Hobbs v ACT Planning and Land Authority & Anor (Administrative Review) - [2022] ACAT 76

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HOBBS v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review) [2022] ACAT 76

AT 93/2019

Catchwords: ADMINISTRATIVE REVIEW – application to set aside Tribunal’s decision as a nullity for failure to provide procedural fairness – does Bhardwaj apply to planning decisions – content of Tribunal’s duty to self-represented litigants – party was accorded procedural fairness – application dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 56
Planning and Development Act 2007

Subordinate

Legislation cited: Multi Unit Housing Development Code 2020

Cases cited:Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074
Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58
Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112
Glass v ACT Planning and Land Authority and Anor [2016] ACAT 147
Hobbs v ACT Planning and Land Authority & Anor [2020] ACAT 58
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Roberts v Harkness [2018] VSCA 215
The Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35

Tribunal:Presidential Member M-T Daniel

Date of Orders:  18 November 2021
Date of Reasons for Decision:      15 September 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 93/2019

BETWEEN:

PETER HOBBS
Applicant

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

AND:

ANTHONY VARTULI
Party Joined

TRIBUNAL:Presidential Member M-T Daniel

DATE:18 November 2021

ORDER

The Tribunal orders that:

The application to re-open proceedings filed on 25 May 2021 is dismissed.

………………….……………..
Presidential Member M-T Daniel

REASONS FOR DECISION

In this proceeding the Tribunal[1] on the application of Mr Hobbs (the applicant) had reviewed a decision by the ACT Planning and Land Authority (ACTPLA) to allow, subject to conditions, a development application. On 6 August 2020 the Tribunal set aside the original decision and substituted it with a decision to refuse the development application. The Tribunal did this because it was satisfied the development application did not meet rules/criteria 29[2] and 70[3] of the Multi Unit Housing Development Code (MUHDC). The Tribunal also stated that it did not see a way in which the development application could be made compliant, or at least not without having a major impact on the design, such that approval on condition that the development be made so compliant was not an appropriate option.[4]
[1] A differently constituted Tribunal to the current Tribunal, and referred to in these reasons as ‘the Tribunal’.
[2] In relation to boundary setbacks
[3] In relation to streetscape including driveways and street layout
[4] Hobbs v ACT Planning and Land Authority & Anor [2020] ACAT 58 at [6]-[10]
The party joined, who was for practical purposes the development proponent (proponent), was unhappy with the Tribunal’s decision. The proponent did not file an appeal from the decision within the 28-day time limit, nor did he seek an extension of time in which to appeal. He did not apply to the tribunal for orders under section 56 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) that the 6 August 2020 orders be set aside on any of the bases set out in that section.
Instead, on 25 May 2021, some nine months after the Tribunal’s decision, the proponent applied for the proceeding to be reopened on the basis that the decision of 6 August 2020 was a nullity, due to a failure by the Tribunal to afford him procedural fairness (the Bhardwaj[5] application).
[5] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (Bhardwaj)
On 18 November 2021 I made orders dismissing the Bhardwaj application and undertook to publish my reasons, which follow.

What was the basis of the Bhardwaj application?

The proponent said in his application that the Tribunal did not accord him procedural fairness in reaching its decision because:
(a)he was not afforded the opportunity to provide evidence relevant to rule 70;
(b)the question of whether or not a condition to address non-compliance with rules/criteria 29 and 70 could be imposed on an approval was not ‘put to the parties’ by the Tribunal; and
(c)the parties had no opportunity to address the Tribunal in relation to the granting of conditional approval.
The proponent asserted that the Tribunal’s failure to accord him procedural fairness amounted to jurisdictional error, and this meant that the Tribunal’s decision of 6 August 2020 was not a decision at all and the review proceedings were still on foot.[6] He sought leave to tender further evidence about rules/criteria 29 and 70, and to make further submissions about the questions of compliance and whether the development application could be approved on condition that it be made so compliant.

