the change of use charge. This assessment did not take place until 7 December 2010 and by that stage there was no doubt that the Construction Application accompanied the Lease Variation Application. The Applicants argued that it was not necessary for the Construction Application to accompany the Lease Variation Application at all times, but only at critical times. The Applicants pointed to the Explanatory Statement pertaining to the Instrument and to a press release issued by Minister Barr on 8 June 2009 which indicated that the Instrument implemented a policy which was designed to stimulate economic activity in the Territory and to redress difficult conditions in the credit market created by the global financial crisis.
18. The relevant parts of the Explanatory Statement are as follows:
Overview
The instrument sets out a policy direction pursuant to section 177 of the Planning and Development Regulation 2008 (the regulation) for determining the circumstances in which the planning and land authority (the authority) must apply the charge (sic) of use charge at rate of 50% for a lease variation, for 12 months from 1 June 2009.
The instrument is a Disallowable Instrument under section 177(2).
Policy objective
In the 2009-2010 Territory Budget the Government announced that it would introduce a range of initiatives to help to generate additional economic activity and investment, thus lessening the impacts of the global economic slowdown on ACT businesses and industry. One of the budget initiatives was that the Government would commence work on the codification of change of use charges. Pending the outcome of the work necessary to implement this reform, the rate of the change of use charge would be reduced from 75% to 50% for a period of 12 months from 1 June 2009.
19. The Applicants further argued that there is an obscurity[6] in section 3(1((b) of the Instrument which must be resolved by the Tribunal adopting an interpretation that would best achieve the purpose of the Instrument.[7] In this case, the purpose of the Instrument is to encourage construction in order to stimulate economic activity. An interpretation which allows the Construction Application to accompany the Lease Variation Application when the CUC is assessed promotes the policy of the Instrument and does no violence to the limited temporal operation of the words “accompanied by” because a time limit is imposed under the Planning Act for the approval of development applications. For example, in this case, pursuant to section 162 of the Planning Act, the development application would need to be assessed within 30 – 45 working days.
[6] Section 138 of the Legislation Act
[7] Section 139 Legislation Act and Re Islam [2010] ACTSC 147 (2010) 244 FLR 158 at [43], [44] and [202]
20. The Applicants assert that the Parliamentary draftsperson could have inserted an express timeframe in section 3(1)(b) of the Instrument within which the Construction Application was required to be lodged if the timeliness of that lodgement was critical. Moreover, the text of the Instrument contemplates expressly that a Construction Application may be approved prior to the operation of the Instrument, therefore there is no necessary requirement that the Construction Application be made during the operation of DI2009-137. The important point, according to the Applicants, is that there is no requirement that the Construction Application be lodged with a Lease Variation Application or that it accompanies the Lease Variation Application at all times.
21. Finally, the Applicants argued that the CUC is a form of impost and it is therefore appropriate to adopt the reasoning of French J (as he then was) in Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (“Diethelm”) as follows:
On the other hand an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is not to be given a narrow application. The liberal construction of provisions of Customs and Excise legislation allowing rebates on duties and excise payable in respect of fuel used in mining operations is one application of that general proposition - Collector of Customs v. Cliffs Robe River Iron Associates [1985] FCA 96; (1985) 7 FCR 271 at 275.[8]
[8] Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 at 457
22.
The Applicants submit that the same approach should be applied to the construction of the remission of the CUC in this case.
The Respondent's Contentions
23. The Respondent argues that the Instrument means what it says in that it nominates a period of its operation in section 3(1)(a) i.e. 1 June 2009 to 1 June 2010 and requires that the Construction Application accompany a Lease Variation Application made within that period. Therefore, based the text of the Instrument, the Construction Application must be made by 1 June 2010 in order to accompany the Lease Variation Application which must be lodged within that time.
24. The Instrument expressly states that the Lease Variation Application must be lodged within the relevant period although the Instrument contemplates that a Construction Application may have been lodged prior to the commencement of the operation of the Instrument, the Respondent contends that the use of the term "accompanied by" in section 3(1)(b) is necessary because it has to deal with two situations i.e. where the Construction Application is lodged with the Lease Variation Application and where the Construction Application has already been approved and a copy of it simply accompanies the Lease Variation Application.
