Gingell v ACT Planning and Land Authority (Administrative Review)
[2016] ACAT 10
•18 February 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GINGELL v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2016] ACAT 10
AT 98/2015
Catchwords: ADMINISTRATIVE REVIEW – standing - material detriment - what constitutes – planning – use and enjoyment of land
Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 6, 9, 29, 53
Planning and Development Act 2007 ss 156, 407, 408A, 419
Cases:Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Bakas & Ors & ACT Planning and Land Authority & Ors [2011] ACAT 43
BDH Projects v ACT Planning and Land Authority & Ors [2010] ACAT 37
Daniel/Prior v ACT Planning and Land Authority [2006] ACTAAT 16
Kourpanidisand Planning and Land Management & Perin Property Group Pty Ltd [1997] ACTAAT 184Gingell v ACT Planning & Land Authority & Anor [2007] ACTAAT 2
Murragong Nominees Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 60 LGRA 210US Tobacco Co v Minister for Consumer Affairs (1998) 20 FCR 520
Watson v ACT Planning and Land Authority & Ors (No. 2) [2010] ACAT 7
Tribunal: President E Symons
Date of Orders: 18 February 2016
Date of Reasons for Decision: 18 February 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 98/2015
BETWEEN: NORM GINGELL
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL: President E Symons
DATE:18 February 2016
ORDER
The Tribunal orders that:
Upon being satisfied that it does not have jurisdiction to review this application, the Tribunal orders that the application be dismissed.
………………………………..
Ms L Crebbin - General President
for and on behalf of the Tribunal
REASONS FOR DECISION
Norm Gingell (‘the applicant’), by application filed with the ACT Civil and Administrative Tribunal (‘the tribunal’) on 21 December 2015, has sought review of a decision of the ACT Planning and Land Authority (‘the respondent’) to approve subject to conditions Development Application No 201527029 (‘the DA’). The DA sought to vary the lease on Block 15 Section 12 Weetangera (‘the subject property’), to demolish the existing dwelling and to construct four attached dwellings and associated works. The subject property is located at the street address of 1 Gibbes Place in Weetangera.
The DA as approved on 8 October 2015 is for the following development:
(a) the demolition of existing dwelling; construction of four attached dwellings; and associated works; and
(b) a variation to the purpose clauses of the Crown Lease to permit a maximum of four (4) dwellings on the block.
The applicant and his wife had made a representation to the respondent in relation to the DA on 12 March 2015 as permitted under section 156 of the Planning and Development Act 2007 (‘Planning Act’). The applicant did not receive a copy of the Notice of Decision until 9 December 2015.
On 5 January 2016 two people filed an application in the tribunal for review of the same decision. It was allocated the file number AT 2 of 2016. The standing of the applicants in that matter is not in contention.
However, the issue of this applicant’s standing to bring this application was raised at a directions hearing on 27 January 2016. Directions were made for the filing by the respondent of an application challenging the standing of the applicant (‘the issue’) and the filing of both parties’ Statements of Facts and Contentions. The issue was listed for hearing on 12 February 2016.
Both parties complied with the directions. The respondent sought in its Application for Interim or Other Orders filed 3 February 2016 that the Application for Review of a Decision lodged 21 December 2015 be dismissed on the basis that the tribunal does not have jurisdiction to review the application because the applicant lacks standing.
At the hearing on 12 February 2016 the applicant represented himself and Ms Sonia Gasser, of the ACT Government Solicitor, represented the respondent. The respondent provided written submissions and both parties made oral submissions. At the conclusion of the hearing the Tribunal reserved its decision. This is the Tribunal’s decision.
In this decision a reference to ‘tribunal’ is to the tribunal generally or a previous tribunal and a reference to ‘Tribunal’ is to the tribunal member hearing the application.
Standing - the General Principles
In an earlier tribunal decision of Watson v ACT Planning and Land Authority & Ors (No. 2)[1](‘Watson’) that tribunal set out the following general principles in relation to standing.
