Idonz Pty Ltd v National Capital Development Commission

[1986] FCA 213

Re: IDONZ PTY. LIMITED
And: NATIONAL CAPITAL DEVELOPMENT COMMISSION; SERTON PTY. LIMITED and A.D.C.
PROPERTIES (VIC) PTY. LIMITED
No. ACT G96 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Woodward J.
Everett J.

CATCHWORDS

Administrative Law - Planning and development - natural justice - development conditions for block of land approved by National Capital Development Commission - failure to consult owners of adjoining blocks with respect to effect of development on amenity of adjoining land - appellant adjoining owner - claim that amenity of land impaired by proposed building - whether appellant had "interest" requiring that it be consulted before approval of development - whether "legitimate expectation" that such consultation would take place - whether failure by N.C.D.C. to take into account relevant considerations - whether application of policy without regard to merits of the case.

Administrative Decisions (Judicial Review) Act 1977 ss. 5(1)(a), (e), 5(2)(b), (f)

National Capital Development Commission Act 1957 s. 11

Buildings (Design and Siting) Ordinance 1964 (A.C.T.) s. 6

F.A.I. Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342 ref'd to

Re Ludeke (1985) 59 A.L.R. 417 ref'd to

Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 ref'd to

Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 A.C. 374 cons.

R. v. Commissioner for Town and Country Planning, ex parte Scott (1970) 24 L.G.R.A. 108 dist.

Sean Investments v. Mackellar (1981) 38 A.L.R. 363 ref'd to

Gurleven v. Minister for Immigration and Ethnic Affairs (Full Federal Court, unreported, 24 February 1984) ref'd to

Peko-Wallsend Ltd. v. Minister for Aboriginal Affairs (1985) 59 A.L.R. 51 ref'd to

Tooheys Ltd. v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 ref'd to

HEARING

MELBOURNE

#DATE 30:5:1986

ORDER

The appeal be dismissed.

The appellant pay the respondents' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of Neaves J. in which he dismissed an application by the present appellant made under the Administrative Decisions (Judicial Review) Act 1977. The facts are fully and carefully set out in the judgment of his Honour and for the most part are not the subject of challenge. I shall not endeavour to recapitulate them.

1. The appellant holds a lease from the Commonwealth under the City Area Leases Ordinance 1936 (A.C.T.) and the proceedings relate to land development which has commenced on contiguous land. The appellant was not consulted before approval was given by the first respondent to the development under the Buildings (Design and Siting) Ordinance 1964 (the "Design and Siting Ordinance") or to the building, by the Building Controller under the Building Ordinance, 1972. The first notice it had of the development was in a newspaper report or notice.

2. The decision under challenge is the development approval granted by the respondent Commission on 19 November 1984.

3. The land being developed had on it a small building occupied by the Country Womens' Association (C.W.A.). The proposal involved the demolition of the building and the erection in its stead of a six-storey commercial building, a part of which was to be occupied by the C.W.A. This building has already been constructed to ground floor level, with some columns and reinforcing rods extending further up.

4. The complaints of the appellant, who owns and operates a well-known motel on its land, relate to the siting of the proposed building, having in mind its size, and to other considerations, some of which are aesthetic. The fact that the western side of the building runs along the boundary with the appellant's land leads to reasonable fears that it may have an adverse effect on the present enjoyment by the appellant of its land. On the other hand, no legal interest of the appellant will be interfered with. There is no legislation which gives the appellant, or a person or company similarly placed, a right to oppose the development, and, subject to what I will say about natural justice, there is no such right at common law.

5. The first respondent is proceeded against as decision-maker. The second and third respondents are owner and developer respectively of the new building, who were joined on their own application.

