Glass v ACTPLA
[2019] ACTSC 201
•14 March 2017
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 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 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 due course. These are those reasons.
Review of administrative decisions
The general scheme for review of administrative decisions in the ACT starts with review of such decisions, on their merits, in a tribunal that is not established as a court. Among other things, this permits the inclusion in a tribunal of one or more members who are not legally qualified but who have expertise in the matters raised by the administrative decision under review. In this case, for instance, the tribunal that reviewed the development approval on its merits included a presidential member (who must have legal qualifications: s 94, ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act)) and a senior member qualified and experienced as an architect.
Under s 79 of the ACAT Act, most decisions made by ACAT after reviewing an administrative decision on its merits may be reviewed by an appeal tribunal within ACAT. However, s 79(2) excludes from such further review administrative decisions under three Acts (the excluded decisions): those Acts are the Planning and Development Act 2007 (ACT) (the Planning Act), the Tree Protection Act 2005 (ACT), and the Heritage Act 2004 (ACT).
After the original ACAT review, excluded decisions may only be further reviewed, by the Supreme Court, “on a question of law” (ACAT Act, s 86(2)) for which the leave of the Supreme Court is necessary. Among other things, restricting the content of such appeals to questions of law operates to confine judicial review to matters generally within the expertise of courts rather than within the expertise of architects, town planners and other relevant experts.
The significance of the s 86(2) limitation has been the subject of Supreme Court consideration on various occasions since ACAT was established in 2008. No controversial submissions were made before me about that significance, although counsel did direct my attention to a useful summary of principles set out by the Federal Court in relation to a similar provision of the Administrative Appeals Tribunal Act 1975 (Cth) (see Haritos v Commissioner of Taxation [2015] FCAFC 92; 322 ALR 254 at [62]). There was no need to canvass that issue in this matter.
Considerations relevant to granting leave to appeal
As noted at [5] above, an appeal to the Supreme Court from a tribunal review of a decision under the Planning Act may only be brought with the leave of the Supreme Court. Various matters are relevant in determining whether to exercise the discretion to grant leave (see Macedonian Orthodox Church Incorporated v ACT Planning & Land Authority [2015] ACTCA 32 at [111] and [112]).
First, the statutory requirement to identify a question of law must be satisfied.
As well, the applicant should:
(a)demonstrate an arguable case that the tribunal erred in resolving that question; and
(b)explain how the correct resolution of that question would be more favourable to him or her.
Also relevant to the exercise of the discretion are:
(a)whether the applicant would suffer prejudice if leave is refused; and
(b)whether the decision challenged (or perhaps the question of law to be decided) is a matter of public importance.
Finally, a court may be more reluctant to grant leave if the decision to be challenged is a discretionary one.
History of proceedings
Development application
Goodwin sought, from ACTPLA, development approval for the redevelopment of a site then used for aged persons’ accommodation, with a view to expanding the aged persons’ accommodation that could be provided.
On 10 July 2015, the development application was lodged under the Planning Act.
A number of trees on the site were regulated trees under the Tree Protection Act, but there were no registered trees. The development application included a tree management plan; it seems that construction of the proposed development would require the removal of a number of regulated trees (apparently in the order of 40 trees), and that this was addressed in the tree management plan. In the course of the hearing of Mr Glass’s application, mention was made of trees including trees 8, 89, 209, 210 and 218.
The merit track
The development application was lodged in the “merit track”, and was accordingly required to be considered under ss 119 and 120 of the Planning Act. Section 121 of that Act is also applicable. Those sections are relevantly as follows:
119Merit track—when development approval must not be given
(1) Development approval must not be given for a development proposal in the merit track unless the proposal is consistent with—
(a)the relevant code; and
(b)….
Note 1An application cannot be approved if it is inconsistent with the territory plan (see s 50) or the National Capital Plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 11).
Note 2Relevant code—see the dictionary.
(2) Also, development approval must not be given for a development proposal in the merit track if approval would be inconsistent with any advice given by an entity to which the application was referred under section 148 (Some development applications to be referred) unless the person deciding the application is satisfied that—
(a)the following have been considered:
(i)any applicable guidelines;
(ii)any realistic alternative to the proposed development, or relevant aspects of it; and
(b)the decision is consistent with the objects of the territory plan.
(3) …
120Merit track—considerations when deciding development approval
(1) In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following:
(a)the objectives for the zone in which the development is proposed to take place;
(b)the suitability of the land where the development is proposed to take place for a development of the kind proposed;
(c)… ;
(d)each representation received by the authority in relation to the application that has not been withdrawn;
(e)if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice;
NoteAdvice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150).
(f)…;
(g)the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.
(2) …
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.
I note in passing that s 122 sets strict deadlines for the processing of development applications.
Section 121 limits review rights by reference to compliance with relevant rules. The rule arising in this matter is r 21 of the Community Facility Zone Development Code, which appears as follows:
Rules
Criteria
5.4 Tree protection
R 21
This rule applies to a development that has one or more of the following characteristics:
a) requires groundwork within the tree protection zone of a protected tree
b) is likely to cause damage to or removal of any protected trees
The authority shall refer the development application to the Conservator of Flora and Fauna.
Notes:
1. Under the Planning and Development Regulation 2008 a development application for a declared site under the Tree Protection Act 2005, must be referred to the Conservator of Flora and Fauna.
2. The authority will consider any advice from the Conservator of Flora and Fauna before determining the application in accordance with the Planning and Development Act 2007.
3. Protected tree and declared site are defined under the Tree Protection Act 2005.
This is a mandatory requirement. There is no applicable criterion.
The obligation to refer the development application to the Conservator of Flora and Fauna (the Conservator) was imposed under s 148(1) of the Planning Act, and s 26 of the Planning and Development Regulation 2008 (ACT). Section 148 permits regulations to specify development applications that must be referred to prescribed entities, and among other things s 26(3) of the Regulation says that if the Territory Plan requires a development application to be referred to an entity, that entity is “prescribed” (for the purposes of s 148).
Section 119(2) applies to advice received from the Conservator on referral under r 21.
Referral to Conservator
Conservator’s deemed advice
The development application was accordingly referred to the Conservator, twice as it happened, but on each occasion the Conservator’s advice was not provided within the time frame of 15 working days from referral as specified in s 149 of the Planning Act (the first referral was on 13 July 2015 and the response was received on 6 August 2015; the second referral was on 6 October 2015 and the response was received on 28 October 2015).
Accordingly, under s 150, the Conservator was taken to have provided advice in support of the development application.
Conservator’s actual advice
The advice ultimately provided was somewhat obscure (although it was probably clearer to recipients with a detailed knowledge of the operation of the Tree Protection Act and the Planning Act, who would, for instance, have understood whether the criteria in the Tree Protection Act related to whether a tree needed to be protected or whether a tree could appropriately be removed):
The TMP DRG No 3082-G4 A is sufficient and the DA is largely supported, except for the removal of the following trees.
· 209, 210 & 218, these trees are of medium value and fulfil no criteria under the Act, and would need to be considered for removal under the Planning and Development Act.
The Conservator also asked that “the twelve fenced Tree Protection Zones have two tree protection signs each, prominently displayed”.