The hearing of the Bhardwaj application

[6] That is, the Tribunal was not functus officio

The Bhardwaj application came before me for hearing on 13 October 2021. As is outlined below, I adjourned the hearing of that application to 5 November 2021 to allow ACTPLA to provide more definitive submissions, and to allow the proponent to provide a more comprehensive witness statement. The hearing on 5 November 2021 was not able to proceed due to technological difficulties. A resumed in-person hearing was scheduled and held on 17 November 2021.
The proponent’s Bhardwaj application was opposed by the applicant, who remained self-represented. He said he had been self-represented throughout the hearing and felt that he and all the parties had been accorded procedural fairness.
The applicant had initially filed submissions dated 23 July 2021 and an interim or other orders application dated 16 July 2021 seeking that the Tribunal not consider the Bhardwaj application, which the applicant had understood to be an appeal lodged out of time. I heard and dismissed that application on 13 October 2021.
The applicant ultimately relied upon:
(a)his witness statement dated 28 October 2021; and
(b)written submissions dated 28 October 2021.
The applicant was not required for cross-examination.
Initially, ACTPLA neither opposed nor consented to the Bhardwaj application.
ACTPLA had filed comprehensive submissions on 23 July 2021 setting out the history of the matter and the relevant law but did not commit to a position on the Bhardwaj application, nor on whether the hearing had been conducted fairly. I indicated on 13 October 2021 that I found that stance to be unhelpful, especially in so far as ACTPLA declined to express a position on whether the hearing had in its view been procedurally fair.
I directed ACTPLA to file a further submission indicating whether it considered that the Tribunal’s process had met the requirements of procedural fairness. That further submission was lodged on 27 October 2021 and in it ACTPLA submitted that the hearing had in its view been conducted fairly.
ACTPLA thus relied upon:
(a)submissions dated 23 July 2021; and
(b)further submissions dated 27 October 2021.
The proponent, now represented by counsel, initially relied upon:
(a)interim and other orders application lodged 25 May 2021;
(b)a witness statement by the proponent dated 25 May 2021, attaching some revised plans dated March 2021 which he said complied with the requirements under rules/criteria 29 and 70; and a visual tree assessment report also dated March 2021;
(c)a witness statement by a Senior Town Planner dated 24 May 2021, who asserted that the March 2021 revised plans met the relevant rules and could be approved;
(d)submissions lodged 9 July 2021; and
(e)submissions in reply lodged 3 August 2021.
At the hearing on 13 October 2021 I expressed to the proponents counsel my concern that the submissions asserted that the proponent did not know he could seek approval “on condition” that compliant plans be prepared and followed, but this assertion was not included in the proponent’s witness statement. There was also no reference in the proponent’s witness statement to factors which were known to the Tribunal and parties during the conduct of the matter, such as:
(a)the existence of and level of assistance provided to the proponent during the hearing process by his designer Mr Maddafiri;
(b)the existence of legal assistance available to the proponent during the hearing process, whether he had sought that legal assistance or not, and the extent of any legal assistance provided.
I directed the proponent to lodge a further witness statement which addressed these outstanding factual matters. This was done, and the proponent additionally relied upon:
(a)further written submissions in reply lodged 9 November 2021; and
(b)a further witness statement by the proponent dated 19 October 2021.
The proponent was cross-examined in relation to his witness statements. He impressed as an honest and straightforward witness. He did his best to recall his state of knowledge and understanding from 12 months earlier, not an easy task given that the hearing was conducted over the early months of the COVID-19 pandemic.
From the material lodged and submissions of the parties the issues to consider at the hearing of the Bhardwaj application were:
(a)Is the Tribunal bound to provide procedural fairness?
(b)Does Bhardwaj apply to decisions of the Tribunal, and this decision in particular?
(c)What is procedural fairness?
(d)In this proceeding had there been a failure to provide procedural fairness, which was material to the decision?

The Tribunal’s duty to use a fair process

The duty of the Tribunal to hear and determine applications in a way that is procedurally fair is set out in section 7 of the ACAT Act. The parties agreed that procedural fairness is fundamental to the tribunal’s exercise of its jurisdiction.
The Tribunal is also required by section 7 of the ACAT Act to ensure that the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice. The tribunal’s procedures must also be implemented in a way that “facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding.”[7]
[7] ACAT Act section 7(a)(ii)
It is perhaps obvious to note that in dealing with an application there may arise tensions between these multiple imperatives. That tension is often resolved more easily than one might anticipate because, as discussed below, the content of the natural justice and procedural fairness obligation is dictated by the nature of the proceeding.

Does the Bhardwaj argument apply to the Tribunal’s decision?