25. The Respondent argued that the Instrument had a limited temporal scope because it was a stimulus measure designed to deal with the short-term effects of global financial crisis, therefore it focuses on a limited period i.e. 1 June 2009 to 1 June 2010, when the global financial crisis was occurring, but that is now ‘long passed’. It was a stimulus measure rather than a benevolent handout and is designed to achieve a stimulus effect to reward those who "get their act together" sufficiently and bring their commitment forward within the time stated in section 3(1)(a) in order to stimulate the economy. The Respondent argued that the Applicants’ interpretation might defuse the stimulus effect by allowing it to be spread over an indeterminate period of time.
26. Although the Applicants urged the Tribunal to consider the Explanatory Statement, the Respondent argued that not much weight can be given to the purpose of the Instrument because it is a broad statement of policy and one cannot qualify the clear statement in the Instrument about its temporal operation by reference to policy considerations. An analysis of the purpose of the instrument, as stated by the Explanatory Statement, does not assist in resolving the two competing interpretations about the timing of the lodgement of the Construction Application.
27. Moreover, the Respondent considered that section 141 of the Legislation Act precluded the Tribunal from taking into account the Minister Barr's press release of 8 June 2009.
28.
The Respondent also considered that the interpretative principle articulated by
French J in Diethelm does not apply to the current case because the interpretation favoured by the Respondent here does not hinder the underlying policy of the Instrument. However, even if Diethelm was applied in this case, a beneficial interpretation would require strict adherence to the time frame because the purpose of the Instrument is to stimulate economic activity within a limited period.
29. When pressed by the Tribunal to articulate the meaning of the term "accompanied by", Counsel for the Respondent indicated that it means ‘going with’ and the use of that text in the Instrument indicates a clear link between the Construction Application and the Lease Variation Application.
CONSIDERATION OF THE ISSUES
30. In interpreting the Instrument, the primary task of the Tribunal is to apply section 139 of the Legislation Act in order to discern the interpretation that best achieves the purpose of the legislation.[9] The Tribunal must find the meaning of the Instrument because two competing but plausible interpretations have been put forward by the parties.[10]
The Text of the Instrument
[9] Kingsley’s Chicken Pty Ltd and Queensland Investment Corporation and Canberra Investments Pty Ltd [2000] ACTCA 9 at [40]
[10] Section 138 of the Legislation Act
31.
In determining this issue, the interpretive task must begin with close attention to the text of the Instrument. This requirement of the general law is also articulated in section 141(2)(a) of the Legislation Act, which refers to the desirability of being able to rely upon the ordinary meaning of the Act having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole.
32.
In the current case, the Instrument is clearly temporally delimited, in that it states in section 3(1) that the policy direction will apply only where the following conditions are fulfilled and in section 3(1)(a) that the Lease Variation Application must be lodged between 1 June 2009 and 1 June 2010. In this case, the Lease Variation Application was lodged within that period but the question is whether it was "accompanied by" a Construction Application.
33. The Oxford English Dictionary defines “accompany” in relation to things as: ” to go with or alongside; to be a partner or complement to” and more generally as “to be present or occur at the same time as”. However, it is clear that the term "accompanied by" does not literally mean simultaneously, or in the language used by the Federal Court in Winkler v DPP,[11] "in the same envelope". In interpreting that term in the context of documents, their Honours stated:
Counsel concede that the phrase “accompanied by” is not to be read literally, in the sense of being required to be in the same envelope.[12]
[11] (1990) 25 FCR 79
[12] (1990) 25 FCR 79 at 96.
34. However, when interpreting the meaning of the phrase “accompanied by”, although an act (here the act of lodging the Construction Application) need not be done at exactly the same time as another act (here the act of lodging the Lease Variation Application), when must the second act be done in order in order to say that it “accompanies” the first act and consequently satisfies the terms of the Instrument and the remission of the CUC? How do we determine the permissible duration of the expression "accompanied by"?
35. In certain contexts, a lapse of several days may still be interpreted as one act “accompanying” another. For example, one would say that the first ship of the First Fleet that arrived at Sydney Cove in January 1788 was "accompanied by" other ships that arrived several days later. However, it does violence to the interpretation of the plain language of the Instrument in the present case to say that a Lease Variation Application was “accompanied by” a Construction Application lodged 14 days later and 10 days after the maximum period stated in the Instrument for lodgement of the Lease Variation Application.
36. The Tribunal rejects the Applicants’ submission that sections 3(1)(a) and 3(1)(b) of the Instrument, when read in combination, constitute an obscurity for the purposes of section 138(a) of the Legislation Act.
37.