[1] [2010] ACAT 7 at [7]
The principle of standing requires that a person who seeks to enforce the public law must have a special interest in the subject matter of the action. As Gibbs J stated in Australian Conservation Foundation v Commonwealth (‘ACF’)[2] it is quite clear that:
an ordinary member of the public who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of the public right or to enforce the performance of public duty.[3]
His Honour considered that it was necessary for the would-be litigant to have a special interest in the subject matter of the action. However, an interest ‘does not mean a mere intellectual or emotional concern’.[4] Rather:
a person is not interested within the meaning of the rule, unless he is likely to gain some advantage other than the satisfaction of righting a wrong, upholding a principle or winning a contest if his action succeeds or suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails.[5]
[2] (1980) 146 CLR 493 at 526
[3] (1980) 146 CLR 493 at 526
[4] (1980) 146 CLR 493 at 530
[5] (1980) 146 CLR 493 at 530
The standing principle was further elaborated by the Full Court of the Federal Court of Australia in US Tobacco Co v Minister for Consumer Affairs[6] as follows:
The term ‘interest’ has long been an expression used within the law with respect to parties so as to require an involvement with the case greater than the concern of a person who was a mere intermeddler or busybody. ... The necessary interest need not be legal, proprietary, financial or other tangible interests. Neither need it be peculiar to the particular person.
The Applicant’s contentions
[6] (1998) 20 FCR 520 at 527
In his Statement of Facts and Contentions the applicant contends in relation to his standing that:
(a)he has met all of the time based statutory provisions relating to standing;[7]
[7] Applicant’s Statement of Facts and Contentions at [22]
(b)the Government’s decision to designate the area in which he holds land as in the RZ2 zone establishes that he has a special interest in the planning outcomes in his RZ2 neighbourhood;[8]
(c)his interest is different to the general public as he is potentially affected to a greater extent;[9]
(d)the great majority of Weetangera properties have been allocated to the RZ1 Suburban zone where a planning objective is to protect the character of established single dwelling houses by limiting the extent of change that can occur, particularly with regard to the original pattern of subdivision and density of dwellings, whereas the contrasting planning objective in the RZ2 Suburban core zone is to provide opportunities for redevelopment by enabling a limited extent of change with regard to the original pattern of subdivision and the density of dwellings. He has a special interest in ensuring that the respondent‘s approvals in the Weetangera RZ2 zone are consistent with the Territory Plan;[10]
(e)his claim to have a special interest is further enhanced by the very similar characteristics of his area in the RZ2 zone with those in the vicinity of the subject property;[11]
(f)material detriment arises from the consequences for him of the respondent approving a redevelopment which is not consistent with the Territory Plan;[12]
(g)he will directly experience substantial detriment from enjoying life on his land in Weetangera RZ2 because of the significant time and effort that has to be devoted to monitoring and assessing ACTPLA’s notifications;[13]
(h)material detriment for him includes the personal stress, the undermining of trust that ACTPLA can be relied upon to take a balanced view in assessing development proposals, seeing the degradation of environmental qualities that made the area attractive to him in the first place and now to developers, and how people are discouraged from engaging in the available appeal processes and demoralised when ACTPLA lets developers ‘get away with murder’;[14]
(i)the above demonstrate the sources of detriment to the applicant’s enjoyment of his land and the detriment is adverse, of substance and real and not trivial or imagined;[15]
(j)two of the objects of the ACAT Act, section 6(e) - to enhance the quality of decision making under legislation and section 6(f) – to encourage, and bring about, compliance in decision making under legislation should enable the tribunal to take a wider view of ‘material detriment’ than the very narrow view sought by the respondent;[16] and
(k)the Tribunal’s assessment of the applicant’s standing, as stated at [34] in Watson, take into account a wider range of considerations than the distance between his residence and the subject land.[17]
[8] Applicant’s Statement of Facts and Contentions at [38]
[9] Applicant’s Statement of Facts and Contentions at [39]
[10] Applicant’s Statement of Facts and Contentions at [40], [41], [42]
[11] Applicant’s Statement of Facts and Contentions at [43]
[12] Applicant’s Statement of Facts and Contentions at [49]
[13] Applicant’s Statement of Facts and Contentions at [52]
[14] Applicant’s Statement of Facts and Contentions at [52]
[15] Applicant’s Statement of Facts and Contentions at [55]
[16] Applicant’s Statement of Facts and Contentions at [56], [57]
[17] Applicant’s Statement of Facts and Contentions at [12]