6. There were two stages in obtaining approvals for the proposed development. The first arose from the fact that the lease under which the C.W.A. held was a special purposes lease which did not allow the carrying out by owner or developer of the intended purpose. Application had to be made for a change in the permitted purpose, and a new lease was granted to the C.W.A. which permitted this purpose. The Commission had the function of giving approval for the change in use, and attaching such conditions for any proposed development on the site as it saw fit. As I understand, the Commission, in accordance with its usual practice, determined upon the development conditions by negotiation with one or both of the other respondents. A decision was reached on this matter on 5 October 1984 by the Chief Planner of the Commission (a Mr. Campbell), who was acting under the authority given by s.6 of the Design and Siting Ordinance. On 25 October the acting Chief Planner of the Commission (Mr. Moseley) also approved the formal record of the new governing provisions.

7. The appellant applied on the first day of the hearing of the application presently under appeal, which was 14 October 1985, for leave to amend to seek orders of review in respect of these decisions of 5 October 1984 and 25 October 1984, but leave was refused. A separate proceeding seeking relief in respect of those decisions was then commenced, but his Honour declined to allow it to be heard or considered with the present application. These applications were subsequently renewed, and again refused, as also was an application, made towards the end of the hearing, to add a challenge under the general law to the decision of 19 November. His Honour allowed an application to add further grounds to the amended application arising from evidence given in the proceedings before him.

8. Approval was granted to the particular development on 19 November 1984. It was then necessary for the second and third respondents to obtain approval of building plans and specifications under the Building Ordinance 1972. This was done, and no question arises concerning that part of the procedure.

9. The respondent Commission is incorporated under the National Capital Development Commission Act 1957. Its functions are set out in s.11 of the Act, of which the first three sub-sections are:
   
   

"11.(1) The functions of the Commission are to undertake and carry out the planning, development and construction of the City of Canberra as the National Capital of the Commonwealth.

provide, or arrange for the provision of, within the Australian Capital Territory, buildings, roads, bridges, works for the supply of water or electricity, sewerage or drainage works and other matters and things for, or incidental to, that purpose.

(3) The Commission has power to do all things necessary or convenient to be done for or in connexion with, or incidental to, the performance of its functions and the exercise of its powers."

1. Section 6 of the Design and Siting Ordinance deals with powers of the Commission:
   
   

"6.(1) Subject to this Ordinance, the Commission is authorized -

(a) to grant (either absolutely or subject to conditions) or refuse approval of proposals with respect to the external design and the siting of buildings and of proposals with respect to alterations affecting the external design and the siting of buildings;

(b) to exercise all other powers expressed by this Ordinance to be exercisable by the Commission: and

(c) to grant (either absolutely or subject to conditions) or refuse an application, for the purposes of section forty-seven of the Building Ordinance 1972, for the approval of the Commission with respect to the external design and siting of a building or an alteration to a building."

1. The ground under the Judicial Review Act more particularly relied upon is that of denial of natural justice (s.5(1)(a)). The case put is that the appellant had an "interest" within the meaning of the authorities, which entitled it to be "heard" that is to say orally or in writing, before the approval was granted. I do not know that the nature of the "interest" was specifically formulated but it was said to relate to the adverse effects of the particular proposal on the beneficial enjoyment of the plaintiff's land. It is not argued that it had a separate entitlement by reason of "legitimate expectation", although factors going to that matter were relied upon in aid of the principal submission.

2. It does not seem to me that the appellant had an "interest" which gave it the right to be heard in relation to the application for development approval. It was not, as a corporation, being affected in its corporate structure or in its rights, nor was anything being said against it or its activities. Nothing was proposed or intended which would have such a serious effect, actually or potentially, upon the appellant's land or the enjoyment thereof that in common sense and fairness it should first be consulted. There was nothing beyond a legitimate exercise by the second and third respondents of their rights. It is to be accepted, of course, that having obtained the approval, they would be likely to proceed with the proposed building.

3. It is common ground that the respondent's land was open for commercial development, and it was predominantly commercial development which had been approved, and was taking place, when the application under the Judicial Review Act was made. There is no evidence that the profits of the appellant would suffer by reason of the erection of the respondent's office building, but even if there were some evidence, or reasonable implication, of this loss, it would accord with the conventional way of looking at these matters to regard the parties as being in competition in respect of such approved use of their land as they could make. The appellant could not have any legitimate, or reasonable, expectation that it would be heard before the approval was granted. It had itself made an application to add three levels to what is now a three-level building, but we were told at the hearing that this application, or the conditions desired, had been refused, and that an appeal is pending. Much of the objection of the appellant flows from the nature of its motel building (which has open verandahs on the two upper levels), and from its rather unusual siting, at an angle across the block on which it stands. At the northern end of the building the verandahs, from which clients obtain access to their rooms, are at one point only 5 metres from the boundary of the development site.

