Ginninderra Falls Association Inc v ACT Planning And Land Authority and Anor (Administrative Review)
[2017] ACAT 108
•14 December 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GINNINDERRA FALLS ASSOCIATION INC v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2017] ACAT 108
AT 51/2017
Catchwords: ADMINISTRATIVE REVIEW – planning and development – whether the applicant as an incorporated or association has standing to bring the application – whether section 70 of the Associations Incorporation Act 1991 requires an absolute majority or a simple majority for a special resolution to pass – whether the applicant’s standing relates to the association’s objects or purposes at the date of the reviewable decision or date of application – whether an applicant association’s grounds of review are confined by its objects – whether the Tribunal has jurisdiction to consider whether the development application was made in the wrong assessment track – legislative framework for determining whether an application was made in the wrong track
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 22Q
Associations Incorporation Act 1991 ss 30, 70
Planning and Development Act 2007 ss 54, 113, 114, 121, 124, 125, 162, 407, 408A, 419
Cases cited:Canberra Tradesman’s Union Club v Commissioner for Land and Planning [1998] ACTAAT 222
Glass v ACTPLA and Anor [2016] ACAT 96
Noah’s Ark Resource Centre Incorporated v ACTPLA [2017] ACAT 44
North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd [2014] ACAT 1
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1980) 3 ALD 74
Re Island Voice and Great Barrier Reef Marine Part Authority Magnetic Keys Ltd [1990] AATA 41
Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment [1986] AATA 203
Secretary to the Department of Social Security v Riley (1987) 17 FCR 99
List of
Texts/Papers cited: Pearce and Geddes, Statutory Interpretation in Australia (seventh edition)
Odgers’ Australian Senate Practice
Tribunal: Presidential Member G McCarthy
Senior Member A DaveyDate of Orders: 14 December 2017
Date of Reasons for Decision: 14 December 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 51/2017
BETWEEN:
GINNINDERRA FALLS ASSOCIATION INC
Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
RIVERVIEW DEVELOPMENTS PTY LTD
Party Joined
TRIBUNAL:Presidential Member G McCarthy
Senior Member A Davey
DATE: 14 December 2017
ORDER
The Tribunal orders that:
1.The application of the party joined for interim or other orders dated 13 November 2017 is dismissed.
2.By 22 December 2017 the applicant advise the respondent, the party joined and the Tribunal whether it presses a submission that the development application should have been made in the impact track.
3.In the event that the applicant advises that it presses a submission that the development application should have been made in the impact track, by 25 January 2018 the parties file and serve any further evidence relevant to that question.
………………………………..
Presidential Member G McCarthy
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
1.By application dated 4 September 2017, Ginninderra Falls Association Inc (Ginninderra) has applied for review of a decision dated 31 July 2017 made by the ACT Planning and Land Authority (ACTPLA) approving a proposal for an estate development plan for the subdivision of 296 single dwelling blocks and 20 multi-unit blocks for a total of 356 dwellings and associated works on Blocks 1469, 1606 in 1607, Section 0, Belconnen. The proposal is Stage 1 of a much larger estate development plan.
2.The parties agree that the decision under review accidentally omitted reference also to Blocks 1632 and 1633, Section 0, Belconnen. This omission can be addressed in final orders arising from Ginninderra’s application for review.
3.By interim application dated 13 November 2017, the party joined, Riverview Developments (ACT) Pty Limited (Riverview), applied for the following orders:
1. The application by Ginninderra be dismissed because it is not an “eligible entity” for the purposes of the Planning and Development Act 2007 (the P & D Act).
2. If the Tribunal does not make the first order sought, the Tribunal resolve the following question of law as a preliminary question:
Does the Tribunal have jurisdiction to review the correctness of the assessment track used to assess the development application which is the subject of Ginninderra’s application for review?
4.On 5 December 2017, the Tribunal heard the interim application. Mr Walker SC with Ms K Katavic appeared for Riverview. Mr S Onitiri appeared for Ginninderra. Mr Erskine SC with Dr D Jarvis appeared for ACTPLA.
Question 1 - standing
5.In North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd[1] the Tribunal set out the legal framework regarding the standing of an incorporated association to seek review of a decision to approve a development under section 162 of the P & D Act. The Tribunal’s statements are uncontroversial but relevant. We repeat them as follows:
[1] North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd [2014] ACAT 1
25. Pursuant to section 408 of the Planning Act, an eligible entity for a reviewable decision may apply to the ACAT for review of the decision. Schedule 1 sets out the requirements for eligible entity status for each of the reviewable decisions. In this case, Item 4 states that relevant reviewable decision is a decision under section 162 to approve a development application in the merit track whether subject to a condition or otherwise, if the application was required to be publicly notified. The requirements for eligible entity status are that:
(a)the entity made a representation under s 156 about the development proposal …; and
(b)the approval of the development application may cause the entity to suffer material detriment
26. There is no dispute that the applicant made a representation about the development proposal. The issue for determination in the present proceedings is whether the development application may cause the applicant to suffer material detriment.
27. The meaning of “material detriment” is set out in section 419 of the Planning Act. The relevant portion states as follows:
419 Meaning 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]
[2] North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd [2014] ACAT 1 at [25] – [27]
6.There was no suggestion in this case that section 419(1)(a) is applicable. The parties also agreed that Ginninderra’s standing turns upon whether the decision under review “relates to a matter included in [Ginninderra’s] objects or purposes”.
7.The parties agreed that the phrase ‘objects or purposes’ refers to the objects or purposes stated in an entity’s constitution. Regarding the objects in Ginninderra’s constitution, the relevant facts are as follows.