ACTPLA’s treatment of advice
Thus, at the end of each of the 15-working-day periods, ACTPLA had complied with the requirement to refer the development application to the Conservator (meaning that r 21 had been fully complied with), and was taken to have received advice supporting the development application (including the tree management plan) and in particular the removal of trees 209, 210 and 218. There was no obstacle to ACTPLA’s approval of the development application to the extent that it raised tree protection issues.
However, despite the late arrival of the Conservator’s advice, the decision-maker in fact, before approving the development application:
(a)treated the Conservator’s late advice as:
(i)supporting all other tree removals as shown in the tree management plan; and
(ii)opposing the removal of trees 209, 210 and 218;
(b)acted, in the way that would have been required by s 119(2) if the advice had been timely, by considering:
(i)that advice;
(ii)the relevant guidelines;
(iii)“any realistic alternative to the development proposal or aspects of it”; and
(iv)advice from ACTPLA’s internal Major Project Review Group, which supported the removal of trees 209, 210 and 218;
(c)noted that construction of one of the proposed buildings would be restricted if those three trees were retained, that some other trees were to be retained and that other trees would be planted; and
(d)concluded that “removal of the trees will not have a significant adverse impact on the existing character in relation to landscaping and vegetation”.
ACTPLA decision
By a notice of decision dated 18 November 2015, ACTPLA approved, in the merit track, the original proposal, described in the approval as follows:
· demolition of majority of the existing buildings except Building G located at the southern corner of the subject block;
· construction of six new buildings consisting of 124 bed residential aged care facility; 154 independent living units; club house; car parking spaces in basement, undercroft and on the surface; landscaping and associated site works, and
· removal of regulated trees nos. 209, 210 and 218 and other regulated trees as approved by the Conservator of Flora and Fauna;
The proposal was approved subject to conditions relating to the staging of the works, traffic management, display of tree protection signs on 12 fenced tree protection zones, and several other matters not currently relevant.
In the notice of decision, the decision-maker reported undertaking the steps mentioned at [25] above. There was no reference to a tree management plan, but the notice did mention a Landscape Plan showing proposed trees to be planted.
Mr Glass’s challenges
Mr Glass had made representations criticising the development proposal when it was publicly notified, and he was not pleased when it was approved. Over time he had raised concerns encompassing both problems that he perceived with the proposed development itself (for instance, that it was poorly located given the inadequacy of public transport serving the area) and problems that the development might cause for its neighbours (including its impact on the visual amenity of the area concerned).
Mr Glass then began a series of challenges to the approval. The following summary of the processes draws heavily on the reasons for several relevant ACAT decisions, published as:
(a)Glass v ACT Planning and Land Authority & Anor [2016] ACAT 21 (ACAT 21);
(b)Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96 (ACAT 96);
(c)Glass v ACT Planning and Land Authority & Anor [2016] ACAT 147 (ACAT 147).
Application for review of development approval
First, on 14 December 2015, Mr Glass applied for review of ACTPLA’s approval decision. That application was listed for hearing on 30 March 2016.
Challenge to notification process
Before that hearing date, Mr Glass by interim application sought an order that ACTPLA re-open the process of public notification of the proposal, on the ground that the notification had been inaccurate.
At the hearing of the interim application, Mr Glass sought instead an order that the approval of the original proposal be set aside and that Goodwin be invited to submit an amended development application for further public notification.
Mr Glass’s complaint was that the description of the proposal in the notification was inaccurate.
The respondents conceded some inaccuracy in the description: the number of new residential units was incorrectly stated as 124 rather than the 154 intended.
The respondents did not concede Mr Glass’s second claim, that the reference to a “124 bed Residential Aged Care facility” was inaccurate to the extent that 42 of the 124 “beds” would have private living areas and should therefore have been notified as residential units rather than “beds”.
The respondents also rejected Mr Glass’s claim that this error “had so misled the public as to the true nature of the development proposal” that either the notification process should be re-opened or the development proposal should be amended to reflect the contents of the notification.
Mr Glass’s application was dismissed on 23 February 2016, and written reasons were provided on 21 March 2016 (ACAT 21). ACAT concluded that it had no jurisdiction to review ACTPLA’s compliance with the notification sections of the Planning Act: this was because each of the provisions requiring notification (ss 153, 154 and 155 of the Planning Act), expressly provided that the validity of a development approval “is not affected” by a failure by ACTPLA to comply with the notification requirements of the section.
ACAT also noted that, should there have been the necessary jurisdiction, it would still have dismissed the application because, in its view, the inaccuracies in the notification had caused no “practical injustice” (relying on Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14).
The ACAT review
Mr Glass’s application for review of ACTPLA’s decision was heard on 30 and 31 March and 1 April 2016. On 19 August 2016, ACAT ordered that ACTPLA’s decision be set aside and reconsidered in accordance with the reasons set out in ACAT 96.
On 5 September 2016 Goodwin raised the question whether those orders were the proper way to implement ACAT’s decision on the review, and applied for “interim or other orders”, seeking:
(a)to have the matter relisted for argument about whether the orders that were made on 19 August 2016 arose from the reasons for decision; and
(b)to be heard as to the appropriate orders that should be made arising from those reasons (ACAT 147).
Goodwin’s application was heard on 22 September 2016: after hearing submissions from the parties, ACAT set aside the 19 August 2016 decision and ordered that Goodwin make design amendments to three of the six new buildings, and circulate the amended designs and related submissions to the parties by 30 September 2016.
At a further hearing on 21 October 2016, ACAT:
(a)considered whether the amended draft plans complied with the relevant codes and legislation;
(b)determined that the amendments to the development application were permissible, that the public notification requirements under s 146 of the Planning Act could and should be waived, and that the development application as amended complied with the Territory Plan and should be approved; and
(c)approved the amended development application (the ACAT approval).
Application for leave to appeal
On 17 November 2016, Mr Glass lodged an application for leave to appeal to the Supreme Court. It attached a draft notice of appeal, and was supported by an affidavit that included submissions which were ostensibly in support of the proposed appeal, but which focussed largely on establishing that both ACTPLA and the Conservator had failed to perform obligations under the Tree Protection Act assumed by Mr Glass to bind them but not obviously imposed by that Act or any other relevant legislation.
The application for leave to appeal first came before me, listed as an urgent matter, on 12 December 2016. After an hour of submissions (made while a jury panel waited for my attention), some of the complexity of the matter became apparent, as did the fact that it was not likely to be resolved very quickly; among other things, none of the parties at that point had access to a transcript of the oral reasons, delivered in October 2016, for the decision Mr Glass wished to challenge. Accordingly, I adjourned the application to February 2017.
The matter next came before me on 10 February 2017. By then, Mr Glass had filed written submissions more relevant to his draft notice of appeal, but he struggled to explain the questions of law that he said were raised by the asserted errors of law, or how any of the matters he sought to rely on were raised by the relevant ACAT decision. Because he was unrepresented, I adjourned the matter to give Mr Glass a further opportunity to identify, and properly address, questions of law that might found a proper application for leave to appeal.
On 23 February 2017, Mr Glass filed an amended draft notice of appeal, which set out nine issues framed as questions and said to be questions of law raised by or in his appeal. No other written material was provided about the significance of those further questions.