In Bhardwaj the High Court held that a decision of the Immigration Review Tribunal was not a ‘decision’ for the purposes of the Migration Act because Mr Bhardwaj had not been given a reasonable opportunity to present evidence and argument. The High Court found the Immigration Review Tribunal, in failing to provide procedural fairness, had failed to perform its statutory function and the earlier decision was no decision at all. Importantly, the Immigration Review Tribunal had a duty to perform its statutory function and so it was obliged to treat the earlier decision as non-existent and continue to hear and decide the matter fairly.
Subsequent cases have clarified that not all failures to provide natural justice amount to such a jurisdictional error. Only a breach of natural justice that is “material” to the decision results in a nullity. A breach is “material to a decision only if compliance could realistically have resulted in a different decision.”[8]
[8] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [35]
The application of Bhardwaj to decisions of the tribunal was not contested before me.
Both ACTPLA’s solicitor and counsel for the proponent drew my attention to the Court of Appeal decision in The Legal Practitioner v Council of the Law Society of the ACT[9] (the Legal Practitioner case) which applied the reasoning in Bhardwaj to a tribunal proceeding in which there had been an egregious failure to provide procedural fairness. It was also noted that a Bhardwaj argument had been utilised in a previous planning matter which was apparently finalised, with that tribunal considering its earlier decision a nullity and proceeding to hear further from the parties and make a different decision.[10]
[9] The Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35
[10] Glass v ACT Planning and Land Authority and Anor [2016] ACAT 147
While the Tribunal is bound to follow the Legal Practitioner Case, that applies only to cases which engage the same law and essential facts.
It seems to me that a general application of Bhardwaj to tribunal decisions cannot be adopted, because the legal framework within which the tribunal operates is highly variable.
The ACAT Act provides a central legal framework establishing the tribunal and its default mode of operation. Integral to the statutory design is the existence of ‘authorising laws’ which work in conjunction with the ACAT Act. The procedures set out in the ACAT Act give way to specific procedures contained in the authorising law.[11] It is the two pieces of legislation, taken together, which provide the legal basis and consequences for a particular proceeding. This is important because the application of Bhardwaj to a particular decision depends upon an assessment of the legislative framework within which the decision is made.
[11] Section 27, ACAT Act
Some authorising laws contain no additional detail about how the tribunal is to perform its functions, and give no indication as to how decisions take effect or whether a failure to provide procedural fairness will render a decision, legally, no decision at all. Other authorising laws may be more comprehensive or prescriptive.
The Planning and Development Act 2007 is one authorising law which provides a detailed scheme for the time at which decisions take effect – at least insofar as the decision results in the approval of a development application. ACTPLA submitted, without developing the argument, that the principle of finality has particular resonance in the planning context. For the reasons set out so clearly by McWilliam AsJ in Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT[12] it might be concluded that Bhardwaj does not apply in relation to some decisions under that legislation.
[12] Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58 at [22], [58]
I did not call the parties back for further submissions on this point or reach a final conclusion on it. It was unnecessary to do so given my conclusion below that the proponent was not denied procedural fairness.

What is procedural fairness?

