Idonz Pty Ltd v National Capital Development Commission

Re: IDONZ PTY. LIMITED
And: NATIONAL CAPITAL DEVELOPMENT COMMISSION; SERTON PTY. LIMITED and A.D.C.
PROPERTIES (VIC) PTY. LIMITED
No. ACT G 66 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - Judicial review - Decision of National Capital Development Commission approving proposals with respect to the external design and siting of a proposed building in the Civic Centre of the City of Canberra - Approval not to be refused unless necessary 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 - Policies set forth in Civic Centre Policy Plan - Whether Commission bound to give notice of the application for approval to lessee of adjoining property and afford it an opportunity to make submissions - Whether Commission bound to observe the procedures approved under the Environment Protection (Impact of Proposals) Act 1974 (Cth) - Whether decision-making responsibility had been abrogated - Whether relevant considerations not taken into account - Whether irrelevant considerations taken into account.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

National Capital Development Commission Act 1957 (Cth), ss.3, 11, 12

Buildings (Design and Siting) Ordinance 1964 (A.C.T.), ss.6, 7, 10, 13

Building Ordinance 1972 (A.C.T.), s.8

Environment Protection (Impact of Proposals) Act 1974 (Cth), ss.5, 6, 9

HEARING

CANBERRA
#DATE 11:12:1985

ORDER

The application be dismissed.

The applicant pay the respondents' costs of the application.

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

JUDGE1

This is an application by Idonz Pty. Limited ("the applicant") under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of a decision of the first respondent, the National Capital Development Commission ("the Commission"), made on 19 November 1984. By that decision the Commission, pursuant to the provisions of the Buildings (Design and Siting) Ordinance 1964 (A.C.T.) ("the Design and Siting Ordinance), approved proposals with respect to the external design and siting of a building which is at present under construction on certain land within what is known as the Civic Centre of Canberra. The land is more particularly described as Block 14, Section 23, Division of City in the Australian Capital Territory.

Section 23 is an area of land bounded on the north by an arterial road known as Barry Drive, on the east by Moore Street, on the south by Rudd Street and on the west by Marcus Clarke Street. It is divided into a number of blocks.
The applicant is the lessee under a lease, granted to it by the Commonwealth of Australia ("the Commonwealth") pursuant to the City Area Leases Ordinance 1936 (A.C.T.) ("the City Area Leases Ordinance"), of Block 13 in that section. That block is situate at the corner of Barry Drive and Marcus Clarke Street and on it is erected the Town House Motel. The motel, which was constructed in 1961, has been described as a pavilion building, all of its external walls being some distance from the nearest boundary of the block. It consists of a ground floor and two upper floors. Each of the upper floors comprises a number of rooms for the accommodation of patrons of the motel. Each of those floors has a continuous open balcony providing access to the residential accommodation. In March 1984 the applicant received from the Commission development approval for the addition of three storeys to the motel building. Work on that addition has not yet commenced. The term of the applicant's current lease commenced on 14 September 1984 and terminates on 16 July 2074. Under the terms of the lease the land may be used only for the purposes of a motel.
Adjoining part of the eastern boundary of Block 13 is Block 14, that block having frontages to Barry Drive and Moore Street. Prior to the events with which this proceeding is concerned, the Country Women's Association of New South Wales was the lessee of certain land that included the land at present known as Block 14. The land was then known as Block 3 and included an area of land which has since been excised from that block for the purpose of the future widening of Moore Street. Under a lease granted to that Association by the Commonwealth pursuant to the Leases (Special Purposes) Ordinance 1925 (A.C.T.) ("the Leases (Special Purposes) Ordinance") for a term of 99 years commencing on 20 March 1953, the land might be used only for the purposes of the Country Women's Association of New South Wales or for such other purpose as might be consented to by the Commonwealth or the relevant Minister. The lease did not permit any trading or commercial purpose. A single storey brick building covering a small part only of the site and containing meeting rooms and offices had been erected on the block.
Mention should be made of the other blocks forming part of Section 23. To the south of Block 14 is Block 2 which is at present vacant land, the building which was formerly erected on that land and housed the Polish Ex-servicemen's Club having been demolished. Approval has been given for the erection of a six storey commercial office building on that site fronting Moore Street. From Block 2 has been excised an area of land for road widening purposes. To the south of that block is Block 7 and south of that again and having frontages to the re-aligned Moore Street and to Rudd Street is Block 10. The land comprising Blocks 7 and 10, together with areas which were taken for the widening of Moore Street, was formerly described as Block 1. On Blocks 7 and 10 a commercial office building has been constructed which is of eight storeys on Block 10 but of two storeys only on Block 7. The part of the building erected on Block 7 and having a frontage to Moore Street of 18.25 metres is occupied by the Canberra R.S.L. Club. To the west of Blocks 7 and 10 is Block 4 which is sometimes referred to as the Canberra Squash Bowl site reflecting the purpose for which that land was formerly used. That site has been redeveloped and a six storey commercial office building has recently been completed thereon. The remainder of Section 23 was originally known as Block 5 with frontages to Rudd Street, Marcus Clarke Street and Barry Drive. This was the block on which the Town House Motel was constructed, the area at the corner of Rudd Street and Marcus Clarke Street having erected on it a single storey building used as a restaurant. The block was subsequently subdivided into Blocks 12 and 13 and the applicant's interest in an area of land fronting Rudd Street and Marcus Clarke Street (Block 12) was sold to a purchaser for the purpose of the erection theron of a commercial building. The construction of that building, which is of eight storeys over the part of the site adjacent to the motel and of two storeys on the Rudd Street frontage, is nearing completion. As already mentioned, the land on which the motel stands is now known as Block 13.
It should also be mentioned that Block 13 is of irregular shape and the point at which its northern boundary meets its eastern boundary (which is also the western boundary of Block 14) is some 6 metres south of the north western corner of Block 14.