Decision on leave application
The hearing of Mr Glass’s application for leave resumed on 14 March 2017, and at the end of the hearing I refused him leave to appeal.
Background
Planning and tree protection
In order to make any sense of the processes involved in the development application and approval, and Mr Glass’s complaints about those processes, it is necessary to understand in general terms the interaction between the Planning Act and the Tree Protection Act.
The Tree Protection Act recognises protected trees, being registered trees and regulated trees. The legislation provides greater protections for registered trees than for regulated trees.
Part 11 of the Tree Protection Act deals with “land development applications”. It is a brief part, containing only a definition of “development” (s 80), a “simplified outline” of the interaction between that Act and the Planning Act (s 81), and two further sections, ss 82 and 83; these permit the Conservator to give advice to ACTPLA in circumstances similar to those mentioned in r 21 of the Community Facility Zone Development Code, and set out what must and what may be included in any such advice.
Part 11 does not invoke any specific provisions of the Tree Protection Act in referring to the Conservator’s role in development applications, although s 83(3)(b) does require that the suggestions the Conservator might make about a tree management plan must have regard to the Guidelines for Tree Management Plans made under s 31 of that Act (the Tree Management Plan Guidelines). Those guidelines are set out in Schedule 1 to the Tree Protection (Guidelines for Tree Management Plans) Determination 2010 (ACT).
The outline set out at s 81 of the Tree Protection Act is as follows:
Note 1Conservator to be given copy of development application
The planning and land authority may be required to give the conservator a copy of each development application for a development proposal in the merit or impact track (see Planning and Development Act 2007, s 148). This requirement would not apply to a development application for a development proposal in the code track (see Planning and Development Act 2007, s 117 (c)).
Note 2Conservator to give advice on application
The conservator gives advice to the planning and land authority in relation to tree protection and the development (see s 82 and s 83) (see also Planning and Development Act 2007, s 149, s 150 and s 151).
Note 3Conservator’s advice to be considered
The conservator’s advice is to be considered by the planning and land authority (or the Minister) in approving or refusing to approve a development application (see Planning and Development Act 2007, s 119 (2), s 120 (d), s 128 (2) and s 129 (e)).
Note 4Approvals
A development approval that is inconsistent with the conservator’s advice in relation to a registered tree must not be given. A development approval that is inconsistent with the conservator’s advice in relation to a regulated tree may be given only in the circumstances prescribed in the Planning and Development Act 2007, s 119 (2) and s 128 (1) (b) (iii).
The development application had been lodged in the merit track, and it was not in dispute that, as explained at [18]–[21] above, the application had had to be referred to the Conservator, the Conservator was required to provide advice within 15 working days after receiving the referral, and if no such advice was received, the Conservator was taken to have given advice supporting the application.
The only link between a development application and the provisions of the Tree Protection Act that emerges from the provisions of that Act and the Planning Act is that arising from the Conservator’s role in advising on the treatment of protected trees potentially affected by the proposed development. Even in that context the Tree Protection Act has little to say about how the Conservator fulfils that role, beyond reminding the Conservator to have regard to the Guidelines for Tree Management Plans (at [52] above).
ACAT review – Mr Glass’s contentions
For the purposes of Mr Glass’s application for ACAT review of the development approval, he identified a number of different “contentions”, or grounds for challenge of the decision.
The contentions identified in the relevant ACAT decision (ACAT 96) were as follows:
Contention 1 – approval process concerns
Contention 2 – Block 10 is not suitable for development of the kind proposed
Contention 3 – development not consistent with the desired character in terms of building height
Contention 4 – development not consistent with the desired character in terms of building bulk and scale
Contention 5 – development not compliant with the CRFLG General Code
Contention 6 – development does not provide for reasonable privacy for dwellings and principal private open spaces on adjoining residential blocks
Contention 7 – insufficient justification for removal of Regulated Tree
Contention 8 – development not consistent with the residential zones objective to provide for a wide range of housing choices
ACAT upheld only Contention 3, relating to building height and the operation of rule 7 and criterion 7 in the relevant Code. ACAT’s reasons for decision concluded as follows:
242. The Tribunal has concluded that the proposed development complies with the Territory Plan in every respect, save that Buildings B, D and E need to be reconfigured or redesigned in a manner that achieves compliance with rule 7 or criterion 7(a) of the CFZ Development Code. There are many options or means by which this could be done. They are matters for Goodwin Homes to consider. The Tribunal expects it could be done by amendment to the development application pursuant to section 144 of the P&D Act.
243. In these circumstances, and where the decision under review does not deal separately with any of the proposed buildings, the Tribunal has concluded that the preferable course is to set aside the decision and remit it to the Planning Authority for it to reconsider the proposed development having regard to any amendments to the development application that the applicant proposes in order to address the existing non-compliance with criterion 7(a) of the CFZ Development Code. The Tribunal will therefore so order.
The contention entitled “insufficient justification for removal of regulated tree” (described in different documents before me as contention 5 or contention 7) was summarised by ACAT as complaining that “removal of regulated tree 8, as depicted on the landscape plan, had not been adequately considered.” ACAT rejected that contention, for reasons set out as follows:
233. First, relevant to tree protection, rule 21 of the CFZ Development Code required the Planning Authority to refer the development application to the Conservator of Flora and Fauna where the development was “likely to cause damage to or removal of any protected trees”. That occurred in this case. That was sufficient for the purpose of compliance with rule 21. Where the development complies with the approved applicable rule on the point, pursuant to section 121(2)(a) of the P&D Act, the Tribunal has no jurisdiction to review the Conservator’s response or the Planning Authority’s subsequent actions or decisions.
234. Second, there was no suggestion from the Conservator that Tree 8 should be retained. The Conservator’s only comment was in relation to trees 209, 210 and 218, the removal of which needed to be considered under the P&D Act. The Planning Authority did so, and determined that they could be removed. The Tribunal does not have jurisdiction to revisit the issue.
235. By letter dated 29 February 2016, the Conservator confirmed support for removal of Tree 8. Again, the Tribunal cannot revisit the issue.
Application for leave to appeal
The proceedings in which Mr Glass’s application for leave to appeal was heard, and the statutory restrictions on the right of appeal in the current circumstances, have been outlined above. It is now necessary to deal with Mr Glass’s claims.
Draft notice of appeal
Mr Glass’s application for leave was accompanied by a draft notice of appeal, which contained the following explanation of the proposed appeal:
1.On 18 November 2015 a delegate of the ACT Planning and Land Authority approved subject to conditions a development proposal submitted on behalf of Goodwin Aged Care Services Ltd (the decision under review). Part of that approval comprised:
removal of regulated trees nos 209, 210 and 218 and other regulated trees as approved by the Conservator of Flora and Fauna
2.On 21 October 2016 the Tribunal by order varied the decision under review but that part of the decision relating to the removal of trees was not affected.
3.The appellant appeals that part of the order that approves the decision to remove regulated trees.
4.…
5.…
6.This appeal is made on the basis that the decision involves errors of law as follows:
a.The Tribunal erroneously determined that it had no jurisdiction to review the Authority’s decision to approve the removal of regulated trees.
b.The Tribunal drew an inference which was not open to it on the primary facts.
c.The Tribunal failed to determine for itself whether the evidence supported the removal of regulated trees pursuant to the Tree Protection Act 2005.