Procedural fairness is usually summarised as having two requirements: “a person who may be affected by a decision [must] be informed of the case against him or her and … be given an opportunity to answer it.”[13]
[13] Bhardwaj at [40]
Counsel submitted that what a decisionmaker is required to do to meet this obligation – the content of the obligation – varies depending upon the circumstances of the case. ACTPLA’s solicitor referred to Roberts v Harkness:
The existence of the fair hearing right being uncontroversial, the critical question is: ‘What does the duty to act fairly require in the circumstances of the particular case?’ Natural justice is ‘fair play in action’. As Gleeson CJ said in Lam:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
It is an essential requirement of a fair hearing that each party be given a ‘reasonable opportunity’ of presenting its case, whether in writing, or orally, or both. This will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond.
Axiomatically, what is ‘reasonable’ for this purpose will depend on the circumstances of the case. Matters to be taken into account in determining the practical content of fairness in the particular case will include
·        the nature of the decision to be made;
·        the nature and complexity of the issues in dispute;
·        the nature and complexity of the submissions which the party wishes to advance;
·        the significance to that party of an adverse decision (‘what is at stake’); and
·        the competing demands on the time and resources of the court or tribunal.
One of the key considerations in determining the content of fairness in a particular case is the statutory framework governing the decision-making process. This is most obviously the case with administrative decision-makers whose powers are conferred by statute, but it is also true of courts.[14] [citations omitted]
[14] Roberts v Harkness [2018] VSCA 215 at [47]-[49]
Procedural fairness does not require a decision-maker to disclose his or her thinking processes[15] and in this respect ACTPLA’s solicitor quoted Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd:
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.[16]
[15] NBMT v Minister for Immigration and Citizenship [2012] FCA 508
[16] Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 at [30]
Counsel for the proponent referred to Chetcuti v Minister for Immigration and Border Protection (Chetcuti) as support for the submission that in the context of a self-represented litigant the tribunal is obliged to inform the party of the fundamental issues which are relevant to its determination and the need to adduce evidence and make submissions about those issues[17]. ACTPLA’s solicitor drew my attention to the limits on the obligation also contained in that judgment:
These cases demonstrate that a judge’s obligation to ensure that a trial is fair requires the judge to give a self-represented litigant a reasonable opportunity to present evidence and make submissions in support of his or her case. That obligation may require that a self-represented litigant be informed of fundamental procedures and processes of the Court (at least to the extent that the litigant has not already received that information from some other source). In some cases, the obligation may extend to informing a self-represented litigant, at least in broad terms, of what must be proven. However, a judge is not required to give legal or tactical advice to a self-represented litigant that would compromise the judge’s impartiality and be unfair to the opposing party. The obligation of the judge is not to place a self-represented litigant in the same position as if he or she were legally represented, but to provide sufficient information, so far as is reasonably practicable, in order to allow a trial to be conducted fairly and in accordance with the law. The nature and content of the judge’s obligation is informed by the particular circumstances of the case and the necessity to provide a fair hearing for each party while maintaining a position of neutrality.
The assessment of an allegation that a trial judge failed to provide adequate information to a self-represented litigant will depend heavily upon the legal and factual context in which it is asserted that the information should have been provided. A party alleging jurisdictional error has the onus of adducing sufficient evidence to prove that allegation: see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24].[18]
[17] Chetcuti at [103] – [106]
[18] Chetcuti at [106]

With these principles in mind, I considered what procedural fairness required of the Tribunal in the proceeding before it, and whether the proponent had been denied procedural fairness.

Did the Tribunal in a material way fail to provide procedural fairness in this proceeding?

