Glass v ACTPLA - [2019] ACTSC 201

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Glass v ACTPLA
Citation:	[2019] ACTSC 201
Hearing Dates:	12 December 2016; 10 February, 14 March 2017
DecisionDate:	14 March 2017
Reasons Date:	2 August 2019
Before:	Penfold J
Catchwords:	ADMINISTRATIVE LAW – Appeals from Administrative Authorities – application for leave to appeal to the Supreme Court from ACAT review of planning approval – leave refused
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 79, 79(2), 86(2), 94 Tree Protection Act 2005 (ACT) ss 31, 80, 82, 83 Heritage Act 2004 (ACT) Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5 Community Facility Zone Development Code r 21 Planning and Development Regulation 2008 (ACT)Tree Protection (Guidelines for Tree Management Plans) Determination 2010 (ACT) Planning and Development Act 2007 (ACT) ss 19, 19(2), 81, 83(3)(b), 119(2)(a)(i), 119(2)(b), 120, 121, 121(2)(a), 146, 148(1), 149, 150, 153, 154, 155, 162(6)(b), 420 Territory Plan, Pts 1.21, 1.23, 2.16
Cases Cited:	Rudder v ACT Planning and Land Authority and Ors [2010] ACAT 24 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Deakin Residents Association Inc v ACT Planning and Land Authority & Anor [2015] ACAT 37 Glass v ACT Planning and Land Authority & Anor [2016] ACAT 147 Glass v ACT Planning and Land Authority & Anor [2016] ACAT 21 Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 Haritos v Commissioner of Taxation [2015] FCAFC 92; 322 ALR 254 Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Macedonian Orthodox Church Incorporated v ACT Planning & Land Authority [2015] ACTCA 32; 208 LGERA 434 Tradesmen’s Union Club and Ors v Minister for the Environment, Land and Planning (1997) 131 ACTR 1
Parties:	Eric Glass (Applicant) ACT Planning and Land Authority (First Respondent) Goodwin Aged Care Services Ltd (Second Respondent)
Representation:	Counsel Unrepresented (Applicant) S Gasser (First Respondent) C Erskine SC (Second Respondent)
Solicitors Unrepresented (Applicant) ACT Government Solicitor (First Respondent) Meyer Vandenberg (Second Respondent)
File Number:	SCA 82 of 2016
Decision under appeal:	Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member G McCarthy Senior Member R Pegrum Date of Decision: 21 October 2016 Case Title: Glass v ACT Planning and Land Authority & Anor (Administrative Review) Citation: [2016] ACAT 147

Introduction

Eric Glass, who was unrepresented before me, sought leave to appeal to the Supreme Court from a decision of the ACT Civil and Administrative Tribunal (ACAT) dated 21 October 2016 generally confirming approval of a development proposal (the original proposal) given by the first respondent, the ACT Planning and Land Authority (ACTPLA) on 18 November 2015 to the second respondent, the proposed developer Goodwin Homes (Goodwin).

On 14 March 2017 I refused Mr Glass leave to appeal, and ordered him to pay the respondents’ costs of the application. I said that I would provide written reasons in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACTSC 201
Decision Date: 14 March 2017

CaseChat Overview and Summary

Glass was the appellant and the Australian Capital Territory Planning and Land Authority (ACTPLA) was the respondent in this case. Glass sought leave to appeal a decision of the Administrative Appeals Tribunal (AAT) which had reviewed a decision of the ACAT approving a development application by the ACTPLA. The dispute centred on whether the AAT had the jurisdiction to review the ACAT's decision, and whether Glass had standing to appeal the decision. The case was heard in the Supreme Court of the Australian Capital Territory.
The legal issues that the court was required to decide included whether the AAT had jurisdiction to review the ACAT's decision, whether Glass had standing to appeal, and whether the AAT had committed an error of law in its review of the ACAT's decision. The court was also required to consider whether the appeal was frivolous or vexatious.
The court found that the AAT had jurisdiction to review the ACAT's decision and that Glass had standing to appeal. However, the court found that the AAT had not committed an error of law in its review of the ACAT's decision. The court also found that the appeal was not frivolous or vexatious. The court refused the application for leave to appeal on the basis that there was no reasonable prospect that the appeal would succeed.
The court found that the AAT had not erred in law in its review of the ACAT's decision, and that there was no reasonable prospect that the appeal would succeed. The court therefore refused the application for leave to appeal.

Orders