Therefore, in the Tribunal's view, the relevant text of the Instrument does not amount to an obscurity for the purposes of section 138 of the Legislation Act and an interpretation of the ordinary meaning of the text would require the Construction Application to be lodged in closer proximity to the Lease Variation Application than in the present case in order to satisfy the requirement that the Lease Variation Application is "accompanied by" the Construction Application.
The Statutory Context
38. Section 141(2) of the Legislation Act requires the Tribunal to consider the context of the Planning Act, the Planning Regulation and the Instrument as a whole.[13] The statutory context is important in determining the meaning of the words "accompanied by" because the Instrument and the planning legislation as a whole contemplate timeliness and often strict adherence to explicit statutory timeframes.
Purpose
[13] Re Islam [2010] ACTSC 147; (2010) 244 FLR 158 at [33]; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]
39. In applying section 139 of the Legislation Act, the Tribunal is also satisfied that the interpretation that would best achieve the purpose of the Instrument is an interpretation that requires the Construction Application to be lodged by 1 June 2010. The Tribunal is permitted to consider the Explanatory Statement pursuant to section 142 Table 142 item 4 of the Legislation Act. Although the Explanatory Statement does not directly rebut the Applicants' arguments about interpretation, it does make two express statements in paragraphs 1 and 3 that the change of use charge would be reduced to 50% for a period of 12 months from June 2009. That does not necessarily contemplate a reduction of 50% in December 2010.
40. The overall purpose of the Instrument is to create an economic stimulus which, on the Respondent's interpretation, required developers to "get their act together" within a short time frame and which was designed to alleviate the effects of the global financial crisis, which has now passed or, on the Applicants’ interpretation, is a provision which should be interpreted beneficially so as to provide assistance to developers to allow them to flexibly bring construction projects forward to provide a long-term benefit. Although the Tribunal does not agree that the global financial crisis has "long passed", the Instrument and Explanatory Statement both contemplate that the policy direction would operate within a short period of time, in anticipation of a codification of the change of use charges.
41. However, the Tribunal agrees with the Respondent that ascertaining the purpose of the Instrument does not clearly assist the Tribunal in resolving the narrow issue that is before the Tribunal in the present case, nor does the ascertained purpose clearly favour one interpretation over another.
42. Further, in the present case the alleged failure to comply with section 3(1)(b) was a relatively short period of time - 10 to 14 days. Therefore the Tribunal must carefully consider whether the so-called benevolent interpretation that was adopted by Justice French J in Diethelm applies in the present case. The Tribunal agrees that the CUC operates as a form of revenue, which is imposed at varying levels depending upon the particular policy of the government at the time. Therefore, prima facie, the approach followed by French J in Diethelm would apply since the Instrument was created for the purpose of encouraging construction in order to deflect the effects of the global financial crisis. This would lead to a principle of construction which requires the exemption to be construed liberally.[14]
[14] Totalizator Agency Board v Federal Commissioner of Taxation (1996) 139 ALR 644 at 660 per
43. However Hill J in Totalizator Agency Board v Federal Commissioner of Taxation referred to the case law in this area as standing for an "unexceptionable proposition" as follows:
Where parliament has enacted legislation to encourage a particular activity, for example legislation which gives particular concessions to the mining industry, the legislation must be construed so as to promote parliament's purpose and not so as to detract from the purpose.[15]
[15]
44.
Moreover, his Honour warned that parliament's purpose is to be promoted by construing the exemption item in accordance with its ordinary meaning and not by seeking to give it a particular meaning favourable to a party.[16]
[16]45. The ordinary meaning of the Instrument is discussed above, and although it may be tempting to apply a benevolent interpretation so as to provide a slight bit of leeway to the Applicants, to do so would violate the plain meaning of the words of the Instrument. Moreover, even a benevolent interpretation would recognise the importance of timeliness, which is reflected in the words in the Instrument. Therefore, in the Tribunal's view, even a benevolent interpretation would require strict adherence to the 1 June 2010 deadline, all the more so when the context of the ACT planning legislation is taken into account.
46. Therefore, an analysis of the text of the Instrument, its statutory context, its purpose and the so-called benevolent interpretation would lead to a conclusion that the Respondent’s decision of 7 December 2010 should be confirmed. This conclusion is not displaced by a consideration of section 151B of the Legislation Act, as will be discussed hereunder.