8.On 31 July 2017 when the decision under review was made, the objects (or objectives) provided, in broad terms, for the establishment of a Murrumbidgee - Ginninderra Falls National Park and matters associated with such a park.
9.On 3 August 2017, Ginninderra held a special general meeting at which it approved (or purported to approve on the submission of Riverview) a special resolution amending the objects of its Constitution after which the objects read as follows. The amendments are identified in bold text:
3.1 The objectives of the association are to
(a1) promote, engage in and ensure the conservation and protection of the environmental values, including biodiversity and heritage values, in the region surrounding the Ginninderra Falls, including the ACT.
(a2) promote the conservation of the built and natural environment in the West Belconnen and adjacent NSW region.
(a3) promote public awareness of the environment surrounding the Ginninderra Falls, in both ACT and NSW, by engaging and disseminating information to the public.
(a) establish a Murrumbidgee - Ginninderra Gorges National Park, or other protected or conservation area, by
(i)developing a detailed proposal for the new national park;
(ii)providing a strong regional forum;
(iia)advocating and progressing the conservation and protection of the environment in the West Belconnen and adjacent NSW area.
(iii)ensuring legislators, officials, current land-holders and the community are fully informed.
(b) support the management of the National Park, or other protected or conservation area, after it is established by
(i)promoting the National Park, or other protected or conservation area;
(ii)providing a community oversight of the day-today (sic) administration;
(iii)continuing to provide a forum to address issues of concern;
(iv)continuing to ensure legislators, officials and the community are fully informed.
10.Ginninderra and Riverview agreed that 20 members of Ginninderra were eligible to vote at the special general meeting; that 11 members voted at the meeting; and that the amendments were approved unanimously by those 11 members. The Tribunal inferred that the 11 members who voted were among the 20 members eligible to vote.
11.Section 30 of the Associations Incorporation Act 1991 (the AIA Act) permitted Ginninderra to amend the objects of its Constitution by special resolution. The parties agreed that, under section 30 of the AIA Act, a special resolution was the only manner by which the objects could be amended.
12.On 10 August 2017, Ginninderra lodged a notice setting out the alterations to its objects with the Registrar-General. Under section 30(3) of the AIA Act, the special resolution to alter the objects stated in Ginninderra’s Constitution took effect that day (if it took effect at all).
13.On 18 August 2017, Ginninderra received advice that its amended Constitution had been accepted and placed on the public register.
14.Section 70 of the AIA Act provides for the passing of a resolution of an incorporated association (and Ginninderra in this case) as a special resolution. It provides:
70 Special resolutions
A resolution of an incorporated association is taken to be a special resolution if—
(a) it is passed at a general meeting of the association, being a meeting of which at least 21 days notice, accompanied by notice of intention to propose the resolution as a special resolution, has been given to the members of the association; and
(b) it is passed by at least ¾ of the votes of those members of the association who, being entitled to vote, vote in person or, if the rules of the association permit voting by proxy, vote by proxy at the meeting.
15.There was no suggestion that Ginninderra had not complied with section 70(a). The argument turned upon compliance with section 70(b).
16.Riverview submitted that section 70(b) requires at least ¾ of the membership eligible to vote (i.e. at least 15 of the 20 members who were eligible to vote) to vote in favour of a special resolution in order for it to be passed (an absolute majority).
17.ACTPLA and Ginninderra submitted that section 70(b) requires at least ¾ of the membership eligible to vote who voted in person or by proxy (if Ginninderra’s rules had permitted voting by proxy) to vote in favour of a special resolution in order for it to be passed (a simple majority).
18.Ginninderra’s Constitution, clause 31, required all votes to be given personally (meaning it made no provision for voting by proxy), but that did not have any consequence for the purposes of the vote taken on 3 August 2017.
19.Mr Walker for Riverview referred to Odgers’ Australian Senate Practice to demonstrate that the requirement of an absolute majority is not unusual. He noted in his written submissions numerous authorities for the uncontroversial principle of statutory interpretation that all words in a legislative provision should be given meaning and effect. He submitted, by reference to the words “being entitled to vote”, that not less than ¾ of the members of the association who are entitled to vote must vote in favour of the special resolution in order for it to be passed.
20.On this interpretation, where only 11 of the 20 eligible members from Ginninderra voted in favour of the special resolution, the requisite ¾ majority was not achieved with the result that the resolution was not passed.
21.Mr Walker submitted that where the amended objects had not been (validly) passed, the objects in force prior to 3 August 2017 remained operative with the result that Ginninderra lacked (or lacks) standing to bring its application for review.
22.Conversely, Mr Walker accepted that if the amendments to the objects were validly passed, Ginninderra has standing to bring its application for review because it is tolerably clear that the decision relates to a matter included in its objects.
23.The Tribunal is not persuaded that section 70(b) of the AIA Act requires an absolute majority. There is no dispute that only members who are entitled to vote (for whatever reason) can validly vote on the special resolution. That is the effect of the words “being entitled to vote”. From that group of voters, section 70(b) requires ¾ “of those members of the association … who vote” (emphasis added) to vote in favour of the special resolution in order for it to be passed. Put another way, the opinions of those members of the association who do not vote, even if eligible to vote, are irrelevant for the purposes of section 70(b).
24.A construction giving rise to a requirement of an absolute majority would require only a statement that it be “passed by at least ¾ of the members of the association eligible to vote”. The words “the votes of those members of the association who … vote” would have no purpose or effect, contrary to the principles of statutory interpretation upon which Mr Walker relied, if section 70(b) were to be construed as requiring an absolute majority..
25.On Riverview’s case, the Tribunal’s finding that the amendments were validly made resolved the question of Ginninderra’s standing in its favour.