Where a Bhardwaj argument is available, the onus is on the party raising the argument to demonstrate that there was a breach of the requirements of procedural fairness, and that the breach had materiality – that is, there is a realistic possibility that the decision could have been different had the breach not occurred.[19]
[19] MZAPC at [1]-[3]
Although the applicant disagreed, it was certainly arguable in this case that if the Tribunal had failed to provide procedural fairness to the proponent in the aspects asserted, there was a realistic possibility that the decision could have been different. It was not necessary for me reach a conclusion on the issue of ‘materiality’ as I was ultimately satisfied that the proponent had been afforded procedural fairness.
Argument before me centred on whether there was any breach of the requirements of procedural fairness at all.
Counsel for the proponent submitted that:
(a)the proponent didn’t know he could seek approval conditional on the plans being redesigned to comply with rules/criteria 29 and 70; and
(b)the content of the directions made by the Tribunal about rules/criteria 29 and 70 was insufficient to properly apprise him of the case he had to meet, or to provide him with adequate opportunity to meet that case.
The applicant submitted that like the proponent he had been self-represented throughout the hearing and he felt that he and all the parties had been accorded procedural fairness. He said that he and the proponent were both accorded opportunity to consider engaging legal counsel, and both declined.[20] The applicant also attested that in his view there were “a plethora” of opportunities afforded all parties to comment in oral or written form on any issue or condition related to the contentious rules or criteria.
[20] Witness statement Peter Hobbs dated 27 October 2021 at [9]
ACTPLA’s solicitor submitted that the Tribunal adequately met its obligation to provide the proponent with natural justice, that he was given a reasonable opportunity to present his case and the Tribunal was not under an obligation to ensure that the proponent took the best advantage of the opportunity which he was afforded.
The submissions of the applicant and ACTPLA also referred to many interactions prior to, in the course of, and after the hearing as evidence that the parties were put on notice that the failure to comply with a rule or criterion could be addressed by a condition on approval to comply with that rule or criterion in a certain way, and that the proponent must have held such an understanding.
To properly consider these submissions it is necessary to set out in some detail the process the Tribunal followed. As was stated in Chetcuti:
The assessment of an allegation that a trial judge failed to provide adequate information to a self-represented litigant will depend heavily upon the legal and factual context in which it is asserted that the information should have been provided.[21]
[21] Chetcuti at [107]
The Tribunal’s preparation of the application for hearing, and conduct of the hearing, were in most respects conventional. However, the hearing occurred during the early months of the COVID-19 pandemic, leading to a greater reliance on written documentation than might otherwise have been adopted. Additionally, the proponent chose to take an unusually passive approach to his role in the proceedings. He sought to be, and was, joined as a party, which enabled him to have a seat at the table and be part of the negotiations for the mediation, and to take part in any subsequent hearing. He was not directed to file any documents prior to the hearing, this approach apparently being taken because he was content that ACTPLA was defending its decision, which he saw as being in his favour. In the end, however, the proponent chose to lodge some documents for the hearing and provided written submissions afterwards.
It is helpful to set out the chronology of the proceedings in some detail:
(a)24 September 2019 ACTPLA grants conditional approval to the development application made on behalf of the proponent. The first condition requires provision of amended plans to ensure compliance with specified areas of non-compliance.
(b)14 October 2019 the applicant applies for tribunal review of that decision.
(c)18 November 2019 first directions hearing. Proponent joined as a party. Matter referred to mediation. Directions made for applicant and ACTPLA to file documents leading to a hearing in late February 2020.
(d)20 December 2020 mediation conducted, matter does not settle.
(e)17 February 2020 – directions hearing. Upcoming hearing vacated due to non-compliance with timetable for filing. Further timetable set. No direction requiring the proponent to file documents.
(f)3 February 2020 ACTPLA lodges a witness statement from Ms Lana and submissions both of which expressly raise R29/C29. ACTPLA’s submissions include:
Even if the DA is considered not to be compliant, it is still possible that the decision to approve the DA may be confirmed subject to any additional conditions that would have the effect of making it compliant.[22]
[22] ACTPLA written submissions lodged 3 February 2020 at [18]
Ms Lana’s statement notes that a condition of approval had been imposed by ACTPLA to ensure compliance with C29, and at three further points makes reference to conditions of approval being imposed to deal with various issues.[23]
[23] Witness statement Sheikh Lana lodged 3 February 2020 at [27] [48] [49] and [52]
(g)10 March 2020 the applicant lodges submissions replying to ACTPLA’s submissions, ventilating his concerns about setbacks and supporting the Tribunal adding proposed conditions about solar access.
(h)16 March 2020 a final directions hearing and compliance check is held. The proponent hands up shadow diagrams to be relied upon at the hearing.
(i)20 March 2020 the hearing is conducted. The proponent attends together with his designer (the development applicant) Mr Madaffari who gives evidence. It can be noted from the transcript:
