High v ACT Planning and Land Authority

[2019] ACAT 40

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HIGH v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2019] ACAT 40

AT 10/2019

Catchwords:                ADMINISTRATIVE REVIEW – standing – right to review – eligible entity under the Planning and Development Act 2007 – amended development application – public notification waived

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 67A

Court Procedures Act 2004 s 15
Legislation Act 2001 ss 127, 132, 141, 142
Planning and Development Act 2007 ss 153, 155, 162, 197, 198, 198B, 408, 408A, Sch 1

Subordinate
Legislation cited:        Planning and Development Regulation 2008, r 27

Tribunal:Presidential Member MT Daniel

Date of Orders:  22 March 2019

Date of Reasons for Decision:     11 April 2019

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AT 10/2019

BETWEEN:       

VICTORIA HIGH

Applicant

AND:

ACT PLANNING AND LAND AUTHORITY

Respondent

TRIBUNAL:Presidential Member MT Daniel

DATE:22 March 2019

ORDER

The Tribunal orders that:

1.The application for review is dismissed.

…………………………..

Presidential Member MT Daniel

REASONS FOR DECISION

1.On 22 March 2019 the Tribunal[1] made orders dismissing the applicant’s application, on the basis that she was not entitled to bring the application. At the time I gave short oral reasons and indicated I would publish those reasons in fuller form, so as to provide some clarity about the rights of review in similar matters. These are those reasons.

Background

[1] A reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the member who heard the application

2.On 23 November 2016, the respondent (ACTPLA) received a development application (DA) under the Planning and Development Act 2007 (PD Act) for a knock down and rebuild in respect of a residential block in Campbell (subject property).

3.The applicant is the owner of an adjoining property.

4.On 9 January 2017, in accordance with section 153 of the PD Act, the DA was notified to neighbours of the subject property, inviting representations. The applicant did not make a written representation.

5.On 22 February 2017, a delegate of the respondent approved the DA, subject to certain conditions.

6.On or after 28 June 2017, the development proponent lodged an application under section 197 of the PD Act to amend the development approval (amendment application). These amendments were predominantly internal: however they included the proposed construction of a BBQ area with a high wall on the boundary line some 2-3m away from the applicants’ house — a class 10 structure.

7.On 2 August 2017, a delegate of the respondent made decisions to:

a)waive the requirement to publicly notify the amendment of the development approval;[2] and

b)approve amendment of the development approval.

[2] PD Act section 198B

8.On 5 February 2019, the applicant lodged an Application for Review of a Decision with the tribunal in relation to the decisions of 2 August 2017 (amendment decisions). The applicant explained her delay in lodging an application was due to her not being formally notified by ACTPLA of the amendment application or the amendment decisions. She became aware only informally some months after the amendment decisions, in conversation with her neighbours. After making contact with ACTPLA, she was provided a reviewable decision notice[3] on 19 November 2018 which advised her she had a right to apply for review of the amendment decisions.

[3] ACAT Act, section 67A and PD Act, section 408 impose the requirement to give a reviewable decision notice

9.The applicant claimed that the development of a class 10 structure on the boundary would directly and adversely impact her and her property.[4] Additionally, the applicant took issue with the decision to waive the requirement for notification.

[4] Attachment to Application for Review of a Decision dated 5 February 2019

10.The question of the applicant’s entitlement to seek review was raised immediately. The matter was set down for a hearing on 15 March 2019 to determine whether the applicant was entitled to apply for review of the amendment decisions. After the hearing I reserved my decision, and made directions for the filing of further written submissions. Further submissions were received from both parties, and were of great use to the Tribunal in reaching its conclusion.

Relevant law

11.In this matter the DA was approved under section 162 of the PD Act, which commences by stating:

162   Deciding development applications

(1)     The planning and land authority or, for a development application that the Minister decides to consider under division 7.3.5 (Ministerial call-in power for development applications), the Minister, must—

(a)   approve a development application; or

(b)   approve a development application subject to a condition; or
(c)    refuse a development application.

12.The remainder of section 162 sets out some procedural requirements for the decision, and mandates refusal of a development application in certain circumstances.[5]

[5] Depending upon the track, there are many other provisions of the PD Act which also affect how a decision is to be made

13.The amendment application was filed under section 197 of the PD Act, and then dealt with under section 198 which relevantly for this matter states:

198   Deciding applications to amend development approvals

(1)     In deciding whether to amend a development approval in accordance with an application under section 197, the decision‑maker must consider the application, and take action in relation to the application, as if—

(a)the development originally approved had been completed; and

(b)the application for amendment were an application for approval of a development proposal (the proposed development) to change the completed development to give effect to the amendment.

Example

Philip has development approval (the original approval) to build a house. Philip starts to build the house, but discovers that he needs an extra room in the house. He applies to amend the original approval.