26.Unfortunately Mr Erskine on behalf of ACTPLA submitted that the question of standing is not so simply resolved. It is necessary, he said, to identify the point in time at which the standing of an incorporated association needs to be decided, especially in a case where the objects of the association change. The Tribunal agrees: standing is a jurisdictional issue. The difficulty is fixing upon what that date is. Mr Erskine offered three possibilities.
27.The first possibility is the date upon which an application is filed, in this case 4 September 2017.
28.Regarding that possibility, Mr Erskine made a comparison between section 419(1)(b) of the P & D Act and section 22Q(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), which is the general provision governing standing for the purpose of anyone applying for review of a decision that is amenable to review by the Tribunal. Section 22Q provides:
22Q People whose interests are affected
(1) In an authorising law, a reference to a person whose interests are affected by a decision (however described) includes a reference to an unincorporated body, the Territory, the Commonwealth, a territory authority or Commonwealth authority.
(2) A body has interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the body.
(3) Subsection (2) does not apply in relation to a decision given before the body was formed or before the objects or purposes of the body included the matter.
(4) The tribunal may decide whether or not a person’s interests are affected by a decision, and the tribunal’s decision is conclusive.
(5) In this section:
Commonwealth authority means a body established under a Commonwealth law.
29.Section 22Q(3) makes clear that the standing of a body seeking to review a decision because it relates to a matter included in the objects or purposes of the body cannot be referenced to objects or purposes of the body that were introduced after the decision under review was made.
30.Section 419 does not contain a provision equivalent to section 22Q(3). Mr Erskine noted, as did the Tribunal in North Canberra Community Council,[3] that section 419 is the authorising Act and so prevails over the general provisions of the ACAT Act.[4] The first possibility would have that the absence of a provision in section 419 equivalent to section 22Q(3) is deliberate, and so exclusion of objects included after the decision was made does not apply in relation to section 419.
[3] North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd [2014] ACAT 1 at [29]
[4] Transcript of proceedings, 5 December 2017, page 64, lines 25 - 26
31.Mr Erskine drew our attention to the decision of the (then) ACT Administrative Appeals Tribunal in Canberra Tradesman’s Union Club v Commissioner for Land and Planning[5] in which the President, Professor LJ Curtis, dealt with the question of standing under section 276 of the Land (Planning and Environment) Act 1991 (now repealed), that (in substance) equated with section 419. In relation to an organisation or association seeking to review a planning decision, Professor Curtis noted that section 276 was amended after the decision under review (in that case) was made by adding section 276(9) which provided that an organisation or association has standing “if the decision relates to a matter included in the objects or purposes of the organisation or association”.
[5] Canberra Tradesman’s Union Club v Commissioner for Land and Planning [1998] ACTAAT 222
32.After stating the content of section 276(9), Professor LJ Curtis said:
In order to establish standing to appeal against the Commissioner’s decision, the applicants must show that they had standing at the date of lodging the appeal or, at the very latest, before the time for lodging an appeal expired. In any event, I do not see that the Association could establish standing even if section 276(9) applied [6]
[6] Canberra Tradesman’s Union Club v Commissioner for Land and Planning [1998] ACTAAT 222 at [23]
33.As Mr Erskine noted, there is no obvious reason or statement as to why a difference between section 22Q (in relation to standing to review reviewable decisions generally) and section 419 (in relation to standing to review planning decisions) should exist.
34.The second possibility, preferred by ACTPLA, is the date upon which the decision under review was made, in this case 31 July 2017.
35.That possibility arises from section 419’s focus upon ‘the decision’, which suggests that the decision must relate to a matter included in the entity’s objects or purposes at the time the decision was made. This possibility, Mr Erskine said, would produce a result with the same effect as section 22Q. The difficulty with this possibility is that, arguably, it renders section 22Q(3) unnecessary.
36.The third possibility is the date of the decision under review and the date upon which the application was filed. Mr Erskine submitted that if the Tribunal concludes that there is a “difference of substance” between the date upon which standing needs to be established under section 419(1)(b) and the date under section 22Q(2), Ginninderra is required to show it has standing under both sections. Mr Erskine drew that possibility from the observations of Professor Curtis in Canberra Tradesman’s Union Club.[7] In this case, because the objects changed between when the decision was made and when the application was filed, Ginninderra would need to show it has standing under both its former and amended objects.
[7] Canberra Tradesman’s Union Club v Commissioner for Land and Planning [1998] ACTAAT 222 at [6]
37.Mr Erskine acknowledged that none of the three possibilities is clearly right, and that all have “difficulties” with their construction, but said (on balance) the second possibility should be preferred.[8]
[8] Transcript of proceedings, 5 December 2017, page 67, lines 23 - 32
38.Unsurprisingly, Mr Onitiri submitted that the first possibility should be preferred.[9]
[9] Transcript of proceedings, 5 December 2017, page 79, lines 4 - 14
39.The Tribunal is grateful to Mr Erskine for his statutory analysis, and agrees with his submission that the date of the decision is the proper date upon which to determine whether “the decision relates to a matter included in the entity’s objects or purposes”. Several factors lead us to that conclusion.
40.First, when construing a statutory provision the starting position is to give close attention to the words used and to give them their ordinary grammatical meaning, with full force and effect, unless the words would lead to some absurdity, repugnance or inconsistency. The section must also be read as a whole.[10]
[10] Pearce and Geddes, Statutory Interpretation in Australia (seventh edition) at [2.3]
41.In this case, the operative words are “the decision relates (present tense) to a matter included (past tense)”, which gives a strong indication that the objects or purposes in question need to exist at the time the decision was made.
42.Second, an interpretation that permits standing to be determined by reference to an entity’s objects or purposes created after the event, meaning after the date of the decision that the entity wishes to challenge, would largely defeat any standing limitation under subsection 419(1)(b).