In relation to contention (k) the applicant said that the respondent had previously alleged that the DA decision was not likely to have an adverse impact on his use or enjoyment of the land due to the fact that he held land approximately 600 metres in a direct line from the subject property and approximately 1.4 kilometres by road. The applicant drew the Tribunal’s attention to the DA Finder App, which allows the user to select areas within various radii from 125 metres to 1.5 kilometres of the user’s location, and to PlanningAlerts[18] which he said aims to enable shared scrutiny of what is being built and demolished in people’s communities. He said Planning Alerts provides the user with the option of receiving alerts on DAs with a radius of 200 metres, 800 metres or 2 kilometres. He contended that the distances used by the DA Finder App and PlanningAlerts suggest the size of areas of legitimate concern to individual citizens and further the 600 metres referred to by the respondent, is unremarkable even by the radius selections currently available on the respondent’s own DA Finder App.[19]
[18] Applicant’s Statement of Facts and Contentions at [32],[33],[34]
The Applicant agreed at the hearing that, essentially, the adverse effects he alleged were:
(a)ACTPLA approving a redevelopment which is not consistent with the Territory Plan;
(b)time and effort in monitoring and assessing ACTPLA notifications;
(c)personal stress;
(d)the undermining of trust in ACTPLA;
(e)the degradation of environmental qualities;
(f)demoralisation and discouragement of people engaging in appeal processes; and
(g)incentive for developers ‘trying it on’.
The Respondent’s contentions
In the respondent’s Statement of Facts and Contentions the respondent contends that:
(a)the applicant does not have a legislative basis for seeking a review of the decision as he has not demonstrated that he will suffer material detriment as defined in paragraph 419(1)(a) of the Planning Act as a result of the approval of the DA;[20]
(b)the applicant will not suffer material detriment as defined in the Planning Act as the decision is not likely to have an adverse impact on his use or enjoyment of his land;[21]
(c)any material detriment on the applicant’s use and enjoyment of his land or otherwise must flow from the decision to approve the DA;[22] and
(d)as the applicant is a natural person he does not have objects or purposes as are required by paragraph 419(1)(b) of the Planning Act.[23]
[20] Respondent’s Statement of Facts and Contentions at [18], [20]
[21] Respondent’s Statement of Facts and Contentions at [23]
[22] Respondent’s Statement of Facts and Contentions at [25]
[23] Respondent’s Statement of Facts and Contentions at [26]
In response to the allegations of material detriment made by the applicant, the respondent acknowledged that while the issue of special interest may be relevant in considering whether to join a party to another extant application pursuant to section 29 of the ACAT Act, the applicant was not seeking to be joined as a party to another application. The respondent says that the applicant’s alleged special interest based on the RZ2 zoning of a part of Weetangera which includes the subject property and where the applicant holds land, does not necessarily mean that the applicant will suffer a material detriment. Zoning is not reflected in the legislated criteria for standing, and it does not follow that a person with property in a zone and precinct necessarily suffers material detriment as a result of, or has a special interest in relation to, development within the same zone and precinct.
In relation to the proximity of the applicant’s property to the subject property, the respondent did not deny that any number of people may take an interest in development applications in the Territory and that under section 156(1) of the Planning Act, anyone may make a written representation about a development application that has been publically notified. The relevant consideration is whether the person would suffer material detriment or have a special interest in the development application decision. The respondent contends that the distance between the applicant’s property and the subject property demonstrates a greater degree of remoteness in the impact that the decision may have on the applicant’s use and enjoyment of his land. Further, in the tribunal decision of Bakas & Ors & ACT Planning and Land Authority & Ors[24] one of the applicants, who resided as close as 300 metres away, was found not to have standing as she was unable to demonstrate that she would suffer material detriment.
[24] [2011] ACAT 43
As to the applicant’s contention that he has a special interest in ensuring that the respondent’s approvals in the Weetangera RZ2 zone are consistent with the Territory Plan, the respondent submitted that its statutory function is to approve or not approve development applications according to the law and a person seeking review of a development application must have standing to do so and be able to demonstrate that such approval has or is likely to have an adverse impact on the applicant’s use or enjoyment of the land or that he would have a special interest.[25]
[25] Respondent’s Submissions on standing at [23],[24]
As to the nature of detriment alleged by the applicant the respondent contends that none of the alleged effects: inconsistency with the Territory Plan; time and effort in monitoring and assessing ACTPLA notifications; personal stress; undermining of trust in ACTPLA; degradation of environmental qualities; demoralisation and discouragement of people engaging in the appeal process and the incentive for developers to ‘try it on’, appear to relate to, or be adverse impacts on, the applicant’s use or enjoyment of his land and no evidence has been put forward to support these effects.