4. Counsel cited passages from many cases, mostly related to natural justice in connection with individuals, but all the guidance needed is to be found in the three High Court decisions, F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342; Re Ludeke (1985) 59 ALR 417; Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 (The decision in Kioa had not been handed down when his Honour delivered judgment). One sees from the decisions not only that the content of the requirements of natural justice vary with circumstances, and therefore become a matter of decision in relation to the particular case, but whether occasion arises to apply them at all is also very much dependent upon the facts of the particular case. As already stated, the appellant had no interest which attracted the rules of natural justice, and the case would not be advanced even if "legitimate expectation" were relied on.

5. In relation to the matter of "legitimate expectation" I should mention one aspect. Attention was drawn to a manual for general information issued by the Commission in February 1984 which is described on its cover, after the words in bold type "Civic Centre Canberra", as "Policy Plan; Development Plan". It starts in para.1.1 by saying "The purpose of this report is to record the Commission's Policy Plan and Development Plan for Canberra's Civic Centre". (The subject site is within "Civic Centre"). It is in part a promotional document. The role of the Commission as planning authority is mentioned in a number of places. Attention has been directed to part of paragraph 3.5.5:
   
   

"The basis for development approval in Canberra is a system which recognises the varied needs of developers and which secures the public interest of good townscape design. This is achieved by a process of negotiated approval."

Under the general heading "Policies of Building Height and Building Bulk", there is a sub-heading "Amenity" which introduces the following:

"Apart from the environmental amenity of public spaces, consideration has to be given to neighbouring uses and buildings

New buildings should respect the design character of adjacent and neighbouring buildings with elements of facade which conform to the scale of those buildings

The planning considerations will also include the likely impact of the proposed development on the neighbouring uses in terms of:

- wind

- sun

- light

- sound

- smell

however, if the current use and the proposed development is in a commercial policy area, then standards suitable to a commercial area will be the basis of assessment notwithstanding the current neighbouring use."

1. It was contended that, to take a relevant example, the above reference to wind meant both that the appellant was to be protected in so far as wind considerations were concerned and that it was entitled to be heard in relation thereto. In my view what is said should be regarded as doing no more than is stated, namely expressing general policy considerations, for the guidance of developers. The Commission was free to apply those in relation to an application, as it thought appropriate in any particular case. The manual goes on:
   
   

"5.2.1 The Release of New Sites

The N.C.D.C. prepares development conditions from the Policy Plan and Development Plan statements in the Report. These conditions are more specific than the policy statement as they form the basis of the final lease conditions. The land use may be more selective, floor space figures may be specific and conditions reflecting site characteristics, sun angles, colonnades etc. may restrict development on site.

. . .

5.2.2. The Redevelopment of Existing Sites

. . .

The conditions which the Commission finally determines may be either more elastic or more restrictive than the lessee's initial reading of the Policy Plan depending on judgements in land use, urban design and benefits to Civic at the time of the decision. The longer term parameters of the Policy Plan are therefore tempered by an immediate assessment of the current economic, social and design needs of Civic."

The manual did not suggest a regular practice of consultation with neighbours, and of course, none existed, see Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 A.C. 374. Lord Fraser had there said, at p.401:

"Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue."