43.Natural persons without standing to challenge a planning decision could establish an incorporated association after the decision was made and include objects in its Constitution with which the decision would clearly relate.
44.An existing entity would be free to amend its objects or purposes in a manner tailor-made for a submission that the decision relates to the amended objects, without limitation or reference to its objects or purposes prior to the decision.
45.This case illustrates the vice. The decision under review was made on 31 July 2017; Ginninderra held a meeting to amend its objects on 3 August 2017; the amendments took effect 10 August 2017; and Ginninderra filed its application for review on 4 September 2017. It is tolerably clear that Ginninderra amended its objects for the purpose of shoring up its case that it has standing to challenge the decision.
46.Third, section 22Q(3), in our view, is only to make express that which is already implicit from the words “the decision relates to a matter included” in section 22Q(2). We are not persuaded that the absence of equivalent words in section 419 should be construed as a legislative intention that amendments to the objects or purposes of an entity after the date of the decision sought to be reviewed are applicable.
47.Fourth, the Tribunal is not persuaded that Professor Curtis was stating, or even implying, in Canberra Tradesman’s Union Club that when a tribunal is deciding whether the decision in question “relates to a matter included in the objects or purposes of the organisation or association” the applicant must show it had standing at the date of lodging its appeal. In the sentence immediately preceding that quoted in paragraph 32 above, Professor Curtis said:
This provision [section 276(9)] is not retrospective and it does not in my opinion apply to the present matters.
48.Professor Curtis’ subsequent sentence about an applicant needing to show standing “at the date of lodging the appeal” was (in our view) written in the context of section 276 as in force at the time of the decision under review, which required an applicant to show that it was a person “substantially and adversely affected by the decision.” Against that test, standing to apply for review must be seen in a very different context.
49.Where we agree that section 22Q(2) and section 419(1)(b) are both directed at the date of decision, the third possibility need not be considered. However, for completeness, the Tribunal is not persuaded that an entity wishing to apply to the Tribunal for review of a reviewable decision under the P & D Act would need to establish standing under section 22Q of the ACAT Act and section 419 of the P & D Act. Section 408A of the P & D Act, which provides that “an eligible entity for a reviewable decision may apply to the ACAT for review of the decision”, is unambiguous and complete. The Tribunal agrees with Professor Spender in North Canberra Community Council that section 419 “overrides” section 22Q. Section 419(1)(b) may repeat a requirement to establish standing under section 22Q(2), but there are other requirements for an entity to have standing to challenge a planning decision, for example that it be an “eligible entity” as defined.
50.Our conclusion that section 419(1)(b) must be considered by reference to an entity’s objects or purposes as at the date of the decision obliges the Tribunal to determine whether the decision under review “relates to a matter included in [Ginninderra’s] objects” as at the date of the decision, 31 July 2017.
51.Mr Onitiri submitted that Ginninderra has standing under section 419(1)(b) even by reference to the objects as at the date of the decision. He called Ms Robyn Coghlan who gave evidence regarding Ginninderra’s interests in the proposed development relevant to its object of establishing a national park. She described the need for a buffer zone to ensure that any urban development did not have adverse effects on the area designated for the proposed national park. She described a buffer zone of 300m as an “ambit claim” and that certain “issues” require a much broader area. She said:
Well birds in particular that use this area need a much broader, have a much broader range and need protection in other areas outside that zone otherwise [they] will disappear from the zone entirely.[11]
[11] Transcript of proceedings, 5 December 2017, page 31, lines 7-9
52.Mr Walker submitted that there is no proper basis upon which it could be said that the proposed development in some way “relates to” Ginninderra’s wish to establish a national park. He noted that the objects, prior to amendment, were (in summary) to establish, manage and support a new national park, to be known as the Murrumbidgee - Ginninderra Gorges National Park, and activities associated with the proposed park. He relied on maps demonstrating that the area of the proposed park is at least 2.8 km from the area of the proposed subdivision at their closest points. He noted that a tip, an egg farm and a veterinary hospital are significantly closer to the area of the proposed national park than the area of the proposed subdivision. He noted that Ginninderra has not opposed a proposal for urban development adjoining the area of the proposed national park.
53.He submitted there needs to be some indication or evidence about how the establishment of the park would in some respect be adversely affected by the development in question. We agree. Mr Walker accepted that adverse effects can occur despite geographic separation, and gave by way of example that a risk of run-off of pollutants into a river passing through a development and travelling downstream to pollute a river running through a proposed national park may relate to an entity’s objects of establishing a national park because “a park won’t be established because it no longer will have the worth that it currently has.” However, he said, no such evidence establishes any such point.
54.Mr Walker submitted that if Ginninderra is prepared to accept urban development along the NSW border almost adjoining the area of the proposed national park, there “could not possibly” be a relationship between the proposed national park and the proposed development 2.8km away.
55.Mr Erskine stated that ACTPLA did not wish to express a view on the question whether the decision under review relates to Ginninderra’s objects as at the date of the decision.