Legislation
Before referring to the events which culminated in the building construction work which is at present being carried out on Block 14, some reference should be made to relevant legislation.
The Commission is established by the National Capital Development Commission Act 1957 (Cth) ("the National Capital Development Commission Act"), s.3. The functions of the Commission are to undertake and carry out planning, development and construction of the City of Canberra as the National Capital of the Commonwealth (sub-s.11(1)). For that purpose, the Commission is empowered to 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 or things for, or incidental to, that purpose (sub-s.11(2)). It 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 (sub-s.11(3)), including such powers in relation to matters affecting, or connected with, the planning, development and construction of the City of Canberra as are expressed to be exercisable by the Commission by, or by regulations under, an Ordinance in force under the Seat of Government (Administration) Act 1910 (Cth) (sub-s.11(4)). The Commission is obliged, by sub-s.12(1), to keep the appropriate Minister informed of the decisions of the Commission with respect to matters of policy in relation to the performance of its functions and provision is made for the resolution of any difference of opinion between the Minister and the Commission as to the policy which should be followed by the Commission.
The Design and Siting Ordinance applies to and in relation to land within the area that is the City Area for the purposes of the City Area Leases Ordinance. Section 23, Division of City, is within that area. Sections 6 and 7 of the Design and Siting Ordinance, so far as material for present purposes, provide -

"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) . . . .

(c) . . . .

(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."

The expression "external design", in relation to a building, is defined to include any matters affecting the appearance of the exterior of the building.

The Ordinance establishes a Committee to be known as the Design and Siting Review Committee (s.10). Where the Commission has refused an application for approval under the Ordinance, or has granted such an approval subject to conditions, the person who lodged the application may, within the prescribed time, lodge an application in writing for a review by the Committee of the Commission's decision (sub-s.13(1)). The Committee is to hear and determine the application (sub-s.13(2)). If the Committee is satisfied that it is necessary to secure the carrying out or observance of the policies of the Commission with respect to the planning and development of the City of Canberra that effect be given to the Commission's decision, it is to dismiss the application. If not so satisfied the Committee is to direct the Commission to grant approval or to vary the conditions subject to which approval was granted (sub-s.13(3)).
The Building Ordinance 1972 (A.C.T.) ("the Building Ordinance") provides for the appointment of a Building Controller and makes detailed provisions with respect to the erection, alteration and demolition of buildings. In particular, the Ordinance provides for the plans and specifications relating to the carrying out of building work for the erection or alteration of a building to be submitted to, and to be considered by, the Building Controller and for the grant, in appropriate circumstances, of building permits for building work. Section 8 of the Design and Siting Ordinance provides, inter alia, that the Building Controller is not to approve the design of a proposed building, or issue a permit in respect of a proposed building, under the Building Ordinance unless proposals with respect to the external design and siting of the proposed building have been approved by the Commission and the building to which the approval or permit relates is to be in accordance with those proposals.