(i)      page 46, lines 39-41 discussion of conditions placed on the approval.
(ii)     page 48, lines 26-28 Tribunal question to Ms Lana about the Tribunal adding a condition to the approval about a tree.
(iii)   page 49, line 41 Ms Lana suggests adding a condition of approval about a door.
(iv)   page 53, line 36 the proponent agrees with Ms Lana that the there can be a design change to improve solar access.
(v)     page 64, line 1 the applicant questions Ms Lana about an existing condition of approval.
(vi)   page 68, line 1 the Tribunal invites the proponent to provide evidence.
(vii)     page 69, line 40 the proponent calls Mr Maddafari to give evidence.
(viii)   pages 71-73 Mr Maddafiri indicates the shadow diagrams rely on additional windows not contained in the approved plans, and approval of the amended plans will be requested.
(ix)   page 75, line 38 the proponent confirms he does not wish to call further evidence.
Hearing is not completed but adjourned for oral submissions on a later date in April.
(j)9 April 2020 – orders are made vacating the planned resumed hearing due to COVID-19, and a timetable set for provision of written submissions by each party in lieu of further hearing. The Tribunal’s covering email to the parties attaching the orders was extensive and included:
1.Does the proposed development comply with … R29/C29 …
2.…
3.Does the development application…comply…concerning solar access? … [reference to the shadow diagrams and solar access diagrams tendered by the proponent] … No amended development application in relation to the amended design is before the Tribunal. What should the Tribunal do in these circumstances?
…
(k)24 April 2020 the directions are amended to provide the parties extra time to lodge their submissions.
(l)8 May 2020 the applicant lodges submissions stating that in his view the development does not comply with R29/C29, and commenting at multiple points that rules/criteria are not met and revised drawings are needed. He refers to the existing conditions of approval, and additional conditions of approval proposed by Ms Lana in her witness statement. The applicant’s submissions conclude:
I therefore submit to the Tribunal that [the parties] are in agreement with a number of recommendations and I commend to the Tribunal that they are accepted and enacted. These will necessitate revised drawings and plans, if not new conditions of approval, which I further submit should be filed and served on the Tribunal and all parties….
(m)15 May 2020 the proponent files submissions in general terms asserting that the development “complies with all regulations and meets the criteria for ACTPLA approval” but not specifically referring to R29/C29.
On the topic of solar access the proponent requests the Tribunal permit him to provide an amended plan. The Submission concludes “I formally request that the plans that are conditionally approved to be pasted by the Tribunal….”
(n)15 May 2020 ACTPLA lodges submissions addressing R29/C29 in detail, and suggesting at [40] that the Tribunal deal with solar access by way of a new condition on approval as follows:
The [proponent] shall, within 28 days of the date of this decision, submit revised floor plans, section and other relevant diagrams demonstrating the floor … on the winter solstice (21 June). Note: The planning and land authority will not endorse and release the plans until the authority is satisfied that the drawings correctly demonstrate compliance….
At [43] and [44] reference is made to the existing conditions on approval in relation to fenestration and a high sill window.
At [48] reference is made to the Tribunal imposing a condition about the pathway.
The submission concludes at [49] “… On the evidence it is open to the Tribunal to confirm the decision subject to additional conditions, namely submission of a revised plan addressing the following …”
(o)15 June 2020 the Tribunal emails the parties that it thinks that further provisions may be relevant which were not considered in submissions by the parties, including R70/C70. The Tribunal directs the parties to: “File and serve further submissions within 7 days in relation to whether the proposed development complies with R70/C70 … and any related issues.”
(p)24 June 2020 ACTPLA lodges submissions asserting that the development application meets the requirements of R70/C70. The applicant lodges submissions asserting R 70 is contravened. The proponent lodges a submission by email, from himself and Mr Maddafari, stating that the development complies with R70/C70.
Counsel for the proponent submitted that these examples above did not demonstrate that the proponent must have known it was possible to request a conditional approval, first because many of the examples had nothing to do with rules/criteria 29 and 70, and secondly because there is difference between being aware other parties have floated the idea of conditional approval and knowing that oneself could make such a proposal. While I accept these submissions about the subjective effect upon the proponent, this information is an important part of the legal and factual context in which an objective assessment of the provision of procedural fairness must occur.
The proponent in his oral evidence conceded that:
(a)he knew that ACTPLA’s decision of 24 September 2019 was a conditional approval;
(b)in relation to the questions of solar access and shadowing he knew that he could seek approval on the condition that plans submitted to the Tribunal during the hearing be made a requirement of the build;
(c)he asked the Tribunal for conditional approval in relation to the questions of solar access and shadowing; and
(d)he could have filed further plans addressing rules/criteria 29 and 70 if he had been told to do so.
Additionally, the proponent said:
(a)he was told by ACTPLA’s solicitors that it did not represent him and could not advise him;
(b)he had available to him support and advice from his designer Mr Maddafari, but he did not always seek it;
(c)he had legal advice available to him but did not seek it; and