Mr Glass identified the substantive order sought in his proposed appeal as:
to remit the case to be heard and decided again with the hearing of further evidence from the Tree Advisory Panel of the Territory and Municipal Services Directorate in accordance with any directions the court considers appropriate.
The draft notice of appeal identifies the subject of the appeal as “that part of [ACAT’s] order that approves the decision to remove regulated trees”. However, that order, except to the extent that it depended on ACAT’s response to Mr Glass’s complaint about tree 8, did nothing more than to confirm a part of the ACTPLA decision that had not been challenged in ACAT: I can see no basis on which ACAT’s apparently uncontroversial decision to confirm an unchallenged aspect of the original decision could have raised a question of law that could usefully be considered by the Supreme Court.
The draft notice asserted three errors of law. The first “error”, relating to ACAT’s conclusion that it had no jurisdiction to review ACTPLA’s decision to the extent that it approved the removal of regulated trees, could have been reformulated as a question of law about the impact of s 121(2)(a) of the Planning Act on ACAT’s power to review a decision made after compliance with any applicable rule in the applicable Code. That asserted error is dealt with at [77] to [95] below.
The second asserted “error of law” appears to describe, if anything, an error in dealing with a fact or facts.
The third asserted error seems to be a question-begging exercise to the extent that it assumes that ACAT was obliged to determine for itself whether any regulated trees should be removed (an assumption which in any case appears to be incorrect); to the extent that it does not assume this, it seems to be raising a question that would only have arisen (and even then, only in relation to tree 8), if the first error had been made out, and in the circumstances does not help Mr Glass’s claim for leave to appeal.
Written submissions 30 January 2017
In Mr Glass’s written submissions he addressed the “errors of law” specified in the draft notice of appeal, but also provided another list of errors of law asserted to have occurred in the making of the decision, as follows:
(a)There was a failure to take a relevant consideration into account in the exercise of a power.
(b)A discretionary power was exercised in accordance with a rule or policy without regard to the merits of the particular case.
(c)There was no evidence or other material to justify the making of the decision.
(d)Procedures that were required by law to be observed in connection with the making of the decision were not observed.
(e)A breach of the rules of natural justice occurred in connection with the making of the decision.
The errors listed seem to represent simply a sample from a list of the many possible errors that may occur in the making of administrative decisions, such as is set out in relevant legislation (see, for instance, s 5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT)). However, Mr Glass did not provide any more information about how or where in the process these errors had occurred; in fact he did not even clarify whether the errors were alleged to have occurred during ACTPLA’s decision-making process, or that of ACAT. I shall say no more about these alleged errors.
Amended draft notice of appeal
In the amended draft notice of appeal filed on 23 February 2017, Mr Glass set out nine issues, framed as questions and said to be questions of law arising in the proposed appeal, as follows:[1]
a. Was the decision-maker when exercising the discretion vested in it by ss 162(6)(b) of the Planning and Development Act 2007 (the P&D Act) to approve a Tree Management Plan (TMP) required to have regard to ss 35(4) of the Tree Protection Act 2005 (the TP Act)?
b. Was the decision-maker when exercising the discretion vested in it by ss 162(6)(b) of the P&D Act required to have regard to the TMP Approval Criteria listed in the Guidelines for Tree Management Plans (the Guidelines) approved under s 31 of the TP Act?
c. Was the decision-maker when exercising the discretion vested in it by ss 162(6)(b) of the P&D Act bound to consider whether the proposed tree removal activities were in accordance with the Tree Protection Approval Criteria made under s 21 of the TP Act?
d. If questions 6 (a, b and c) are answered in the negative, what considerations inform the decision-maker’s discretion to approve a TMP under ss 162(6)(b) of the P&D Act?
e. Did the decision-maker in considering the Conservator’s advice under Rule 21 of the Community Facility Zone Development Code draw an inference that was not open to it on the primary facts, namely an inference that the regulated trees to be removed satisfied the Tree Protection Approval Criteria?
f. Given the inability to seek an administrative review of the Conservator’s advice where the decision-maker is considering for approval a TMP included with a development application, does the interpretation of Rule 21 adopted by the decision-maker impermissibly deny administrative review of any subsequent decision to approve or disallow the removal of protected trees?
g. Did the Tribunal in exercising its administrative review function by standing in the shoes of the original decision-maker exercise the discretion vested in it by ss 162(6)(b) of the P&D Act without taking into account a consideration that it was bound to take into account, namely evidence put before it that the proposed tree removal activities were not in accordance with the Tree Protection Approval Criteria?
h. Are the Guidelines for Tree Management Plans applicable guidelines for the purposes of ss 119(2)(a)(i) of the P&D Act when a tree removal activity is being considered under that section?
i. Is the Tribunal’s jurisdiction to review a decision made under ss 162(6)(b) of the P&D Act qualified by ss 121(2)(a) of the P&D Act with particular regard to the relevance if any of Rule 21 of the Community Facility Zone Development Code?
These are certainly questions, and some of them, in the abstract, raise interesting questions of law. However, apart from item i. (which sets out another version of the question of law apparently raised by the “error of law” at 6.a of the draft notice of appeal), most of the questions would have been relevant (if at all) to the original decision-making process engaged in by ACTPLA and were not relevant in the ACAT review from which an appeal may lie to the Supreme Court.
Furthermore, many of the questions assume that ACTPLA, in approving the development application, had approved a tree management plan for one or more of the regulated trees, even though there is nothing in the notice of decision that refers to a tree management plan; thus it is not clear that any of the questions referring to the exercise of the power under s 162(6)(b) of the Planning Act are relevant in the current case at all.
A major problem for Mr Glass was that the ACTPLA decision he complained about had already been reviewed in ACAT, at his instigation, and for whatever reason he had at that point complained about ACTPLA’s treatment of one tree only; that is, that ACTPLA had failed to give proper consideration to the removal of tree 8. This meant, among other things, that however many of the new questions did in fact raise questions of law, they did not raise questions of law that arose from the ACAT proceedings. This in turn meant that, even if he had tried to do so, Mr Glass would not have been able to explain how ACAT had answered the asserted questions of law incorrectly, and how the answers that he claimed were correct would have resulted in a better outcome for him in the ACAT proceedings.
The nine questions provided by Mr Glass did, however, confirm the scale of the consideration that Mr Glass was hoping to achieve through his proposed appeal to the Supreme Court; a common theme emerging from the questions was the assumption that ACTPLA (and indeed ACAT), should routinely second-guess entity advice (or at least the Conservator’s advice), including the processes by which that advice was developed, even though such an assumption seems to be entirely inconsistent with the effect of provisions such as ss 148, 149 and 150 of the Planning Act.
It was not clear to me whether Mr Glass’s assumption reflected a mistaken belief about the current relationship between the Tree Protection Act and the Planning Act (that had not in Mr Glass’s view been properly implemented by ACTPLA or enforced by ACAT), or an attempt to generate a review of that relationship in the hope of establishing a requirement for such second-guessing by showing that the policy currently reflected in the legislation unacceptably confines the right to a review of administrative decisions in planning matters, or at least planning matters involving trees. Even if an appropriate case for such an inquiry could be imagined, this is not it.