In considering whether to amend the original approval, the planning and land authority must treat the application to amend as if the house has been built in accordance with the original approval, and the application is for approval to add an extra room. This means the authority must assess the application in the assessment track that would apply to an application to add an extra room, and any requirement to notify agencies or publish the application would have to be followed.

Note 1A decision of the planning and land authority to amend a development approval subject to a condition, or refuse to amend a development approval, may be reconsidered under pt 7.3.10 (see s 191 (1) (a)). The approval holder may apply for review of a decision under s 193 (1) (b) (ii) to confirm the original decision (see sch 1, item 13).

Note 2The decision-maker must decide whether to amend the development approval as soon as possible (see Legislation Act, s 151B).

Note 3The Minister may delegate the decision to the planning and land authority (see Legislation Act, s 254A).

Note 4An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2)     However, section 162 (4) (Deciding development applications) does not apply to the application.

…

(5)     The decision-maker must refuse to amend the development approval if satisfied that—

(a)…

(b)if the original proposal was in the merit track—the changed development proposal would be in the impact track…

(6)    Also, the decision-maker must refuse to amend a development approval unless satisfied that, after the amendment, the development approved will be substantially the same as the development for which approval was originally given.

(7)     To remove any doubt, only the application for the amendment need be publicly notified if—

(a)public notification of the proposed development is required under the assessment track that applies to the proposed development; and

(b)the requirement to publicly notify the application is not waived under section 198B.

14.Section 198B was relied upon by the respondent to waive any applicable notification requirements for the amendment application:

198B Waiver of notification requirement under s 198 (1) (b)

Despite section 198 (1) (b), the decision-maker may waive the requirement to publicly notify an application for amendment of a development approval if satisfied that—

(a)no-one other than the applicant will be adversely affected by the amendment; and

(b)the environmental impact caused by the amendment will do no more than minimally increase the environmental impact of the development.

Note        For the notification requirement, see s 146.

15.The tribunal has jurisdiction to review a decision only where this is provided by an authorising law. In addition, an application for review can only be brought by a person given that right by the authorising law, typically referred to as an ‘eligible entity’.

16.For decisions made under the PD Act, section 408A provides that the decisions listed in Schedule 1 are reviewable decisions, and applications for review may be brought for each such decision by the person named as an ‘eligible entity’ for that decision.

17.For this matter, the relevant extracts of Schedule 1 (titled ‘Reviewable decisions, eligible entities and interested entities’) appear to be:

column 1 item	column 2 reviewable decision	column 3 eligible entities	column 4 interested entities
…	…	…	…
3	decision under s 162 to approve a development application in the merit track subject to a condition or to refuse to approve the application, to the extent that the development proposal— (a)  is subject to a rule and does not comply with the rule; or (b)  is not subject to a rule	applicant for development approval	entity that made representation under s 156 in relation to the application
4	decision under s 162 to approve a development application in the merit track, whether subject to a condition or otherwise, if— (a) the application was required to be notified under s 153 and s 155, whether or not it was also required to be notified under s 154; and (b)  the application is not exempted by regulation. Note  A decision under s 162 is reviewable only to the extent that the development proposal— (a)  is subject to a rule and does not comply with the rule; or (b) is not subject to a rule. (see s 121 (2)).	an entity if— (a)  the entity made a representation under s 156 about the development proposal or had a reasonable excuse for not making a representation; and (b)  the approval of the development application may cause the entity to suffer material detriment	the approval-holder
…	…	…	…
14	decision under s 198 to refuse to amend development approval	approval-holder	entity that made representation under s 156 in relation to the application for development approval
…	…	…	…

Consideration

18.It is immediately clear from Schedule 1 of the PD Act that the decision under section 198B to waive any applicable public notification requirements is not reviewable. The hearing and submissions thus focussed on whether the decision to amend the development approval was reviewable and, if so, whether the applicant was eligible to bring the application for review.

19.At first glance, the decision to approve or refuse an amendment application seems to be made under section 198 of the PD Act. This is consistent with the approach taken in Schedule 1, which by item 14 provides a right to seek review of a refusal of an amendment application. However, both parties submitted that the correct interpretation was that the decision to approve the development application was made as required by section 198, but ‘under’ section 162 of the PD Act. This would bring such a decision, potentially, within items 3 and 4 of Schedule 1.

20.Section 198(1) of the PD Act requires the amendment application to be actioned and considered ‘as if’ it were an application for approval of a development proposal to change the completed development to give effect to the amendment. This could be interpreted as a requirement to make the decision under section 198, but having imposed the same procedural and substantive framework as is applied to a DA; or it could be interpreted as a requirement to make the decision ‘under’ section 162, which brings with it the relevant procedural and substantive framework.

