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Hamilton v ACT Planning and Land Authority

Hamilton v ACT Planning and Land Authority

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HAMILTON v ACT PLANNING AND LAND AUTHORITY & ORS (Administrative Review) [2018] ACAT 121

AT 23/2018
Catchwords: ADMINISTRATIVE REVIEW – code compliance of development – Tribunal’s ability to review decisions under section 121 of the Planning and Development Act 2007 – section 120 of the Planning and Development Act 2007

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7
Planning and Development Act 2007 ss 48, 51, 53, 55, 93, 112, 116, 117, 118, 119, 120, 121

Subordinate
Legislation cited: Community and Recreation Facilities Location Guidelines General Code
Community Facilities Zone Development Code
Crime Prevention through Environmental Design General Code
Multi Unit Housing Development Code
Territory Plan 2008
WaterWays: Water Sensitive Urban Design General Code

Cases cited:Baptist Community Services v ACT Planning and Land Authority and Ors [2015] ACTCA 3
Baptist Community Services Pty Ltd – NSW & ACT v ACT Planning and Land Authority & Ors [2016] ACAT 150
Bell & De Castella and Rob De Castella’s Smartstart for Kids Limited [2013] ACAT 27
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Deakin Residents Association Inc v ACT Planning and Land Authority & Anor [2015] ACAT 37
Gingell & Anor v ACT Planning and Land Authority [2018] ACAT 62
Glass v ACT Planning and Land Authority and Anor [2016] ACAT 96
Glass v ACT Planning and Land Authority & Anor [2016] ACAT 147
Javelin Projects Pty Ltd v ACT Planning and Land Authority & Anor [2017] ACAT 87
Johnson and Xu v ACT Planning and Land Authority& Ors [2012] ACAT 53
Mason and ACT Planning & Land Authority and Ors [2009] ACAT 7
Maurer & Ellis v ACT Planning and Land Authority & Ors [2016] ACAT 83
McGrath and Anor v ACT Planning and Land Authority & Anor [2018] ACAT 100
Medical Board of Australia v Hocking [2015] ACAT 22
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Anor [2017] ACAT 44
Noah’s Ark Resource Centre Incorporated v ACT Planning and Land Authority & Ors [2018] ACAT 95
Old Narrabundah Community Council Inc v ACT Planning and Land Authority & Ors [2016] ACAT 32
Sladic & Anor v ACT Planning and Land Authority; Charter Hall Retail REIT & Ors v ACT Planning and Land Authority [2018] ACAT 38
Sullivan v Civil Aviation Safety Authority (2014) 64 AAR 120
Wildcare Queanbeyan NSW Inc & Conservator of Flora and Fauna [2011] ACAT 68

Tribunal:Senior Member H Robinson
Senior Member G Trickett

Date of Orders:  4 December 2018
Date of Reasons for Decision:         4 December 2018
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 23/2018
BETWEEN:
ANDREW HAMILTON
Applicant

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent

AND:
JOHN FORSEY
First Party Joined
JOHN MCGOVERNE
Second Party Joined
THE TERRITORY AS REPRESENTED BY
THE PUBLIC HOUSING RENEWAL TASKFORCE
Third Party Joined

TRIBUNAL:Senior Member H Robinson
Senior Member G Trickett

DATE:4 December 2018

ORDER

The Tribunal orders that:
1.The development approval is varied to…

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: [2018] ACAT 121
Decision Date: 4 December 2018

CaseChat Overview and Summary

The case of Hamilton v ACT Planning and Land Authority involved the applicant, Mr. Hamilton, challenging a development approval granted to the respondent, the ACT Planning and Land Authority. The dispute centred around the conditions and the scope of the approved development, particularly in relation to alterations and additional structures. The matter was heard by the Planning and Environment Court of the Australian Capital Territory.

The primary legal issues before the court were whether the approved development had deviated from the original plans and conditions, and if so, whether these deviations were significant enough to warrant a variation of the development approval. The court had to determine whether the changes proposed by the respondent were consistent with the original approval and whether they complied with the relevant planning laws and regulations.

The court considered the evidence and submissions from both parties, focusing on the changes proposed by the respondent and their implications. It examined whether the modifications, such as the addition of car parks and the planting screen, were within the scope of the original approval or if they constituted significant departures that required a variation of the approval conditions. Ultimately, the court found that the proposed changes were within the bounds of the original approval and did not necessitate a complete re-assessment of the development. The court ordered specific conditions to be added to the approval to ensure compliance with the original plans and to address the concerns raised by Mr. Hamilton.

Orders

Orders of the court

The Tribunal orders that:

1. The development approval is varied to include the conditions that:

(a) The crown lease be amended in accordance with Exhibit R3;

(b) The development be in accordance with the revised plans at drawing 19 attached to Exhibit TR7, being the revised plan with 12 additional carparks;

(d) The western side boundary to unit 12’s private open space be shielded either by a 1.8m fence, or by an advanced planting screen.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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