1. As the policy document indicates, it is hoped that approval under the Design and Siting Ordinance will be achieved by a process of negotiation, commenced by a developer at the earliest stage. Negotiation took place in the present case, over a matter of many months. It is difficult to see the place of an independent (and potentially opposed) third party in such negotiations. This consideration goes some distance, I think, in showing that the cases must be rare when a neighbouring owner can be expected to be brought into development planning or heard on what is proposed. Reliance was placed on R. v. Commissioner for Town and Country Planning; ex parte Scott (1970) 24 LGRA 108, a decision of Burbury CJ., in which he made absolute a rule nisi for certiorari, directed to a Commissioner for Town and Country Planning. The latter had failed to perform an implied duty to give notice of a hearing of the planning appeal to persons who might be affected by the upholding of the appeal. The case is somewhat remote in its facts from the present, but the case was in any event decided on particular statutory provisions (see also s.342ZA of the Local Government Act, 1919 (NSW), as it stood before being repealed by Act No. 205 of 1979; Environmental Planning and Assessment Act, 1979 (N.S.W.) s.84).

2. There are, of course, practical difficulties in giving effect to a notion that a planning authority such as the first respondent is required by law to give a hearing to persons, or companies, likely to be affected by each application. These difficulties may not be insuperable, but the difficulty of their application adds conviction to the view that, in general, the consideration of a planning matter does not invoke the rules of natural justice so far as concerns third parties. I say "in general", because it seems to be the case that firm guidelines are not established in this area of the law, and whether some requirements of natural justice are to be invoked may turn on particular circumstances. All I can say is that there are not any such circumstances in the present case.

3. Although there was not in my opinion any requirement that the Commission give the appellant a hearing, or receive its representations, and so no denial of natural justice, it does not follow that the appellant did not have standing to bring the application, and I will proceed as if it did.

4. I have mentioned the wind aspect. It is submitted that it was a relevant consideration which was not taken into account (s.5(2)(b)). There is no mention of the subject in the documents relating to the Commission's approval. There was evidence before the learned judge that it was a significant matter so far as concerned the appellant. The position, put shortly, is that the presence of the new building, with one side on the boundary, is likely to create wind turbulence which in some circumstances, probably not frequent in occurrence, will involve discomfort and inconvenience for short periods to persons on or near the north-east corner of the appellant's verandahs. If several stories are added to the building, the evidence from wind-tunnel tests is that this wind effect is likely to be less.

5. The Commission, when acting under the relevant part of the Design and Siting Ordinance, is concerned with the external design and siting of buildings. The wind problem can be said to flow from, or be associated with, external design and, more particularly siting.

6. It seems to me that it is not shown that the Commission completely failed to take wind factors into account. Even if it did fail in this regard, there is not, for that reason alone, a situation which comes within s.5(2) of the Judicial Review Act. Wind was doubtless a relevant factor, just as many other matters were, but it does not follow that failure to take any one into account results in invalidity. A decision may involve many relevant factors but the Judicial Review Act looks to relevance of a particular order. What is being referred to are those matters which go to the validity of the decision, and those are to be found expressed in the relevant legislation or are clearly implicit therein. The reference is to the fulfilment of the purpose of the power, and to major aspects rather than to detail (see Sean Investments v. Mackellar (1981) 38 ALR 363; Gurleven v. Minister for Immigration and Ethnic Affairs (No.G14 of 1983, Full Court, 24 February 1984, per Fox J.) and Peko-Wallsend Ltd. v. Minister for Aboriginal Affairs (1985) 59 ALR 51 per Bowen C.J.). The learned judge found that the consideration of wind was not pursued, because experienced officers, who had given evidence, were of the view that it was only with tall buildings, say about ten floors, that wind problems were experienced. The Policy Plan reinforced this conclusion, as it also dealt with wind turbulence only in the context of tall buildings. Put another way, wind effect was not in the circumstances regarded as at all serious, or worthy of further consideration. Evidence called at the hearing showed that this judgment might not be entirely correct, but that is a different matter.

1. It is submitted that the Delegate who approved the plans on 19 November did not exercise his own discretion, but acted formally, without considering the plans for himself. There seems no basis for this submission. If the acts of a decision-maker are examined minutely, it will not infrequently be found that he has had reference to various documents, and various views, and probably some matters of policy and it will always be possible to suggest other matters which he might have considered, but did not. His own views and experience will be brought to bear. The evidence is to the effect that Mr. Gilchrist read and studied what was put before him and had discussions thereon with officers junior to him. He satisfied himself that the drawings were in accordance with the redevelopment conditions which had been settled earlier.