As to the applicant’s assumption that the respondent has erred in its decision to approve the DA, this has not been established. It is for the tribunal in AT16/2 to consider the correct or preferable decision in respect of this DA and until that has occurred, it cannot be accepted that those alleged effects are likely to occur. Further, it is not clear how that would amount to a material detriment on the applicant’s use or enjoyment of the land.
Issue
The issue for the Tribunal to determine in whether the applicant has standing is whether he meets the legislated criteria.
The Statutory Provisions
In Watson the tribunal stated:
The question of whether a person is affected or what is a sufficient interest is to be determined by the context of the legislation that gives the right. In this case the right is to object to a development proposal and consequently to appeal to the Tribunal against approval of a development application.[26]
[26] Watson v ACT Planning and Land Authority & Ors (No. 2) [2010] ACAT 7
Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (‘the ACAT Act’) provides:
9. Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
The Planning Act is an authorising law as it provides as follows:
408AApplications for review
An eligible entity for a reviewable decision may apply to the ACAT for review of the decision.
‘Eligible entity’ for a reviewable decision is defined in section 407 of the Planning Act as:
eligible entity, for a reviewable decision—
(a)means an entity mentioned in schedule 1, column 3 for the decision; and
Item 4 of schedule 1 provides for the following eligible entity:
| column 1 item | column 2 reviewable decision | column 3 eligible entities | column 4 interested entities | |
| 4 | decision under s 162 to approve a development application in the merit track, whether subject to a condition or otherwise, if— (a) the application was required to be notified under s 153 and s 155, whether or not it was also required to be notified under s 154; and (b) the application is not exempted by regulation. Note A decision under s 162 is reviewable only to the extent that the development proposal— (a) is subject to a rule and does not comply with the rule; or (b) is not subject to a rule. (see s 121 (2)). | an entity if— (b) the approval of the development application may cause the entity to suffer material detriment | the approval-holder | |
‘Material detriment’ is defined in section 419 of the Planning Act as follows:
419Meaning of material detriment
(1)In this Act:
material detriment, in relation to land—an entity suffers material detriment in relation to land because of a decision if—
(a)the decision has, or is likely to have, an adverse impact on the entity’s use or enjoyment of the land; or
(b)for an entity that has objects or purposes—the decision relates to a matter included in the entity’s objects or purposes.
(2)However, an entity does not suffer material detriment in relation to land because of a decision only because the decision increases, or is likely to increase, direct or indirect competition with a business of the entity or an associate of the entity.
NoteMaterial detriment is used in sch 1.
...
Subsection 419(b) is not relevant in the present case as the applicant has brought the application to review the decision to approve the DA in his personal capacity.
Consideration of the Issue
It is not in dispute that the applicant has met the time based statutory provisions in relation to standing and that he is an eligible entity. What is in dispute is whether the approval of the development application may cause the applicant to suffer material detriment. For the applicant to have standing the Tribunal needs to be satisfied that the DA may cause him to suffer material detriment.
The tribunal in Watson stated at [31] that in order to establish standing, the applicant must demonstrate not only that the potential effect is adverse, but also that it is an effect of some substance. That tribunal relied upon the following comments of President Curtis in Kourpanidisand Planning and Land Management & Perin Property Group Pty Ltd [27] (‘Kourpanidis’) to establish standing:
21. The potential effect must not only be adverse; it must, in my view, also be an effect of some substance. Having regard to the consequences that flow under the legislation from the lodging of an objection, the potential effect must not be merely incidental or inconsequential. ….