56.In North Canberra Community Council[12] the Tribunal, per Professor Spender, commented at length regarding construction of the words “relates to a matter included in the entity’s objects or purposes”, noting passages from the debates in the ACT Legislative Assembly about its interpretation and that section 419(1)(b) was intended to have a “wide operation” consistent with the case law that has considered its Commonwealth statutory equivalent. Professor Spender said:
45. As discussed above, section 419(1)(b) of the Planning Act effectively reproduces section 27(2) of the AAT Act. The Administrative Appeals Tribunal (the AAT) in Re Island Voice and Greater Barrier Marine Park Authority and Magnetic Keys Limited (Island Voice) referred to section 27(2) of the AAT Act as a “deeming provision”. This means that an organisation or association is taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association. This obviates the need to independently establish any “special interest” on the general law test [13]
[12] North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd [2014] ACAT 1 at [25] – [27]
[13] North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd [2014] ACAT 1 at [45]
57.Professor Spender also noted and applied the observations of Davies J (in his capacity as President of the Administrative Appeals Tribunal) in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal.[14] Professor Spender said:
53. Mr Arundell also expressed concern that the version of the SIA that had been sent to the Minister as Attachment 12 (T151) to the authority’s briefing in relation to section 261 was apparently the earlier version that did not contain details of any public consultation. He submitted that the Minister might have reached a different conclusion had he been provided with the second version submitted with the DA. He also suggested that the copy of the SIA submitted by the authority to the Social Infrastructure Panning Unit, Strategic City Planning and Design (“the SIPU”) on 12 April 2013 for comment may have been the earlier version. Because of these deficiencies, he submitted that the matter should be resubmitted to the Minister, or failing that, to the authority so that they could make a decision based on the correct information.
54. Ms Messer’s evidence was that, like the valuation statement, she had not herself assessed the SIA as she had no expertise in that area but had instead referred it to the SIPU for advice. She had only checked the application to ensure that the required documentation was attached. The SIPU had examined and briefly summarised the document and had concluded that they supported the proposed variation to remove the concessional status for Block 5 Section 30 Braddon (T182-T184).[15]
[14] Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1980) 3 ALD 74
[15] North Canberra Community Council v ACT Planning and Land Authority & Canberra District Rugby League Football Club Ltd [2014] ACAT 1 at [53] – [54]
58.Professor Spender noted that Davies J’s decision in Re Control Investments was followed in Re Island Voice and Great Barrier Reef Marine Part Authority Magnetic Keys Ltd[16] and Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (Marine World).[17]
[16] Re Island Voice and Great Barrier Reef Marine Part Authority Magnetic Keys Ltd [1990] AATA 41
[17] Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (Marine World) [1986] AATA 203
59.The Tribunal agrees with and follows Professor Spender’s statements in North Canberra Community Council regarding the test under section 419(1)(b).
60.Applying that reasoning to the facts in this case, the Tribunal is satisfied that the decision under review “relates to” Ginninderra’s objects of establishing a national park.
61.It is clear from Ms Coghlan’s evidence, if not self-evident, that the prospects of Ginninderra succeeding in its aim of establishing a national park around Ginninderra Falls and along the Murrumbidgee River corridor will depend significantly upon the environmental importance of the area. That in turn depends not just on the importance of the flora within the area but also the importance of the fauna that utilise habitat within the area.
62.Ginninderra’s submission in response to the proposed estate development[18] addresses at length its concern that the proposed development will adversely affect the habitat of the Little Eagle, declared a vulnerable species in the ACT. The submission refers to a nesting tree of the Little Eagle in Stage 1 (the area of the proposed estate development) and that tracking records show that these eagles tend to fly from the nesting tree southwards to a foraging area near the Molonglo River and northwards over Ginninderra Estate past West Macgregor and into NSW. The submission notes Ginninderra’s concern that construction in Stage 1 will discourage the Little Eagle from following its route to its northern foraging area and that the Little Eagle will abandon the territory. It notes that the ACT population of the Little Eagle has declined 70% in the past 20 years, the main threat being loss of habitat. It notes the primary conservation issue is retention of adequate foraging and breeding habitat. It notes that foraging may occur up to several kilometres away from the nesting tree. It states that if buffer zones are implemented, that an area of 5km around the nest area should be protected due to scientific uncertainty about the required buffer zone.
[18] Submission dated 10 April 2017 at page 253 of the T documents
63.We are satisfied that protection of the Little Eagle relates to the object in Ginninderra’s constitution of establishing a national park around Ginninderra Falls and along the Murrumbidgee River. Ginninderra’s wish to establish a national park to protect the habitat for Little Eagles intrinsically brings with it an interest in land where they nest. If the Little Eagles have abandoned the territory because of destruction of their nesting site in Stage 1, it diminishes the value of the park.
64.To adopt Mr Walker’s example, the worth of a national park to protect Little Eagles is lost if, because of actions taken elsewhere (i.e. pollution upstream or by analogy loss of the nesting site in Stage 1), there are no longer any Little Eagles to protect.
65.Ginninderra’s acceptance of urban development on the NSW border is also of limited relevance. It does not follow from such acceptance that it does not have an interest in any adverse impacts that the development might have on the possibility of establishing a nearby national park.
66.The Tribunal’s conclusion that Ginninderra has standing to seek review of the decision does not of course say anything about its prospects. A person might have standing, even though their prospects at hearing are quite hopeless, and vice versa.
67.Whether this development should be approved needs to be determined according to law, and in particular the P & D Act and the Territory Plan. Ginninderra’s concerns about the habitat of the Little Eagle, or any other birds or flora or fauna, or its prospects of establishing a national park are relevant only in so far as they are relevant according to the applicable law.
68.Likewise, with standing to challenge the decision under review, Ginninderra’s grounds for challenging the decision are not confined by its objects. It may take any point it chooses that is relevant to the question whether the decision under review has been made according to law. Its motives for doing so are irrelevant.
Question 2 - correctness of the assessment track
69.The development application giving rise to the decision under review was made and assessed in the merit track. Ginninderra submits that the decision under review must be set aside because the application should have been made and assessed in the impact track. The submission arises from section 123(b) of the P & D Act which provides:
123Impact track applicability
The impact track applies to a development proposal if—
(a)the relevant development table states that the impact track applies; or
(b)the proposal is of a kind mentioned in schedule 4; or
Note For certain proposals mentioned in sch 4, a proponent may apply under s 138AA (2) for an environmental significance opinion from a relevant agency that the proposal is not likely to have a significant adverse environmental impact. The production of the opinion by the agency will take the proposal out of the impact track unless other reasons under this section apply.