Section 151B of the Legislation Act
47. As stated above, the task of the Tribunal is to determine the meaning of the Instrument that best achieves the legislative purpose. Section 151B of the Legislation Act might assist the Tribunal is discerning that meaning. That provision states as follows:
151BDoing things for which no time is fixed
(1) This section applies if—
(a) under an Act or statutory instrument, something must or
may be done; but(b) no time is provided for doing the thing.
(2) The thing must or may be done as soon as possible and as often
as needed.
48. During its deliberations after the hearing on 31 March 2011, the Tribunal concluded that it would be assisted by a consideration of the application of section 151B of the Legislation Act to the present case. In the Tribunal's view, prima facie, section 3(1)(b) of the Instrument did not state a time for lodging a Construction Application and, as discussed above, although the term “accompanied by” does provide some parameters to the interpretation of the subsection, it does not constitute the provision of a time and therefore section 151B of the Legislation Act might assist in interpreting the Instrument.
49. The Tribunal invited submissions by the parties on this point. Both parties considered that the provision was inapplicable, although the Respondent argued in the alternative that it applied.
50. The Applicants considered that nothing in the Instrument required or permitted the Applicants to do anything.
51. The Respondent considered that section 151B had no application because the Instrument stated a time (i.e. 1 June 2009 to 1 June 2010) within which the Construction Application might be lodged. In particular, the Respondent argued that when section 3(1)(b) is interpreted in the context of section 3(1)(a) which immediately precedes it, the Construction Application must be one that accompanies the Lease Variation Application at the time that it is lodged. Although, the Respondent warned, the decisions in other contexts must be applied with caution, it nevertheless submitted that the interpretive problem posed in the present case is more analogous to cases concerning development application such as Botany Bay City Council v Remath Investments No. 6[17] than the extradition cases such as Winkler v DPP[18] relied upon by the Tribunal. As a consequence, it submitted that the Construction Application must accompany the Lease Variation Application at the time of lodgement of the Lease Variation Application. Therefore, a time is provided for lodgement of the Construction Application and, hence, the requirement for the application of section 151B of the Legislation Act in section 151B (1)(b) is not satisfied.
[17] (2000) 50 NSWLR 312
[18] (1990) FCR 79
52. However, in the alternative, the Respondent argued that section 151B(2) applied which required to the thing to be done (i.e. the lodgement of the Construction Application) as soon as possible and as often as needed.
53. The Tribunal is not persuaded by the Applicants’ arguments because the Applicants ‘must’ or ‘may’ lodge the Construction Application in order to get the benefit of the remission of the CUC under the Instrument. Similarly, the Tribunal is not satisfied that a contextual reading of section 3(1)(b) of the Instrument leads to the conclusion (as argued by the Respondent) that a time is provided for the lodging of the Construction Application under that subsection. The subparagraphs of section 3 are not co-dependent, therefore the provision of a time in section 3(1)(a) does not lead to the conclusion that time is provided in section 3(1)(b). The Botany Bay case is useful in applying a substantial compliance test to determine whether a development application is "made" where there has been a failure to provide documents which were required to accompany other documents in making the application. However, the Tribunal considers that, although the substantial compliance test posited by the NSW Court of Appeal in Botany Bay might be of value in other contexts, the test in section 151B of the Legislation Act is clearer and more readily applied in the present circumstances.
54. Following on from the Tribunal’s request for s151B of the Legislation Act to be considered in the present case, additional evidence was adduced in the form of a witness statement by Robert Purdon. In that witness statement, Mr Purdon stated that he acted as promptly as was reasonably possible to coordinate and obtain documentation from a number of consultants who were preparing drawings and reports for the development application. He further stated that it was an especially busy time of year both for him and all the other consultants in the construction industry. He stated that the deadline for the lodgement of the plans on 1 June 2010 meant that most persons associated with drawing plans were fully occupied during the period. On behalf the Applicants, he had stressed the urgency of the matter with each of the relevant consultants and he nominated six consultants that needed to be consulted in order to lodge the Construction Application. The elements of the work were not completed until 3 June 2010 at which point all the documents were submitted to the Respondent.
55. The Tribunal has concluded that no time is fixed by section 3(1)(b) of the Instrument, therefore section 151B(2) of the Legislation Act applies so the lodgement of the Construction Application must or may be done as soon as possible and as often as is needed. The Tribunal must therefore decide what the term "as soon as possible" requires.