2. Some of the grounds of appeal relate to the refusal of his Honour to give leave to amend so as to embrace the decision of 5 October and 25 October 1984, and his refusal to entertain the separate proceedings filed during the hearing of the matter. His Honour did not in his judgment in this case give reasons for these rulings, although he did say that he refused the application to add a claim under the general law on the ground that it was not then appropriate to raise substantially different issues of fact and law for consideration.

3. The concern of the applicant was that, if the earlier decisions were not challenged, and the matters respecting them were not before the Court it might be met with an argument that the later decision (of 19 November) was "governed and justified" by the earlier decisions.

4. The fact is that the earlier decisions have been referred to quite often during the present hearing, and documents respecting them have been before us. While accepting that they were made, it does not seem to me that the considerations affecting my conclusion in this case have in any compelling way, or any other material way, been affected by the earlier decision-making. In the end however, I must say that his Honour's rulings now in question were made in the exercise of a wide, albeit judicial, discretion and no sufficient grounds have been established for interfering with them.

5. In my view, the learned judge was correct, and the appeal should be dismissed, with costs.

6. After the appeal had been argued, and judgment reserved, two notices of motion were filed, in the same terms, one on behalf of the first respondent, and one on behalf of the others. They sought leave to have the hearing of the appeal re-opened, for the purpose of adducing fresh evidence. The applications were opposed.

7. Five affidavits were filed on behalf of the first respondent, and none on behalf of the other respondents. One affidavit in reply was filed on behalf of the appellant, to be used only if the leave sought was given, and the other affidavits read. We were told by counsel for the first respondent that the general gist of the evidence sought to be tendered was that the appellant had recently had in mind re-development of its land by the erection of a large substitute building, and had (through an allied company) had extensive communications with regard thereto with the N.C.D.C.. The plan to add three storeys had not been abandoned. These, and associated matters, were said to go to the exercise by the Court of its discretion, and it was added that emphasis had only been placed on the exercise of discretion by the appellant during the argument of the appeal, giving a minimum opportunity to the respondent to produce relevant evidence. It was not disputed that all relevant information had been in the hands of officers of the N.C.D.C. before and during the hearing of the appeal.

8. The application of the first respondent seemed to us to be without merit of any substance, and as its acceptance would be contrary to well established principles, we dismissed it.

9. The other respondents did not seek to explain by evidence either the reason for the late applications, or how it was desirable, from their point of view, that the evidence of the first respondent should be admitted. It was said from the bar table that they had not until recently been aware of the approaches to the N.C.D.C. on behalf of the appellant, and its associated company. What inquiries they might have made, and what they had heard, would doubtless be matters to be dealt with if the case was re-opened. We were told, incidentally, that some cross-examination would be involved, and counsel for the appellant foreshadowed an application to set aside a subpoena duces tecum which had been issued. Matters of intention were in issue, so we were informed, and it may have been that had the applications succeeded, the case would have had to be remitted to the single judge.

10. We were of the view that the applications of the second and third respondents were without merit, and ordered that they be dismissed.

11. We would add that it would only be in highly special circumstances that the hearing of an appeal would be re-opened for the purpose of further evidence being taken. From beginning to end, the strong policy of the law is that litigation, following due process, be brought to finality.

JUDGE2

In this matter I have had the advantage of reading the draft judgment of Fox J. I agree with his Honour's reasons for judgment and with the orders he proposes. I only wish to add a few thoughts of my own because of the potential significance of the applicant's claim to be entitled to 'natural justice', or 'procedural fairness', as the concept is now quite often (and, in my view, more usefully) described.

1. The case arises from a planning decision by the first respondent ('the Commission') which granted a permit for the design and siting of a six-story office block. The occupier of an adjoining property has challenged the decision because it was not informed of the application for a permit or given any opportunity to make representations about it. Senior counsel for the applicant concedes that, if his argument is correct, there would be an obligation on all planning authorities, before granting similar permits, "to recognize their duty to those who are affected by developments that they propose to approve . . . . in every case they will be bound to ask themselves the question, should we notify anybody and, if so, whom and how?"