(c)the Minister makes a declaration under section 124 in relation to the proposal; or
(d)section 125 (Declaration by Public Health Act Minister affects assessment track) or section 132 (Impact track applicable to development proposals not otherwise provided for) provides that the impact track applies to the proposal; or
(e)the Commonwealth Minister responsible for administering the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) advises the Minister in writing that the development proposed—
(i)is a controlled action under that Act, section 76; and
(ii)does not require assessment under that Act, part 8 (Assessing impacts of controlled actions) because a bilateral agreement between the Commonwealth and the Territory under that Act allows the proposal to be assessed under this Act.
70.Arising from section 123(b), Part 4.3 of Schedule 4, column 1 (item 1) and column 2 paragraph (c), provides – as a kind of proposal that must be assessed in the impact track –
[a] proposal that is likely to have a significant adverse environmental impact on [a vulnerable species], unless the conservator of flora and fauna provides an environmental significance opinion indicating that the proposal is not likely to have a significant adverse environmental impact.
71.Ginninderra submits that the Little Eagle and the Scarlet Robin are both a ‘vulnerable species’ for the purpose of Schedule 4. The parties agree that the conservator has not provided an opinion that the proposal is not likely to have a significant adverse environmental impact, but disagree as to whether the proposal “is likely to have a significant adverse environmental impact” on the Little Eagle and/or the Scarlet Robin.
72.Riverview seek a preliminary ruling on the question whether the Tribunal has jurisdiction to review the correctness of ACTPLA assessing the development application in the merit track and, by implication, to entertain Ginninderra’s submission that it should have been made and assessed in the impact track.
73.The parties are agreed, and the Tribunal also agrees, that it does not have jurisdiction to review ACTPLA’s decision per se, to accept the development application in the merit track and then to assess it in that track. That decision is not a reviewable decision under section 407 of the P & D Act. The question is whether the Tribunal can consider the correctness of the assessment track in the course of reviewing the approval decision. Riverview submits it cannot.
74.Mr Walker referred to Canberra Tradesman’s Union Club and Ors v Minister of the Environment Land and Planning and Anor and earlier cases as authority for the proposition, which we accept, that it is not open to the Tribunal “to embark on a review of a decision which was not a reviewable decision under the guise of reviewing a reviewable decision”.[19] For this reason, Mr Walker submitted that it is not open for the Tribunal to review ACTPLA’s antecedent decision to accept and assess the development application in the merit track.
[19] Canberra Tradesman’s Union Club and Ors v Minister of the Environment Land and Planning and Anor [1997] ACTSC 105 at page 7
75.Relevant to this question, sections 113 and 114 of the P & D Act, provide:
113Relationship between development proposals and development applications
(1)A person who has a development proposal may apply to the planning and land authority for approval to undertake the development proposed.
(2)The determination of which assessment track applies to a development proposal is made by reference to circumstances when the application is made.
(3)Subsection (2) does not apply if, after the application is made—
(a)the Minister makes a declaration under section 124 (Minister may declare impact track applicable) in relation to the development proposal; or
(b)the Public Health Act Minister makes a declaration for section 125 (Declaration by Public Health Act Minister affects assessment track) in relation to the application.
(4)If an assessment track applies to a development proposal, the proposal is in that assessment track and that track must be followed in assessing the development application for the proposal.
(5)Subsection (4) is subject to section 123 (c), (d) and (e) (Impact track applicability).
114Application of assessment tracks to development proposals
(1)The development table sets out the criteria to allow the assessment track for a development application for a development proposal to be worked out.
(2)To remove any doubt—
(a)the planning and land authority may refuse to accept a development application made in an assessment track other than the assessment track for the development proposal; and
(b)if the authority assesses a development application made in an assessment track other than the track for the proposal, the authority must refuse the application.
76.Arising from section 114(1), a ‘development table’ is defined in the Dictionary to the P &D Act as follows:
development table, for a development or development proposal, means the development table in the territory plan that covers the zone in which the development or development proposal is to take place (see s 54).
77.Arising from that definition, section 54 of the P & D Act provides:
54Development tables
(1)A development table for a zone must set out—
(a)the minimum assessment track that applies to each development proposal; and
NoteAssessment tracks are dealt with in ch 7.
(b)development that is exempt from requiring development approval; and
NoteExempt developments are further dealt with in div 7.2.6.
(c)development that is prohibited; and
(d)the code that development proposals must comply with.
(2)A development table may exempt a development proposal from requiring development approval subject to a condition.
Example of possible condition
A development proposal is exempt from requiring development approval if the building plans for the proposal comply with a code that applies to single residences in the development table that applies to the proposal.
(3)The assessment tracks, from minimum to maximum, are as follows:
(a)code track;
(b)merit track;
(c)impact track.
78.The proposed development, so far as the Tribunal can ascertain, straddles land across several zones each of which has a different development table. However, arising from section 54(3), each development table (so far as the Tribunal can ascertain) provides that the minimum assessment track for a development proposal specified in schedule 4 to the P & D Act is the impact track.
79.It follows that despite the proposed development straddling different zones, if the proposal “is likely to have a significant adverse environmental impact … on a vulnerable species”, the minimum assessment track for the proposal was (or is) the impact track.