24. There must be a potentially tangible effect, but the range of possible effects must also be assessed in the light of the planning context in which the issue arises. Too narrow a view should not be taken of the range of possible interests, having regard to the variety of relevant issues that arise in planning matters. Thus, for example, where the amenity of a neighbourhood arises as an issue in respect of a development application it may be that any person who is able to show that the amenity which he or she presently enjoys would be adversely affected in a substantial way by approval of the proposal has a relevant interest. In Murragong Nominees Pty Ltd v Melbourne & Metropolitan Board of Works the plaintiff was held to have a sufficient interest in respect of a proposal to amend a planning scheme to re-zone certain land on the basis that a person whose use of his or her own land was constrained by a particular zoning arrangement under a scheme was considered to have a public right in maintaining the integrity of the zones if it is proposed to alter them (at p. 227). On the other hand, the range of persons who may be potentially affected by a design and siting proposal may differ from the range of persons potentially affected by a change of lease purpose. What is a sufficient interest to entitle a person to lodge an objection to a development application must therefore depend on the facts of the particular case. It would be unwise to attempt to lay down general rules, but it is, I think, clear that the range of potential interests go beyond financial or other material interests and may extend, in appropriate cases to aesthetic interests or to matters that affect the objector's enjoyment of life, having regard to the breadth of the concept of amenity in planning matters:
[27] [1997] ACTAAT 184
President Curtis also stated in Kourpanidis:
22. Thus it is clear, both from an examination of the context and from the application of general principles, that the affected interest must be more than mere intellectual or emotional interest: Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493.
"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it." (per Gibbs J at p531)
23. It is also clear that the scope of the test to determine whether a person may be affected depends on the legislative context in which the test occurs and the nature of the matter in respect of which a persons claims to be potentially affected: Australian Conservation Foundation v Environment Protection Appeal Board [1983] VicRp 34; (1983) 1 VR 385.
The respondent submitted that it was not clear how most of the effects alleged by the applicant satisfy the principles applied by the tribunal in Watson at [31-32] and, in particular, how the alleged effects would:
(a)not only be adverse, but be of some substance, not merely incidental or inconsequential;
(b)be more than an intellectual or an emotional interest;
(c)be a detriment of a real and not trivial or imaginary kind; or
(d)not be subjective, but must be a detriment ‘in an objective and reasonable sense’.[28]
[28] Respondent’s submissions at [31]
The applicant urges the Tribunal not to take a narrow or restrictive view of standing. The Planning Act does not state what material detriment is. The applicant told the Tribunal he was not here ‘for the fun of it’. While he conceded that, if the DA is approved, the detriment to the immediate residents in and around the subject property in Gibbes Place would potentially take a different form to his, as it could include parking, loss of privacy and the visual assault of a building of such bulk and scale so out of character with the immediate neighbourhood; the applicant submitted that his interest is not merely incidental or inconsequential, nor is it an intellectual or emotional interest. His interest is based on what is happening in the Weetangera RZ2 zone because of the respondent’s decisions and this is impacting on him detrimentally as he holds land in the same RZ2 zone in Weetangera. He told the Tribunal his interests were not as a member of the general public or as a resident of Weetangera generally; rather they were aligned with the very specific parts of the RZ2 zone, namely Gibbes Street where the subject property is located and Smith Street where he lives. He said his interests differed from those of residents on Springvale Drive, Southwell Street and Shumack Street which are also in the RZ2 zone as the characteristics of the subject property are very different to those properties. He said the characteristics of the subject property and Smith Street, where he lived, are very similar and include the gently undulating topography, the nature of existing housing and vegetation and the quiet loop streets and cul-de-sacs with no footpaths.
In his Statement of Facts and Contentions he said one aspect of material detriment arises for him from the consequences of the respondent approving a redevelopment which is not consistent with the Territory Plan. The applicant referred to three decisions as evidence, namely [2006] ACTAAT 16[29], 30 May 2006, where the respondent had approved the construction of seven dwellings at 38 Kinleyside Crescent and where the tribunal found numerous inconsistencies with the Territory Plan, set aside the respondent’s decision and refused the DA. The applicant said that four dwellings were subsequently built on that land. Secondly the applicant referred to [2007] ACTAAT 2[30], 29 January 2007 where the respondent had approved the erection of two detached houses comprising a single storey and a dwelling with a second storey component at 27 Smith Street. The tribunal set aside the respondent’s decision and refused the development application. Thirdly, in [2010] ACAT 37[31], June 2010 the respondent had approved the erection of five attached two storey units fronting Belconnen Way and a detached sixth dwelling across the rear of the amalgamated blocks at 63 and 65 Belconnen Way. During tribunal proceedings the respondent advised it no longer supported its own decision and the tribunal approved a redevelopment of four single storey attached dwellings.