2. In support of this submission, reliance was placed upon a number of authorities, but perhaps the firmest foundation for the argument is to be found in the recent judgment of Brennan J in Kioa v West (Minister for Immigration and Ethnic Affairs) (1985) 60 ALJR 113 at 142-3. His Honour there said,
   
   

"The presumption that the principles of natural justice condition the exercise of statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted.

If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised."

1. If this is to be taken as a correct statement of the position which has been reached in the development of administrative law, then there must be a good deal to be said for the applicant's argument.

2. A permit to site a building hard up against a common boundary, or to build a structure high enough to deflect winds downwards and create turbulence, or to present a blank wall to observers (all of which are alleged in the present case), may have minimal effects on the public at large and yet greatly affect the enjoyment by the next door neighbour of his property. This would seem to be an 'interest' of the neighbour within the meaning used by Brennan J in the passage cited, even though it does not amount to a legal right, or proprietary interest properly so called.

3. However it must be noted that, in the above passage, Brennan J was deliberately departing from his own previous qualification, which would have limited the 'interests' giving rise to entitlement to procedural fairness to those which were 'proprietary or financial'; see F.A.I. Insurances Ltd v Winneke (1982) 151 CLR 342 at 412, and Re Ludeke; Ex parte Customs Officers Association of Australia (1985) 59 ALJR 483 at 490, 59 ALR 417 at 427. And in Kioa's case, Mason J at 126 said,
   
   

". . . generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. (Authorities cited). The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."

Deane J, at 147, agreed with Mason J's reasons for judgment. At 148 his Honour said,

"In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness."

1. Gibbs CJ, who dissented, referred (at 118) with approval to the judgment of Mason J in the F.A.I. Insurances case (above) where he said,
   
   

"The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power . . . . The application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or a privilege . . . ."

1. Wilson J did not find it necessary to advert to the type of interest which can give rise to an entitlement to procedural fairness.

2. It remains to be seen whether the view of Brennan J, which has not yet been endorsed by other judges of the High Court, will prevail. Even if it does, I am not persuaded that the present case would be an appropriate one in which to apply it. In spite of the sweeping nature of the submission on behalf of the applicant, referred to above, each planning case still has to be determined in its own legislative setting and on its own facts.

3. The legislative setting here is that the general town planning for the area in question has been performed and is not in dispute. The applicant concedes that it can have no objection to a substantial building being built on the subject site. It has applied for a permit to add three storeys to its own building.

4. The decision which is challenged relates to the detailed siting and external design of the building. The Buildings (Design and Siting) Ordinance 1964 (ACT), under which the decision was made, provides in ss. 6 and 7 as follows:
   
   

"6.(1) Subject to this Ordinance, the Commission is authorized -

(a) to grant (either absolutely or subject to conditions) or refuse approval of proposals with respect to the external design and the siting of buildings and of proposals with respect to alterations affecting the external design and the siting of buildings;

(b) (not relevant)

(c) (not relevant)

(2) The Commission shall not refuse an approval under this Ordinance unless the Commission is satisfied that it is necessary to do so for the purpose of securing the carrying out or observance of the policies of the Commission with respect to the planning and development of the City of Canberra.

7. The erection or alteration of a building shall not be commenced, carried on or completed except in conformity with proposals approved in writing by the Commission with respect to the external design and the siting of the building, or of the building as proposed to be altered, and with any conditions subject to which the approval has been given."

1. There is certainly nothing in these provisions which suggests an obligation on the Commission to inform neighbouring occupiers that an application has been made, and to seek their views upon it. In fact the Commission is required to approve the application unless it is satisfied that it infringes the city's planning policies.