80.Ginninderra contends that, for this reason, the impact track applied. It says that ACTPLA should therefore have refused (under section 114(2)(a) of the P & D Act) to accept the application in the merit track, but having not done so and assessed it in a track “other than the track for the proposal”, meaning the impact track, the Tribunal “standing in the shoes” of ACTPLA, “must refuse the application” under section 114(2)(b).
81.Ginninderra submits that the Tribunal has jurisdiction to review the question whether the application was made in the correct track, and refuse the development under section 114(2)(b), as part of its review of the decision made under section 162 of the P & D Act to approve the development.
82.We are not persuaded that the Tribunal, as part of its review of the decision to approve the development application, is not able to consider whether the application was made in the correct track. The cases to which Mr Walker referred covered antecedent decisions that stood quite independent of the decision under review.
83.In Civil Aviation Safety Authority v Coburn[20] the Administrative Appeals Tribunal (AAT) had jurisdiction to review a decision to suspend Mr Coburn’s licence in circumstances where he was refusing to take an examination concerning wooden airframe structures. In reviewing the decision to suspend, the Federal Court found that the AAT was not entitled to go behind the decision to suspend and review instead the non-reviewable decision that he undergo the examination.
[20] (1997) 24 AAR 389
84.In Secretary to the Department of Social Security v Riley[21] the AAT had jurisdiction to review a decision to recoup social security benefits paid to Mr Riley following his receipt of compensation payments from another source. The Federal Court found that the AAT was not entitled to go behind the decision to recoup the benefits and review instead whether Mr Riley was entitled to receive the compensation payments.
[21] Secretary to the Department of Social Security v Riley (1987) 17 FCR 99
85.In Canberra Tradesman’s Union Club the Supreme Court of the ACT found that in reviewing a decision to vary a lease purpose clause, the tribunal was not authorised to review the planning authority’s earlier decision not to conduct a preliminary assessment of the proposal, particularly where a procedural decision not to conduct a preliminary assessment could not be properly regarded as “falling within the concept of conclusions or findings forming part of the reasons for the making of the subsequent decision” to vary the lease purpose clause.
86.We acknowledge those statements of principle, but they are not applicable to this case. Whether the application was made in the correct track is central to the lawfulness of the decision under review. Section 114(2)(b) mandates that if ACTPLA assessed the application “in an assessment track other than the track to the proposal” the authority must refuse the application.
87.Mr Walker next submitted that section 114(2)(b) should be understood as a direction to ACTPLA as to what it must do “during its assessment process”, but it does not (he said) enable the Tribunal to do likewise if the final decision becomes the subject of review. Mr Erskine did not join in that submission and, after commenting on the operation of sections 113 and 114, said “it’s at least strongly arguable that you have the same power as the authority in 114(2)(b).”[22]
[22] Transcript of proceedings, 5 December 2017, page 100, lines 4 - 23
88.We have concluded that the Tribunal on review has the same power as ACTPLA under section 114(2)(b). Section 114(2)(b) is not directed to some discretionary procedural step akin to a preliminary assessment or a manner of public notification that may or may not be necessary prior to consideration of substantive issues relevant to whether the development application should be approved. Section 114(2)(b) identifies a circumstance of fact – the authority has assessed the development application in an assessment track other than the track to the proposal – and states that if that has occurred, the authority must refuse the application. We can see no reason why, if that fact is established on review, the Tribunal is not similarly required to set aside the decision.
89.The next question was the framework within which ACTPLA, and the Tribunal on review, can determine whether section 114(2)(b) applies.
90.Mr Onitiri submitted that section 114(2)(b) goes “to the merits of the decision”, and that if the Tribunal finds on the evidence before it that the development application was made in the wrong track, it must set aside the decision. He submitted that the Tribunal, and ACTPLA beforehand in the course of assessing the development application, is able to consider evidence that comes to light after the application was made that is relevant to whether the development application was filed in the right (or wrong) track.
91.In relation to section 113(2) requiring the determination of which assessment track applies to be made “by reference to circumstances when the application is made”, Mr Onitiri submitted that that it is not sufficient for Riverview or ACTPLA to “simply say” that they did not have the material that is later produced relevant to determination of which assessment track applies, and that their obligation is to ensure that the development application is made in the right track. Mr Onitiri indicated an intention to lead evidence that would demonstrate that the development application should have been brought in the impact track because the development proposal “is likely to have a significant adverse environmental impact” on a vulnerable species, being the Little Eagle and/or the Scarlet Robin.
92.Mr Walker submitted that this approach would defeat the structural purpose of assessment tracks that enable an applicant to make an application in the assessment track that applies confident that it would then be assessed in that track through to determination.
93.Mr Walker drew our attention to a passage concerning assessment tracks in the Second Reading Speech regarding the Planning and Development Bill 2006:
All assessable development will be assessed under one of three tracks: the code, merit or impact tracks. The track-based system has several advantages. Firstly, it ensures an efficient use of resources by allowing appropriate levels of assessment resources to be tailored to each track. Secondly, it ensures effective processes by allowing appropriate and clear timeframes and processes to be set for each track. Thirdly, it provides clarity and transparency for applicants and the wider public through consistent treatment of all developments in the same track.
94.Mr Erskine drew the Tribunal’s attention to several issues regarding its jurisdiction to determine whether the development application was made in the wrong track and, if so, to set aside the decision.
95.First, Mr Erskine noted that the Tribunal’s jurisdiction to review a decision to approve a development application for a development proposal in the merit track as has occurred is confined by section 121(2) of the P & D Act, which provides:
121Merit track—notification and right of review
(1)To remove any doubt, if a development proposal is in the merit track, the application for development approval for the proposal must be publicly notified under division 7.3.4.