Finally in this context I note that, presumably because of Mr Glass’s somewhat skewed view of the ACT’s planning arrangements and the place of tree protection in those arrangements, it was implicit in many of his complaints and propositions that there was scope not just for review of a particular decision (in this case, review of ACTPLA’s approval decision by ACAT and limited review of ACAT’s decision by the Supreme Court) but also for review of any decision antecedent to the decision under review, including decisions made by other authorities. Such reviews are generally unavailable (see Tradesmen’s Union Club and Ors v Minister for the Environment, Land and Planning (1997) 131 ACTR 1 at 7). However, the issue was not canvassed in any detail before me, and I express no further conclusions about its significance in this case.
In the end, the only matter raised by Mr Glass that, as far as I could see, could have given rise to a useful question of law was whether as a matter of law ACAT did have jurisdiction to review ACTPLA’s treatment of the advice from the Conservator about tree 8 (the first error of law mentioned in the original draft notice of appeal and the core question raised in item i. in the amended draft notice of appeal).
Was ACAT wrong about its jurisdiction?
Mr Glass’s arguments
In support of his claim that ACAT had made an error of law in finding that it had no jurisdiction to review ACTPLA’s decision in relation to tree 8, Mr Glass made submissions complaining about the procedural aspects of ACAT’s consideration of s 121 of the Planning Act, relying on another ACAT case that had not been considered by ACAT in his matter, and offering what he presumably intended as an explanation of how a favourable answer to the question arising from the asserted error would have produced a more favourable result for him (at [110] below).
Procedural unfairness: failure of ACAT to raise jurisdictional issue
Mr Glass pointed out that on the final day of the substantive hearing before ACAT, he was given leave to make a submission regarding whether trees other than tree 8 also did not satisfy the removal criteria under the Tree Protection Act, and whether those trees also required consideration under the Planning Act. At that point, he said, no indication was given by anyone that there was “a jurisdictional difficulty”. Mr Glass says that the issue “could not have been reasonably foreseen on the material available”, and accordingly that, on the authority of Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 590-592, it was a breach of procedural fairness for him:
(a)not to have had his attention directed to the jurisdictional issue; and
(b)not to have been given an opportunity to make submissions on the issue.
There are various reasons why this particular complaint should be rejected.
First, I cannot see that when Mr Glass was given leave to refer to trees other than tree 8 as mentioned in his relevant contention, and went on to refer specifically to tree 89 but also generally to the fact that 12 of the 84 regulated trees had been nominated for retention and protection, this raised any new jurisdictional issue. The jurisdictional issue had already been raised by Mr Glass’s complaint that ACTPLA should not have approved the removal of tree 8, but because of the form of ACTPLA’s decision the complaint about tree 8 had had to refer to the general approval given by ACAT which implicitly approved the removal of tree 8 and all the other regulated trees identified in the Tree Management Plan.
Secondly, the significance of s 121 more generally was raised several times during the three-day ACAT hearing of Mr Glass’s application for review, including on the first day and on the last day, when submissions about its impact were made.
It is fair to say that counsel’s various references to s 121 during the hearing may not have alerted Mr Glass to the detail or complexity of the issue, although they should have alerted him to its existence. On the other hand, by the time Mr Glass produced his January 2017 submissions and returned to the Supreme Court in February 2017, he certainly had a copy of the relevant ACAT decision (ACAT 96), but in his submissions on the leave application he made no effort to respond to the arguments about s 121 carefully explained and canvassed by ACAT in that decision. Instead he sought to direct the court’s attention away from where the jurisdictional issue had been considered in detail by ACAT (in the current case and other cases) and towards a decision in which s 121 was barely mentioned and did not raise the same issues as the current case.
I do not intend to respond in detail to Mr Glass’s submissions about Alphaone, but I note that in that case the Federal Court (Northrop, Miles and French JJ) said (at 591-592):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
The current situation does not fall clearly within the principles articulated by the Federal Court. First, it did not apparently involve “adverse material from other sources which is put before the decision-maker”, but neutral material (that is, relevant provisions of the legislation under which the decision concerned was made and was specified as reviewable) available to all parties. Secondly, it was not an issue “which is not apparent from its nature or the terms of the statute under which it is made”, but an issue arising directly from the explicit terms of the statue concerned, which had been mentioned (including by reference to the specific section of the Planning Act) several times during the hearing, albeit perhaps somewhat obscurely to a layman.
Reliance on ACAT decision in which jurisdictional issue not raised
Mr Glass sought to rely on a 2015 ACAT decision (Deakin Residents Association Inc v ACT Planning and Land Authority& Anor [2015] ACAT 37 (Deakin)) a matter which he described as “not dissimilar to that at issue here”. He submitted that in Deakin:
(c)ACAT had “overruled an ACTPLA decision to approve removal of a regulated tree notwithstanding that the Conservator had supported removal” (emphasis added); and
(d)the ACT Government Solicitor acting for ACTPLA “did not apparently raise any question of Tribunal jurisdiction”.
Mr Glass’s reliance on this decision can be criticised on two important grounds.
First, his summary of the position in Deakin appears to be wrong in a fundamental respect: the ACAT decision was in fact made in the context that the Conservator had opposed rather than supported removal of the tree concerned. At [87] of the decision, ACAT said:
The Notice of Decision [given by ACTPLA] stated that “this decision approves the removal of the Eucalyptus bicostata tree and therefore, the decision is inconsistent with the Conservator’s advice in relation to this tree. However, pursuant to section 119(2) of the Act, I have considered the advice received as well as the relevant guidelines and any realistic alternative to the development proposed or aspects of it. A decision to approve this application is consistent with the object of the Territory Plan, in that, the removal of this tree will allow for efficient use of the site”.
(emphasis added)
That is, ACTPLA had approved the tree removal, despite the Conservator’s advice, after reciting that it had complied with s 119(2) of the Planning Act, including by considering alternatives to the proposed development. ACAT, however, found that ACTPLA had not properly complied with s 119(2) because it had not considered realistic alternatives, and it was this failure that vitiated the ACTPLA decision. In other words, the ACAT decision did not address the scope for setting aside an ACTPLA decision that was consistent with advice received after compliance with r 21 (or an equivalent).
Secondly, it is worth noting that the fact that a particular point has not been taken in an apparently similar matter does not in any way establish that the point, if taken, would and should have been rejected by the tribunal concerned and therefore should be rejected by a later tribunal or reviewing body. Even the fact that a particular point had been taken and rejected in a similar matter would not generally bind another decision-maker at the same level in the decision-making hierarchy; on the other hand, it would give the second decision-maker the benefit of the explanation given by the first decision-maker for rejecting the point.
In the current case, ACTPLA’s decision about tree 8 was entirely consistent with the Conservator’s advice, which supported the removal of tree 8 (both in its late advice providing general support for tree removal except for the three specified trees, and in its deemed advice in support of the development proposal as a whole).
For these reasons, the decision in Deakin was not an adequate basis for concluding that the equivalent provisions of the Planning Act had no significance in this case, where the relevant rule had been complied with and ACTPLA had acted in accordance with the advice received pursuant to the referral required by the rule.