2. It is true that the Commission can impose conditions; and no doubt some of these might be designed to protect the interests of neighbouring occupiers. In this sense the Commission would be "entitled to have regard to the interests of the individual before (it) exercises the power", to use Brennan J's words (above). But the chief purpose of town planning is to require individual owners and occupiers to comply with various guidelines and restrictions governing their use of their own land, in the interests of the community generally, and sometimes their more immediate neighbours in particular. It is the role of the Commission to look out for potential conflicts of interest and to resolve them. It should not need either submissions or information from other landowners or occupiers before it can carry out its task. Other town planning authorities, such as elected bodies or independent tribunals, may require such procedures. An expert body, such as the Commission, should not. Since the relevant legislation makes no provision for notification to other occupiers, the receipt of submissions by them, the giving to them of reasons for decision, or appeal by them against the grant of a permit, I do not believe these apparently deliberate omissions should be supplied by the Court.

3. Nevertheless I would accept that a neighbour (of an applicant) who is particularly affected by an improper, unlawful or erroneous decision of an authority such as the Commission may be a person aggrieved within the meaning of the Administrative Decisions (Judicial Review) Act 1977 ('the AD(JR) Act'). It was said by Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79,
   
   

"The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public."

1. It is apparent that there may be a large degree of overlap between the concepts of "a person who is aggrieved" and a person entitled to 'procedural fairness'. However, I do not believe the concepts can be equated.

2. Although Brennan J in Kioa's case at 143 said
   
   

". . . it is right to equate the interest which tends to attract the principles of natural justice with the interest which, if affected, gives standing at common law to seek a public law remedy . . .",

I would, with respect, suggest that there may be cases where the language and scheme of the legislation call for attention to individual interests by a decision-maker without giving a corresponding right to those individuals to be heard. The Court has previously rejected the argument that the attraction of the operation of the AD(JR) Act to a decision of an administrative character necessarily implies that the decision-maker is obliged to accord procedural fairness (see Capello v Minister for Immigration and Ethnic Affairs 1980 2 ALD 1014 and Sezdirmezoglu v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561) Similarly, I do not believe that a person who can establish that he is aggrieved by a decision must necessarily have been entitled to procedural fairness. The concepts are different, although the tests to be applied in determining those questions may be similar. It may be the case that a person who can establish that he was entitled to procedural fairness in the decision-making process will necessarily be a person aggrieved by a decision, and therefore entitled to an order of review, if he can establish that a breach of the rules of natural justice occurred (s.5(1)(a)). However, whilst there will be many cases where the reverse applies, and a person aggrieved will have been entitled to natural justice, it is not a conclusion that necessarily follows from the structure of the legislation.

1. For the reasons given by Fox J, I do not believe there was any error by the decision-maker in the present case.

2. After it had reserved its decision, this Court was asked by the respondents to re-open the hearing of the appeal in order to allow fresh evidence to be called. The evidence proposed related to the applicant's likely use of its own land. The Court rejected this unusual application and reserved its reasons, which are now given.

3. I rejected the first respondent's application on the ground that the evidence proposed was available to it at the time the appeal was heard. I rejected the second and third respondents' parallel application on the grounds that the evidence would be complex, contested and not appropriate for consideration by an appellate court. As to its probative value, the evidence would have added little to material already before the Court and would have related only to a possible exercise of discretion against the appellant if it were otherwise successful in its appeal. For these reasons the applications were rejected with an appropriate order for costs.

JUDGE3

I have had the advantage of reading in draft form the reasons for judgment of Fox J and Woodward J. I agree with the reasons which each has expressed and the orders proposed.

1. I wish only to add some brief comments on the primary argument for the appellant that His Honour was in error in his conclusion that the first-named respondent, the National Capital Development Commission ("the Commission") was not bound by the rules of natural justice to afford the appellant an opportunity to be heard before the design and siting approval for the proposed development on the subject land was given.

2. The argument of senior counsel for the appellant at its highest was that in the context of the National Capital Development Commission Act 1957 (Cth) and relevant Australian Capital Territory Ordinances, in particular the Buildings (Design and Siting) Ordinance 1964, the Commission was under an implied common law obligation, in virtually all cases of proposals for approval under the Design and Siting Ordinance, to afford a person in the position of the appellant in this case an opportunity to be heard, or, in the words of Aickin J in Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at p. 516, "to make representations (to the Commission) on his own behalf, which it must consider before taking action".