(2)If there is a right of review under chapter 13 in relation to a decision to approve an application for development approval for a development proposal in the merit track, the right of review is only in relation to the decision, or part of the decision, to the extent that—
(a)the development proposal is subject to a rule and does not comply with the rule; or
(b)no rule applies to the development proposal.
96.Mr Erskine submitted, and we agree, that section 121(2) is a gateway that must be passed before the Tribunal can consider whether it can set aside the decision under section 114(2)(b).
97.The Tribunal has considered the ambit of section 121(2) in several recent decisions,[23] but we are satisfied that the subtleties concerning the Tribunal’s jurisdiction under that section do not arise in relation to its jurisdiction to consider whether a development application was filed in the wrong track. If that can be shown, we expect the development application would be subject to a raft of rules applicable to proposals that must be assessed under the impact track that have not yet been considered.
[23] See for example, Noah’s Ark Resource Centre Incorporated v ACTPLA [2017] ACAT 44; Glass v ACTPLA and Anor [2016] ACAT 96
98.We turn therefore to the statutory context or framework within which the Tribunal may consider whether the development application was assessed in the wrong track.
99.We reject Mr Onitiri’s submission that ACTPLA, and now the Tribunal on review, can at any time after a development application has been made come to the view that it was made in the wrong track, refuse the application, and (if the applicant wishes to proceed with its development application) require it to commence again in the right track (meaning in this case the impact track).
100.To construe section 114(2)(b) in that way would be to ignore section 113(2), which requires determination of which assessment track applies to be made “by reference to circumstances when the application is made.” A change in circumstances after the application is made was irrelevant.
101.Mr Erskine was unable to refer us to any authority as to what should be understood by the phrase “circumstances when the application is made”. We agree with his observation that it is difficult to answer this question in the abstract. The question should be decided on a case-by-case basis.
102.What is clear, however, is that section 113(2) does not permit reference to facts or circumstances arising after the application was made. We have also concluded that the circumstances to be considered must be of a nature or kind that the person or entity making the development application knew or should reasonably have known at the time the application was made.
103.We recognise that in some cases new evidence might come to light after a development application has been made that (arguably) shows that the application should be assessed in the impact track. Section 113(3) accommodates that possibility by enabling Ministerial declarations to be made under sections 124 or 125 of the P & D Act. In our view, when section 113 is read as a whole, that pathway for addressing circumstances arising after the event (meaning after the development application was made) confirms that ACTPLA (and the Tribunal on review) cannot consider such circumstances when considering whether a development application has been in assessed in a track other than the track for the proposal.[24]
[24] None of this bears upon the Tribunal’s jurisdiction to consider later evidence in its de novo review of the decision in the merit track
104.Applying these principles to this case, and assuming that there is no issue that the Little Eagle and the Scarlet Robin are “vulnerable species” for the purposes of Schedule 4, the question will be whether Riverview and/or its agent/s who applied for approval to undertake the development proposed knew or should reasonably have known at the time the development application was made that the proposal “is likely to have a significant adverse environmental impact” on either or both of those species.
105.Mr Walker expressed concern that if the Tribunal is about to entertain the question whether that the proposal “is likely to have a significant adverse environmental impact” on either or both of those species then Riverview faces significant effort, time and cost in assembling evidence to establish that the proposal is not likely to have such an impact.
106.We do not agree that evidence of that kind needs to be obtained or would be relevant. What would be relevant is evidence Riverview (and/or ACTPLA) had “when the application [was] made” going to Riverview’s and ACTPLA’s understanding about whether the proposal “is likely to have a significant adverse environmental impact” on either or both of those species.
107.For the same reason, in response to Mr Onitiri’s stated intention, we have difficulty understanding how expert reports or other evidence written or obtained after the development application was made could be relevant. It might be that some of the facts stated in the reports form part of the “circumstances when the application [was] made” if it can be shown that Riverview and/or ACTPLA knew or should reasonably have known those facts. But we have difficulty seeing how the reports themselves, and more particularly the expert opinions drawn from those facts, could form part of the “circumstances when the application [was] made.” The reports did not exist.
108.In answer to the preliminary question posed, but within the statutory framework discussed, we have concluded that the Tribunal does have jurisdiction to consider whether the development application was made in the wrong track, and must set aside the decision if it finds that that has occurred.
109.It remains for Ginninderra to decide whether to press its submission that the development application has been made in the wrong track, having regard to our conclusions about how that question needs to be addressed and the evidence relevant to the question. We respectfully remind Ginninderra that it is not enough to show that either of these species is in decline, or even in significant decline. A causal link needs to be established, meaning the “proposal … is likely to have a significant environmental impact” on either or both of these species.
110.We have also concluded that Riverview and ACTPLA are reasonably entitled to know soon whether Ginninderra wishes to press a submission that the development application has been made in the wrong track. If the submission is to be pressed, we are willing to give all parties further time to file and serve evidence relevant to that question. Timetabling orders are made accordingly.
………………………………..
Presidential Member G McCarthy
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AT 51/2017
PARTIES, APPLICANT:
Ginninderra Falls Association Inc
PARTIES, RESPONDENT:
ACT Planning and Land Authority
PARTY JOINED
Riverview Developments (ACT) Pty Ltd
COUNSEL APPEARING, APPLICANT
Mr S Onitiri
COUNSEL APPEARING, RESPONDENT
Mr C Erskine SC, Dr D Jarvis
COUNSEL APPEARING, PARTY JOINED
Mr P Walker SC, Ms K Katavic
SOLICITORS FOR APPLICANT
Environmental Defenders Office
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
SOLICITORS FOR PARTY JOINED
Clayton Utz
TRIBUNAL MEMBERS:
Presidential Member G McCarthy, Senior Member A Davey
DATES OF HEARING:
5 December 2017
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