21.There is an example provided to section 198 which, while of practical assistance, does not help in resolving this legal conundrum.[6]

[6] An example is considered to be a part of the Act it is contained in and thus can be referred to in trying to work out the meaning of an Act — Legislation Act 2001, section 132

22.The explanatory statements to these parts of the PD Act provide no assistance. However, Note 1 to section 198A states “[u]nder s 198(1)(b) an application for amendment is deemed to be an application for development approval…”. Although notes to an Act do not form part of the Act,[7] they may be referred to in working out the meaning of the Act.[8] By reference to all of this material, I am therefore satisfied that a decision to approve an amendment application is made ‘under’ section 162 of the PD Act.

[7] Legislation Act 2001, section 127

[8] Section 141 of the Legislation Act 2001 provides that material not forming part of the Act may be considered in working out the meaning of the Act. Section 142 sets out what materials may be considered, with column 2, item 1 of Table 132 referring to “material not forming part of the Act contained in an authorised version of the Act”. This would include a note

23.In reaching this conclusion, I considered whether this interpretation should not be preferred because it would make item 14 of Schedule 1 superfluous. I am satisfied it does not. Although some applications for review brought under item 14 might fall within item 3, item 14 also apparently provides a right of review to unsuccessful amendment applicants in the code track, and a broader right of review for unsuccessful merit track amendment applicants than is provided by item 3. On another approach, as submitted by the respondent, item 14 provides a right of review where the amendment application is unsuccessful because it is required to be refused pursuant to section 198. It is not necessary for the Tribunal to determine which of those approaches to the scope of item 14 is correct. For either reason, item 14 will not be rendered otiose by the interpretation of section 198(1)(b) that I have adopted.

24.On balance then, I am satisfied that the decision to approve the amendment application was required by section 198(1)(b) to be made under section 162. Because this amendment application involved a class 10 structure, it is a merit track application, as was the original DA. The amendment application decision will be a reviewable decision if it falls within items 3 or 4 of Schedule 1.

25.Item 3 of Schedule 1 is not relevant for the applicant’s purposes, as it provides a right to apply for review only to the applicant for the amendment application. I turn then to consider item 4.

26.Item 4 makes a section 162 decision to approve a development application in the merit track reviewable if the application was required to be notified under both section 153 and section 155 of the PD Act. Section 153 of the PD Act covers notice to adjoining premises, while section 155 of the PD Act, which is titled ‘Major public notification’, requires signage and public advertisement. In this case, under regulation 27 of the Planning and Development Regulation 2008, the amendment application required notification under section 153, but not under section 155.[9] It follows that the decision to approve the amendment application does not satisfy the requirements of item 4, and is not a reviewable decision.[10]  For this reason, the application for review must be dismissed.

[9] The original DA also was required to be notified only under section 153

[10] There may also be a question as to whether, by waiving a requirement for notification, an amendment application decision which would otherwise have been within item 4 and reviewable becomes not reviewable. It is not necessary to resolve that question in this case

27.For completeness, I note the respondent’s submission that the applicant did not make a representation in relation to the amendment application, and as such would not have been an eligible entity, notwithstanding that the applicant may suffer a detriment as a result of the development. While it is not necessary to decide the point in this matter, I indicated to the respondent that I considered the lack of knowledge of the amendment application being made, due to waiver of notification requirements, might be considered a reasonable excuse for not making a representation about the amendment application.

Other matters

28.The Tribunal was concerned that, after she made contact with ACTPLA, the applicant was given what may have been a pro forma reviewable decision notice that incorrectly told her that she had a right of review. In reliance on this notice, the applicant began proceedings in the tribunal and paid the required filing fee. Both the applicant and respondent have then attended the tribunal on two occasions, once for a hearing and once to receive the decision. They gave up valuable time to prepare comprehensive written submissions. Any efficiency obtained by the use of a pro forma reviewable decision notice has been well and truly outweighed by subsequent events.

29.Of course, review rights under the PD Act are complicated, and it is difficult to draft a notice which meets every circumstance or recipient. I note too that the prescribed content of a reviewable decision notice, which does not easily accommodate the range of persons to whom it may sent, may have contributed to the problem.

30.Unfortunately, this is not the first matter in which an applicant has been advised of a right of review which was non-existent. It may be that both legislative and practical changes need to be made to ensure reviewable decision notices in the future provide more accurate information to the recipient.

……………………………….

Presidential Member MT Daniel

HEARING DETAILS

FILE NUMBER:	AT 10/2019
PARTIES, APPLICANT:	Vicki High
PARTIES, RESPONDENT:	ACT Planning and Land Authority
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member MT Daniel
DATES OF HEARING:	15 and 22 March 2019