3. It would not be proper, in my opinion, to reject such an argument merely by reason of the manifest extreme administrative inconvenience, delay and expense which acceptance of it would entail or the uncertainty as to how the Commission would lawfully comply with the obligation.

4. It is first necessary to consider the judgment of Brennan J in Kioa v West (Minister for Immigration and Ethnic Affairs) (1985) ALJR 113, and in particular the passage from his judgment at pp 142-3 cited by Woodward J. In my opinion, with respect, the propositions propounded by Brennan J in that extract must be considered strictly in the light of the wide qualifications to which they were expressly made subject by His Honour. These qualifications included the text of the relevant statute, the subject matter, the scope and purpose of the legislation, and "the administrative framework created by the statute within which the power is to be exercised". For the purposes of the present case, there should, in my opinion, be added to these factors the report of the Commission which in 1983 recorded its "Policy Plan and Development Plan", to which reference is made later in these reasons for judgment.

5. The Commission is invested with wide powers to enable it to "carry out the planning, development and construction of the City of Canberra" (s. 11 of the National Capital Development Commission Act).

6. References have been made in other judgments to the authority conferred on, and the obligation imposed on, the Commission by the provisions of s. 6 of the Buildings (Design and Siting) Ordinance 1964, and I need not repeat them.

7. At the heart of these provisions is the mandate to the Commission to secure "the carrying out (and) observance of the policies of the Commission with respect to the planning and development of the City of Canberra". These policies are stated in the report by the Commission in 1983, which was tendered in evidence, and is referred to in detail in the judgment of Fox J. The report was formally adopted by the Commission and forwarded to the Minister for Territories and Local Government, in accordance with s. 12 of the National Capital Development Commission Act.

8. Against this legislative background, and having regard to the administrative framework which existed, I do not consider there is any lawful basis for the implication of a requirement that the appellant should have been apprised of the application and in some unspecified manner given the opportunity to make representations, which it seems, in the light of the evidence on the hearing of the application, would have been disputatious, protracted and inconclusive.

9. It is difficult to suggest principles of universal application in this area of administrative law because, as Aickin J said in Heatley v Tasmanian Racing Commission (1977) 137 CLR 487, at pp 499-500 "It is plain that each statute must be separately examined as a whole and that, as Barwick CJ said (in Twist v Randwick Municipal Council (1976) 136 CLR 106 at p. 111) 'there is no rule which can provide in every case an answer by its mechanical application'". It is for this very reason that cases such as R. v Commissioner for Town and Country Planning, Ex parte Scott 24 LGRA 108, a decision of Burbury CJ in the Supreme Court of Tasmania, on which strong reliance was placed by senior counsel for the appellant, should be distinguished because the statutory basis for the challenge to the administrative omission in that case was very different to the statutory and general factual background in the present case.

10. It is clear from the case of Kioa that there is not unanimity among the judges of the High Court of Australia concerning the nature of an interest which will attract the implication of a duty on the part of an authority in the position of the Commission to fulfil its functions in accordance with accepted principles of natural justice. However, that fact does not affect my opinion that, in the circumstances of this case, no such duty could be implied.

11. Nevertheless, I incline to the view, as do other judges of the Court, that the applicant had status under the Administrative Decisions (Judicial Review) Act 1977 (Cth) as a "person aggrieved", and I agree that its appeal should be determined on that basis.

12. I have considered the detailed reasons expressed by Fox J for not allowing the appeal on any of the grounds argued under the Administrative Decisions (Judicial Review) Act. I concur in them and cannot usefully add to them.

13. After the Court had reserved its decision on the hearing of the appeal and before judgment had been delivered, two notices of motion were filed, one dated 9 April 1986 on behalf of the first-named respondent, and the second dated 14 May 1986 on behalf of the second-named and third-named respondents, seeking leave to reopen the hearing of the appeal for the purpose of adducing further evidence in accordance with a number of affidavits filed in support of the motions.

14. After hearing argument, the Court dismissed both motions with costs. I concurred in that decision. I agree with the views now expressed by Fox J in relation to the motions.