(d)he cannot be sure that he read all of the documents filed by the applicant and ACTPLA during the proceedings.
ACTPLA’s solicitor submitted that it must have been apparent to the proponent by the date of the hearing that one option for the Tribunal was to confirm the decision subject to additional conditions or remit the decision to be remade by ACTPLA with additional conditions.
I am satisfied that the proponent had a working understanding of the legal framework for the proceedings, drawn from the nature of the original conditional approval, and demonstrated by his actions taken in relation to solar access and shadowing.
I am satisfied that after the hearing the proponent simply did not ‘join the dots’ that he could take the approach with rules/criteria 29 and 70 that he had taken in relation to the solar access issue. He had the knowledge, but he failed to apply it.
That he made such a mistake was not due to a failure of the Tribunal to accord procedural fairness – the content of which is to be assessed objectively by reference to the circumstances such as the nature of the proceedings and characteristics of the parties.
Counsel for the proponent submitted that the directions made by the Tribunal did not give the proponent a reasonable opportunity to present his case or adequately apprise him of the legal issues, because:
(a)the proponent was not directed to file material in advance of the hearing;
(b)the subsequent directions did not provide for the further filing of evidence; and
(c)the subsequent directions did not explicitly refer to the possibility of conditional approval in relation to rules/criteria 29 and 70.
The first criticism of the Tribunal’s directions is not sustainable. It was clear from the proponents actions in lodging the shadow diagrams prior to the hearing that he did not feel, and was not in fact, locked out of providing evidence or submissions for the hearing. He lodged the shadow diagrams at the final directions hearing, and during the hearing the Tribunal both invited him to provide evidence and checked if he had any further evidence at the conclusion of Mr Maddafari’s oral evidence.
Counsel for the proponent submitted that the Tribunals directions were inadequate because after the 20 March 2020 hearing the evidence was ‘closed’, and the directions only gave permission for filing of submissions and not further evidence. This argument might be persuasive to a lawyer, but a self-represented person is unlikely to conceive of, or feel bound by, such principles. Indeed, it was clear from the proponent’s oral evidence that the legal distinction between evidence and submissions was not well understood by him and was not a factor in his failure to lodge evidence in response to those directions.
ACTPLA’s solicitor submitted that while the Tribunal did not expressly invite the parties to file further evidence in its directions of 9 April and subsequently, the proponent could have and should have simply sought in his submissions the leave to file such evidence. I accept this submission. I am also satisfied that by its directions of 15 June 2020 referring to ‘related issues’ the Tribunal invited both submissions and any request for further evidence.
Finally, it was submitted for the proponent that the Tribunal did not meet its natural justice obligations because the directions did not ‘put to’ the parties the prospect of conditional approval or expressly invite them to address the possibility of conditional approval.
Should the Tribunal have said to the parties ‘we can’t think of a condition which addresses these deficiencies – can you?’. Such might have been perfect procedural fairness, but the test for a breach of procedural fairness is concerned with practical justice not perfection. One must consider the entire context and conduct of the matter, of which the directions formed only one part.
Legally, that the decisionmaker could grant approval on condition was apparent from the terms of the planning legislation, and the ACAT Act. This was not an obscure legal principle which needed to be brought to the parties attention.
In the broader factual context the availability of conditions on approval, and what those conditions might comprise, was integral to the decision under review; ventilated during the hearing by the other parties and in the proponent’s case; and addressed at multiple points in the written submissions.
When the Tribunals directions are objectively considered within the legal and factual context, I am satisfied that the proponent was accorded procedural fairness. The proponent was given reasonable opportunity to understand and present his case, he did not make the most of that opportunity.

Final comments

Because I was not satisfied that there was a breach of the requirements of procedural fairness, on 18 November 2021 I dismissed the proponent’s Bhardwaj application.
This decision demonstrates the uncertainty which may attach to decisions of the tribunal which are criticised on the grounds of jurisdictional error consisting of a failure to provide procedural fairness. Whether the tribunal’s order in such a case can be relied upon (where it provides authority to do something) or must be obeyed (where it requires performance) will depend upon the particular legislation, whether there was a breach of natural justice and whether such breach was material. Certainty can only be obtained by a party bringing proceedings to clarify the situation, one way or another.
If the legislature intends that orders of the tribunal that are affected by a material breach of the rules of natural justice be legally effective until they are set aside by a tribunal or court order, then statutory clarification of this intention is required.

………………………………..

Presidential Member M-T Daniel

Date(s) of hearing:	17 November 2021
Applicant:	In person
Solicitors for Respondent	Clare Besemeres, Sonja Gasser, ACT Government Solicitor
Counsel for the Party Joined:		Mr B Buckland
Solicitors for the Party Joined:		John Harris, O’Connor Harris