ACAT’s reasoning
ACAT’s conclusion that it had no jurisdiction to review the content of the Conservator’s advice was set out in ACAT 96 at [233] and [234] (quoted at [59] above). However, earlier in that decision, at [24]-[44] of the relevant decision, ACAT had considered the issue. First it commented on the relationship between Code rules and criteria on the one hand and zone objectives on the other, but then it said:
34. Only if there is consistency with relevant rules and criteria does the question arise whether the Tribunal has jurisdiction to go further. If the Tribunal has jurisdiction to consider the issues set out in section 120 then (under that section), as the “decision-maker” on review, it “must consider” them where relevant. If section 121(2) denies that jurisdiction, then it cannot consider these issues.
35. The Tribunal turns therefore to the question whether it has that jurisdiction.
36. In Mason upon which Mr Erskine relied, the Tribunal said:
The Tribunal has weighed up these submissions and has reached the following conclusions in regard to them.
i) The Tribunal does not have the same responsibility as the original decision maker in relation to approval or otherwise of the DA. While it is bound by the prohibitions set out in s 119 of the Planning Act, it is not able to have regard to the matters set out in s 120, including the Suburban Core Zone general objectives set out in Section 3.1 of the Plan. Section 121(2) of the Planning Act makes it clear that any review is to be limited to the extent that the proposed development complies with the relevant Rules and Criteria. If a Rule is complied with, then the DA cannot be disapproved by the Tribunal on that aspect of the proposal, even if it considers that the associated Criteria are not fully satisfied or that the Zone’s general objectives have not been achieved.
ii) Nevertheless, the Tribunal is entitled to satisfy itself from the evidence given whether or not a Rule has been complied with; it is not obliged to accept the decision of the original decision maker.
iii) If it is established that a Rule has not been satisfied, or if there is no Rule, then the Tribunal is free to consider the extent to which the proposal satisfies the Criteria and, if it concludes that any of the Criteria are not satisfied, then it may set aside an approval of the proposal or impose conditions that will overcome the deficiencies identified.
iv) The Tribunal considers that the Rules of the Code are a set of standards which apply broadly to all residential areas of Canberra in part, but with some specific provisions for different zones such as RZ1, RZ2, RZ3 etc. The Rules apply without regard to the characteristics of a specific site or context. If a Rule is met then there is a presumption that that aspect of the proposal has achieved a desired outcome and meets the intent of the element.
v) Criteria are framed in a quite different way and enable proposals to be assessed having regard to the specific site, its topography and context, including the proximity and characteristics of adjoining buildings and spaces. An assessment against Criteria may potentially be helped by reference to the standard of the related Rule but clearly the Plan does not require this. The assessment that is required under the Criteria is one which more directly considers the impact and design quality of a proposal. (emphasis added)
37. These statements were qualified on appeal.
38. In Catherine Rudder v ACT Planning and Land Authority and Ors [2010] ACAT 24 (Rudder), the Appeal Tribunal determined that the above quoted statement of the Tribunal’s jurisdiction was (in part) wrong. At [14] – [15], the Appeal Tribunal said:
14. When the original tribunal referred to the “responsibility” of the Tribunal it was referring to the ACAT’s jurisdiction in these matters. That issue and the interpretation of Section 121(2) of the Planning and Development Act 2007 (Planning Act) was further considered in detail by the ACAT in the decision of Thomson v ACT Planning and Land Authority [2009] ACAT 38. We accept and adopt that decision.
15. That decision confirms that the Tribunal’s jurisdiction to review decisions about development proposals in the merit track is limited by section 121(2) of the Planning Act and that the limiting factor is compliance with a relevant rule. If a development proposal complies with a relevant rule, the Tribunal cannot review the decision to approval (sic) the proposal on that point. Compliance with relevant criteria does not limit the Tribunal’s jurisdiction. The original tribunal’s statement was incorrect in so far as it referred to compliance with relevant criteria as a limitation on the Tribunal’s jurisdiction. While it is important that the error is acknowledged and corrected so that readers of the decision are not misled, it does not follow that the error should lead to the setting aside of the decision of the original tribunal. (emphasis added)
39. The Appeal Tribunal in Rudder at [21] – [22] went on to explain that the Tribunal in Mason at first instance had nevertheless not fallen into error because it had considered the matters in section 120.
40. For three reasons, the Tribunal accepts the submission of the Planning Authority.
41. First, the passage in Mason on which Mr Erskine relied was overruled on appeal. The Appeal Tribunal in Rudder interpreted section 121 in a manner consistent with the position taken by the Planning Authority.
42. Second, if the legislature intended to confine the Tribunal’s jurisdiction on review to consideration of whether applicable criteria were met, it could have easily said so. Instead, where no rule applies, the Tribunal’s jurisdiction is stated in section 121(2)(b) at large.
43. Third, the Planning Authority’s submission about the operation of section 121(2) causes compliance with a rule concerning a point (i.e. the subject of the rule) to be determinative of the point, but otherwise places the Tribunal in the same position as the Planning Authority. That interpretation should be preferred where the Tribunal’s overarching function is de novo review.
44. For these reasons, the Tribunal concludes that it has jurisdiction to consider the objectives of the zone where the development is approved to occur, subject to the constraint that where a development is subject to a rule concerning an issue or point and is compliant with that rule the Tribunal cannot further consider the issue or point.
What does s 121 mean?
Section 121 is set out at [15] above.
The provision expressly limits the scope of ACAT review of a decision to approve a development proposal in the merit track. The nature of the limit is, at least, that ACAT cannot review a decision to the extent that it reflects compliance with an applicable rule.
In the current case, I considered that it was clear in relation to the development application that r 21 was complied with, and that ACAT was therefore prevented from going behind the result of that compliance. I did not disagree with ACAT’s conclusions so far as they were relevant in relation to the current case.
However, it is worth noting briefly the possible uncertainty in ACAT’s subsequent conclusions:
(a)at [43] of its decision, that:
the Planning Authority’s submission about the operation of section 121(2) causes compliance with a rule concerning a point (i.e. the subject of the rule) to be determinative of the point, but otherwise places the Tribunal in the same position as the Planning Authority;
(b)at [44] of its decision, that:
where a development is subject to a rule concerning an issue or point and is compliant with that rule the Tribunal cannot further consider the issue or point.
The uncertainty concerns the scope of the expressions “point” and “issue” in confining ACAT’s jurisdiction.
For instance, where (as in the current case):
(a)r 21 was complied with;
(b)the result of the referral was support for the development application; and
(c)the development application was approved;
I was satisfied that s 121 prevented any further review of the development approval in relation to the trees concerned.
However, in Deakin, in which:
(a)an equivalent to r 21 was complied with;
(b)the result of the referral was opposition to the relevant aspect of the development application; and
(c)the development application was approved by ACTPLA after stating that it was satisfied of the matters raised by s 119(2) in relation to that part of its decision relating to the protected tree;
the conclusion was that ACAT was able to review the aspect of the approval decision relating to the protected tree.