[29] Daniel/Prior v ACT Planning and Land Authority [2006] ACTAAT 16
[30] Gingell v ACT Planning & Land Authority & Anor [2007] ACTAAT 2
[31] BDH Projects v ACT Planning and Land Authority & Ors [2010] ACAT 37
The applicant also told the Tribunal that evidence was accumulating that developers were encouraged to ‘try it on’ in the Weetangera RZ2 zone. In support of this he told the Tribunal that the applicant for the DA for the subject property is the same applicant for DA 201527526 - a three unit development at 17 Smith Street, three blocks away from his house and the applicant for DA 201527636 at 36 Kinleyside Crescent is the same applicant as for DA 201528719 at 23 Bambridge Street.
The applicant told the Tribunal that the drawings provided in the consultation phase of the proposed development on the subject property provide prima facie evidence to any reasonable person with a little local knowledge, that the redevelopment might be inconsistent with the Territory Plan.
The applicant identified that the use and enjoyment of his land in the RZ2 zone was impacted by the significant time and effort that has to be devoted to monitoring and assessing ACTPLA’s notifications and this was a substantial detriment. While he did not have medical evidence to support the detrimental effect on him he told the Tribunal that ‘This was incredibly stressful activity and time consuming.’ Seeing the degradation of environmental qualities that made the area attractive to him in the first place he said, was also a substantial detriment.
The respondent contends that none of the alleged detrimental effects relied on by the applicant appear to relate to or be, adverse impacts on the applicant’s use or enjoyment of his land.
The applicant readily acknowledged that, unlike land holders located in close proximity to the subject property, his use and enjoyment of his land would not be detrimentally impacted by parking difficulties, loss of privacy and the visual assault of a building which he alleged was to be of such bulk and scale as to be out of character with the immediate neighbourhood.
Conclusion
Each case must be determined on its facts as to whether approval of the development application has, or is likely to have an adverse impact on use or enjoyment of land. The Tribunal accepts the applicant’s argument that an assessment of the applicant’s standing will take into account a wider range of considerations than distance between his residence and the subject property.
For the applicant to succeed he must demonstrate that he may suffer material detriment, that is that the approval has or is likely to have an adverse impact on his use or enjoyment of his land. It is not sufficient that the applicant holds land in the same RZ2 zone as the subject property.
The only evidence before the Tribunal of the impact on the applicant’s use and enjoyment of his land was the significant time and effort he had devoted to monitoring ACTPLA’s notifications and his stress. The Tribunal does not dispute that the applicant has suffered from stress and has spent a significant amount of time monitoring ACTPLA’s notifications and preparing for this hearing. His Statement of Facts and Contentions is testament to the time and attention he has given to this matter. However, there was no evidence of the actual or anticipated impact on his use or enjoyment of his land from the significant time and effort he has devoted to the matter and his stress.
Although the applicant has expressed a genuine concern about the impact on his land of a development approval on the subject property, the Tribunal is satisfied and finds that, in reality, none of these alleged effects referred to in [11] above actually relate, or may actually relate, to his use and enjoyment of his own land.
The Tribunal concurs with the respondent’s submissions that no evidence was put forward to support the contention that those various alleged effects may occur and that it is not objectively clear how the decision to approve this DA can have all of those effects.
Decision
After considering the parties’ submissions and for the above reasons the Tribunal’s decision is that the applicant has not demonstrated to the Tribunal’s satisfaction that the approval of the DA has any adverse impact on his use or enjoyment of his land.
Further, the applicant has not met the criteria of suffering a ‘material detriment’ in section 419 of the Planning Act which would enable him to be an ‘eligible entity’ with standing under section 408 to apply to the Tribunal for a review of the decision under section 9 of the ACAT Act.
For these reasons the Tribunal is satisfied that it does not have jurisdiction to review the application because the applicant lacks standing.
The Tribunal will dismiss the Application for Review of a Decision.
………………………………..
Ms L Crebbin - General President
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AT 98 / 2015 |
PARTIES, APPLICANT: | Norm Gingell |
PARTIES, RESPONDENT: | ACT Planning and Land Authority |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Ms E. Symons |
DATES OF HEARING: | 12 February 2016 |
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