56. Pearce and Geddes have stated that the expression "as soon as possible" does not require that whatever it is that has to be done must be carried out as soon as anyone could possibly do it. Citing Amann Aviation Pty Ltd v Commonwealth,[19] the authors contend that the expression means “as soon as possible in the circumstances which prevail and apply to the party concerned”.[20] Although some cases have referred to the expression as meaning "within a reasonable time," particularly Starke J in Bowes v Chaleyer,[21] Pearce and Geddes considered that this interpretation seems too generous to the person obliged to carry out the activity.[22]
[19] (1990) 22 FCR 527 at 558
[20] D Pearce and R Geddes, Statutory Interpretation in Australia (7th ed, 2011) at [12.17] p 382
[21] (1923) 32 CLR 159 at 193
[22] D Pearce and R Geddes, Statutory Interpretation in Australia (7th ed, 2011) at [12.17] p 382
57. In Bowes v Chaleyer the High Court had before it a contract for the sale and shipment of goods, “Half as soon as possible. Half in six months.” Isaacs and Rich JJ regarded “as soon as possible” as “somewhat more stringent than ‘a reasonable time’”:[23]
[23] (1923) 32 CLR 159 at p.175
58. In Swv Pty Ltd v Spiroc Pty Ltd[24] Barrett J in the New South Wales Supreme Court considered Bowes v Chaleyer and Vines v Djordjevitch[25] and concluded as follows::
In neither of these High Court cases was the meaning of “as soon as possible” central to the decision. But the passages I have quoted are sufficient to illustrate four basic propositions: first, the words “as soon as possible” take their meaning from the context in which they are used; second, they do not indicate the greatest degree of speed humanly achievable; third, they import a requirement of reasonable expedition or such despatch as is reasonably practicable; and, fourth, a “reasonable time” marks the very outer limit of “as soon as possible”.[26][24] [2006] NSWSC 668
[25] [1955] HCA 19; (1955) 91 CLR 512
[26] [2006] NSWSC 668 at [58]
59. Mr Purdon's evidence does not prove that the lodging of the Construction Application was done as soon as possible. Applying the criteria used by Barrett J in Swv and Isaacs and Rich JJ in Bowes v Chaleyer and relying upon an objective standard, the evidence does not establish more than that the act was done within a reasonable time, not the more stringent test established by s151B of the Legislation Act. The evidence establishes that that the Applicants were aware of the deadline but the deadline was missed. It does not establish the requisite “reasonable expedition” which would be required in the context.
60. Accordingly, section 151B of the Legislation Act does not assist the Applicants because the Tribunal is not satisfied that the Construction Application was lodged “as soon as possible”.
61. In reaching its conclusion about the proper interpretation of the Instrument, the Tribunal notes that it did not rely upon the media release by Minister Barr dated 8 June 2009. In this respect, the Tribunal notes upon the comments made by Penfold J in Re Islam as follows:
the purpose [of legislation] is to be discerned from the legislation itself and the context in which it was enacted. That context extends to the relevant parliamentary debates and other explanatory material of various kinds but does not in my view extend to consideration of what individual legislators were thinking.[27]
[27] Re Islam [2010] ACTSC 147; (2010) 244 FLR 158 at 166 [28]
CONCLUSION
62. The Tribunal has concluded that, properly interpreted, DI2009-137 required that the Construction Application be lodged by or on 1 June 2010 in order to obtain remission of the change of use charge under the Instrument. This interpretation of the Instrument is derived from the ordinary meaning of the words of the Instrument, the purpose of the Instrument, the statutory context and section151B of the Legislation Act. Consequently, DI2009-137 does not apply to the change of use charge in this case.
63. The Tribunal therefore confirms the decision under review.
..………………………………..
Ms L. Crebbin, General President on behalf of
Professor Peta Spender, Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT: NIKOLAOS & SONYA GEORGALIS
RESPONDENT: ACT PLANNING AND LAND AUTHORITY
COUNSEL APPEARING: APPLICANT: Mr P Walker
RESPONDENT: Mr D Mossop
SOLICITORS: APPLICANT: J S O’Connor & Harris & Co
RESPONDENT: ACT Government Solicitor
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER: Professor Peta Spender, Presidential Member
DATE/S OF HEARING:
31 March 2011, 8 June 2011, 17 June 2011
PLACE: CANBERRA
DATE/S OF DECISION: 7 July 2011 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
Sundberg J
Totalizator Agency Board v Federal Commissioner of Taxation (1996) 139 ALR 644 at 654-655
per Hill J
Totalizator Agency Board v Federal Commissioner of Taxation (1996) 139 ALR 644 at 655 per
Hill J
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