This suggests that the effect of s 121 will depend in some cases on the exact identification of the “point” or “issue” that is “the subject” of r 21 or an equivalent rule: for instance, is the subject of r 21 the referral of a proposal to the Conservator, or a more general topic such as, for instance, the protection of trees. The decision in Deakin (albeit that s 121 was not usefully addressed in that case) might suggest that the “point” or “issue” will be narrowly defined so as not to narrow ACAT’s review powers unduly. On the other hand, the real significance of Deakin may be not that the subject of a rule should be narrowly defined but that the significance of a rule and whether it has been complied with disappear as soon as ACTPLA purports to exercise a discretion conferred separately from the rule (such as under s 119(2)).
To the extent that questions of the nature raised above remain unanswered, ACAT’s comment at [233] may go too far, at least to the extent that it says that, under s 121(2)(a) of the Planning Act, compliance with a rule excludes review of all “subsequent actions or decisions” by ACTPLA.
Other asserted errors of law
Mr Glass’s other submissions in support of his application for leave to appeal appear to have related to the second and third asserted errors of law, which I had concluded did not raise relevant questions of law, and do not need to be addressed in any detail.
However, I note that the submissions assumed a requirement that review by ACAT would involve a complete re-assessment of the decision under review, and further assumed that this re-assessment:
(a) should have been carried out by ACAT irrespective of the particular challenges to the decision that were put before it; and
(b)should have involved a fundamental review, from both legal and policy perspectives, of the interaction between the Planning Act and the Tree Protection Act.
Many of those other submissions relied on a variety of more or less unsound assumptions about the operation of the relevant legislation; I do not propose to address all of them, but it is worth mentioning one of those submissions as an example of Mr Glass’s willingness to attribute a meaning to legislation not by applying logic and common sense but apparently by applying some sort of magical thinking against the background of his wishes and hopes.
Among his various submissions to the effect that the Conservator’s advice was not properly considered by ACTPLA (and, by implication, that it was not properly reviewed by ACAT), Mr Glass pointed to the requirement, in the Tree Management Plan Guidelines (at [52] above), for Tree Management Plans that are included with development applications for “major developments”. An unnumbered paragraph of the Guidelines says:
The following additional information is required if the [Tree Management Plan] is to be submitted as part of a DA for a Major Development project:
· A photograph of each Protected Tree; and
· Classification of each tree as poor, medium, high or exceptional quality as assessed by a qualified arboriculturalist. (emphasis in original)
Mr Glass’s submission was to the effect that this requirement would have no purpose unless it was intended to inform ACTPLA in the task of properly considering the Conservator’s advice as part of considering the development proposal.
It is, however, by no means obvious that the only reason ACTPLA is required to be given the photographs and assessments as part of the development application is because it is expected to second-guess all details of the Conservator’s assessment of the tree protection aspects of the development proposal.
There are various other possible reasons for the requirement: I mention only one apparently rational one, being that inclusion of the required information as part of the development application would probably be more efficient. Among other things, it would mean that, when ACTPLA refers the application to the Conservator, the information required for the Conservator to do his or her job is available to be included in the reference, and obtaining that information from the applicant for development approval does not waste any of the 15‑working-day period within which the Conservator is required to provide comments.
Discretionary factors in considering leave
Whether a different decision by ACAT would have improved Mr Glass’s position
Mr Glass’s submissions included a discussion of how matters might have turned out if ACAT had agreed to review ACTPLA’s treatment of the advice of the Conservator; I assume this was Mr Glass’s way of explaining how his position would have been improved if he had successfully appealed against ACAT’s approval of the amended development proposal (see [9(b)] above).
Mr Glass’s submission involved an elaborate hypothesis under which a successful appeal would first have operated to unravel the approval process from the time the development application was first referred to the Conservator. Mr Glass’s hypothetical scenario involved the following steps in the second approval process:
(a)The Conservator, second time around, would have given different advice to ACTPLA: Mr Glass provided a draft of what he said was the “correct advice” for the Conservator to give, being in essence that the development application was not supported because none of the 40-odd regulated trees fulfilled the criteria for removal under the Tree Protection Act for removal, and all removals would have had to be considered under the Planning Act.
(b)The Conservator’s opposition to the removal of the large number of trees would have required ACTPLA to satisfy the requirements of s 119(2) by considering applicable guidelines, realistic alternatives, and whether approving the development would be “consistent with the objects of the territory plan”.
(c)There was a reasonable doubt that all the trees would have again been approved for removal under the Planning Act, because ACTPLA would have found it difficult to satisfy s 119(2), in particular because:
(i)the Tree Management Plan Guidelines (at [52] above) would have prevented or constrained removal of the trees;
(ii)no “realistic alternatives” to the removal of the trees would have been found; and
(iii)the removal of the large number of trees “would seem to be inconsistent with the objectives of the Territory Plan” by reference to the Plan’s “Statement of Strategic Directions”, which notes (at 2.16) that “special attention will be given to … protecting vegetation”.
Curiously, Mr Glass’s submissions did not articulate the further consequence of ACTPLA being unable to satisfy the requirements of s 119(2), being that it could not have approved the development proposal. Instead, his hypothesis concluded with the claim of a reasonable doubt that all the trees concerned would be able to be removed (I mention in passing that I do not understand the particular significance of the claim of “reasonable doubt” in this context).
There were various problems with Mr Glass’s hypothetical, starting from his assertion that, once the process was re-opened, the Conservator would have given quite different advice about the removal of trees. I do not intend to spend time dissecting Mr Glass’s claims about why the Conservator’s original advice was wrong, except to note in general terms that the Tree Protection Act does not seem to me to be aimed at preventing any development in the Territory that threatens a protected tree, but to be part of a scheme by which competing interests (environmental, social and economic) can be balanced and managed to the benefit of the community as a whole. Sometimes, unfortunately, that will involve the removal of a protected tree.
I note also that Mr Glass’s reliance on the Tree Management Plan Guidelines to constrain the removal of the trees (at [110(c)] above) may be misplaced; I suspect that the reference in s 119(2)(a)(i) to “applicable guidelines” is a reference to guidelines that are made by the Minister under the Planning Act (see s 420 of the Planning Act) and applicable to ACTPLA decision-making, and that it does not include a reference to the Tree Management Plan Guidelines made under s 31 of the Tree Protection Act. Furthermore, Tree Management Plans may be prepared by the Conservator, by a land management agency or by any other person, and the Guidelines explain the required form of such plans and the matters they should deal with rather than the specific contents of any such plans. The Guidelines require the inclusion in a Tree Management Plan of particular information in relation to the proposed removal of a regulated tree, but there is nothing in the Guidelines directly preventing the removal of such a tree.
Finally, as to Mr Glass’s claim that removal of the large number of trees “would seem to be inconsistent with the objectives of the Territory Plan”, I note first that s 119(2)(b) of the Planning Act requires the decision-maker, before making a decision inconsistent with advice given by an entity (relevantly the Conservator) to be satisfied that the decision is consistent with the “objects” (rather than the “objectives”) of the Territory Plan. The object of the Territory Plan is set out at s 48 of the Planning Act, as follows:
The object of the territory plan is to ensure, in a manner not inconsistent with the national capital plan, the planning and development of the ACT provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.
Mr Glass’s reference to the “objectives of the Territory Plan”, and then his suggestion that the relevant objective can be found in a paragraph of the Statement of Strategic Directions which refers, among other things, to the giving of special attention to “protecting vegetation”, was in my view disingenuous at best.
The Statement of Strategic Directions is part of the Territory Plan: it contains 43 paragraphs covering a wide range of matters. Many of the paragraphs relate largely or solely to environmental concerns, but many others relate to “economic sustainability” and “social sustainability”. These include, relevantly, the provision of “affordable, adaptable and special-needs housing … throughout the city” (at 1.21); the recognition of the needs of people with disabilities (at 1.23) may also be relevant.
Paragraph 2.16, on which Mr Glass relied, is as follows:
Retention of Canberra’s unique landscape setting, including the integration of natural and cultural elements that create its ‘garden city’ and ‘bush capital’ qualities, will be accorded the highest priority. Special attention will be given to safeguarding visual amenity, protecting vegetation and other important features within the established urban landscape, and ensuring the high quality of environmental design in new developments or redevelopment.
The Statement of Strategic Directions, even assuming that it was directly relevant in the current case, could not sensibly be read as suggesting that all vegetation must be protected at all times, even at the cost of interfering with the achievement of other identified strategic directions.
Whether Mr Glass would have suffered prejudice or injustice from a refusal of leave
Mr Glass sought to identify prejudice to himself from the proposed development proceeding in its current form. His main concern appeared to be the “substantial denudation of an attractive well-treed site”, and the replacement of the “present treescape … by an almost continuous wall of 4, 5 and 6 storey buildings”; this outcome was said to confer legitimate expectations on local residents and:
the community at large … that new developments will be properly assessed against the provisions of the TP Act and the P&D Act before approval is granted.
Despite this reference to the community’s expectations that new developments will be properly assessed, it is clear that Mr Glass’s real concern was not about the processes but about the outcome. His ultimate aim might have been to prevent the new development entirely, but his more realistic ambition was to protect remnant tree 8, as well as tree 89 (not previously mentioned in his challenges), so as to require the largest of the proposed new buildings to be moved to a “less dominant position” and thereby “mitigate to some degree the safety/privacy concerns and the other adverse impacts upon the established urban landscape”.
In effect, since the other concerns he had expressed about the proposed development were apparently not sufficient to result in it being abandoned or significantly modified, Mr Glass sought to use complaints about the tree protection processes to preserve two trees whose real significance was not their own qualities but that their presence on the site would prevent important (or in Mr Glass’s view, particularly objectionable) aspects of the development proceeding.
Although Mr Glass was hesitant to identify the prejudice to himself as a loss of visual amenity (not to be confused with “views”) caused by the proposed development, it is hard to identify any other real prejudice. No doubt the spread over time of a community perception that new developments are not properly assessed before being approved would be unfortunate, but so would a community perception that established residents of a neighbourhood have an effective veto over any developments in their neighbourhood, however worthwhile or important to the broader community. Noting that Mr Glass had already had an opportunity to comment on the development proposal as part of the approval process, and an opportunity to have the development approval reviewed in an independent tribunal, I was entirely unpersuaded that refusing him leave to appeal the ACAT decision would cause him or his community any real prejudice or injustice.
Whether decision involved a matter of public importance
As to the public importance of this decision, Mr Glass identified three matters, being:
(a)the general significance of the proposed development site in the suburb of Farrer and the area of Woden Valley;
(b)the high quality of many of the trees approved for removal, and the heritage value of remnant tree 8; and
(c)the need to resolve the “contradiction” between the decision in Deakin and ACAT’s finding that it had no jurisdiction to review the tree management processes involved in the approval of the development application.
Neither of the first two matters rendered ACTPLA’s decision, or that of ACAT, a matter of public importance. Nor was it clear to me that there was any necessary contradiction between the decision in Deakin and the decision in this case about the effect of s 121(2); although as already noted there may at some point be a need for further clarification about s 121(2), the current case was not a suitable case in which to obtain any such clarification.
Conclusions
At the end of the hearing, Mr Glass had put before me a total of eight asserted errors of law (at [61] and [67] above) and nine asserted questions of law (at [69] above).
Most of the questions of law were not raised by the ACAT decision which Mr Glass sought to appeal, and some of them were not even raised by the ACTPLA decision.
One of the asserted errors of law (relating to ACAT’s determination that it had no jurisdiction to review ACTPLA’s treatment of tree 8), could have been formulated as a useful question of law. That matter was also the only one in relation to which Mr Glass had provided submissions that had the potential to address the other prerequisites for a grant of leave to appeal.
Mr Glass’s submissions in support of the relevant proposition (that ACAT did have jurisdiction to review ACTPLA’s adoption of the Conservator’s advice in relation to tree 8) did not go further than referring to another ACAT decision which, because it related to review of an ACTPLA decision departing from the Conservator’s advice, was not directly helpful to Mr Glass.
Mr Glass’s attempt to explain how his position would be improved if he was permitted to challenge the relevant aspect of the ACAT decision was unconvincing, given its reliance on:
(a)readings of relevant legislation and case law that might politely be described as idiosyncratic; and
(b)a sequential set of hypothetical (and in my view more or less unlikely) events that might have followed a Supreme Court decision granting leave to appeal and a subsequent (hypothetical) Supreme Court decision to uphold Mr Glass’s challenge and to refer his complaint about tree 8 back to ACAT for review.
It seemed highly unlikely that a grant of leave would ultimately result in ACTPLA refusing to approve any proposal that would require the removal of tree 8, let alone refusing to approve any proposal that would require the removal of any or all of the 40-odd other protected trees affected by the approved proposal. In short, the grant of leave seemed highly unlikely to improve Mr Glass’s position except to the extent that further protracted legal proceedings would continue to delay the development.
I could not identify any prejudice likely to be suffered by Mr Glass if leave were refused other than a general “loss of visual amenity” in his immediate neighbourhood. Given the flaws in Mr Glass’s case already mentioned, it seemed unlikely that the pursuit of this matter in the Supreme Court would have reduced the risk of that prejudice in any meaningful way (again, except by delaying it for some period).
Finally, ACTPLA’s decision to approve the development clearly included discretionary elements, although the discretionary element of simply accepting the Conservator’s advice about tree 8 was relatively minor. On the other hand, given Mr Glass’s indication that his ultimate aim was reconsideration of all the relevant discretionary decisions, including not only the Conservator’s decision about what advice to give ACTPLA but even the Conservator’s decisions about the processes to go through in deciding on the content of that advice, it is in my view reasonable to treat Mr Glass’s application as involving an aim of overturning one or more discretionary decisions.
In those circumstances, and even accepting that the full import of s 121(2) is a question that may usefully be resolved in another case (or by legislative clarification), I was satisfied that this was not an appropriate case in which to grant the applicant leave to appeal to the Supreme Court.
Given the time and other resources absorbed by Mr Glass’s application, and especially Mr Glass’s failure to confine his arguments to the facts and law genuinely relevant to his complaint, I could see no reason why Mr Glass should not be required to pay the respondents’ costs of the application.
| I certify that the preceding one hundred and thirty four [134] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 2 August 2019 |
[1] The amended draft notice of appeal referred throughout to s 162(5)(b) of the Planning Act, but Mr Glass agreed in the hearing that these references should have been to s 162(6)(b) of that Act.
2