Policy Plan for Civic Centre
A plan for the Civic Centre of Canberra entitled "Canberra City Centre Development 1970-80" was prepared by the Commission in 1970 following the adoption of what was called the Metropolitan Strategy Plan (Y-Plan) in 1969. For reasons into which it is unnecessary to inquire, the Commission carried out a review of its policies for Civic Centre and in February 1982 published for discussion a draft report. The draft report included a draft Policy Plan, comprising broad statements of planning policy together with specific policies on land use, transport and townscape, drawn up to indicate the location of future development in Civic Centre and a draft Development Plan showing how the more significant policies might be implemented by both the public and private sectors. That draft report was circulated to representative community and business groups and to government agencies for comments and suggestions. That procedure was followed by more widespread public consultation.
Following the public consultation programme, the Commission prepared a final report dated February 1984 entitled "Civic Centre Canberra - Policy Plan, Development Plan". Upon the formal adoption of the report by the Commission, the Minister for Territories and Local Government was informed in accordance with s.12 of the National Capital Development Commission Act. The Minister on 15 May 1984 noted the submission forwarded to him. There appears to have been no difference of opinion between the Minister and the Commission as to the matters of policy set out in the report so as to require the machinery provided by sub-ss.12(2) and (3) to be brought into operation.
As much attention was paid during the course of the hearing to that report and, in particular, to the Policy Plan forming part of it, it is desirable that I refer to it in some detail.
The introduction to the report records that the Commission's role is to formulate planning policies and to carry out development which meets the social and economic needs of the resident and business community and that its aim is to have policies and development which are complementary to private enterprise investment. "Policy Plans" are said to comprise broad statements of planning policy as a basis for making decisions about urban development by both the public and the private sectors. "Development Plans" are described as showing development intentions and proposals for works by the Commission as well as possible development by the private sector. The point is made that, in Canberra, land use and development control policies are implemented not by statutory zoning schemes but through the leasehold system. The report continues:

"Because of the leasehold system, it is possible for the Commission, in conjunction with the Department of Territories and Local Government (as the relevant department was then known), to determine criteria for new development and re-development in a manner which is sensitive to the needs of the particular site and the current social and economic climate. This is a more sophisticated and responsive mechanism than that provided by a zoning system and one which is advantageous to the planning authority and to the prospective developer, in that neither are (sic) bound by a rigid set of detailed permissions and prohibitions.

It is increasingly being recognised by planners and administrators that single-use zoning is too inflexible, in the case of city centres where a complex inter-mixture of land uses is the norm. In this report, the Commission has adopted a concept of 'preferred uses' to indicate the pattern of land uses considered most appropriate for Civic."

After reference to the existing land-use pattern in Civic Centre, described as consisting of a number of discrete activity areas e.g. retail, offices, government administration, set within a formal pattern of streets radiating from City Hill, the Policy Plan is set out in Chapter 3. That plan should, according to its terms, be understood "as a composite statement of objectives, land use policies, development standards and performance criteria". The specific policies for Civic Centre are formulated under the three principal headings of -

. Policy Plan (Land Use)

. Policy Plan (Transport)

. Policy Plan (Townscape).

In order, as the Plan says, to obtain a coherent land use structure, Civic Centre is classified into several land-use policy areas. In respect of each land-use category a Land Use Policy Schedule forms part of the Plan. Each schedule specifies the purposes for which a proposal for development or change of use in the relevant land use policy area would normally be supported by the Commission and the purposes for which a proposal for development or change of use would be assessed on individual merit. Where a proposal is made for any purpose not so specified, the Commission, it is said, would normally oppose the development or change of use.
One of the land use policy areas is known as Commercial Office Area 1 and it is within that area that Section 23 is situate. The objectives of the Commission's policy for that area are stated in the Plan to be:

". to group commercial activities in close proximity to retailing facilities

. to ensure that Civic retains its ability to attract commercial office development

. to encourage the consolidation of established tourist-oriented services and facilities in close proximity to the Retail Core."

The preferred uses in that area are stated as offices/professional suites, to be developed predominantly by private enterprise, and hotels, motels, banks, co-operative societies and health centres. The Plan envisages that significant complementary uses, that is uses that would be considered on individual merit, would be indoor recreation facilities, public-sector services and any activity that tends to complement commercial and business functions.

The Plan then contains a section headed Policy Plan (Transport) but as no reliance was placed by the parties on any of the provisions contained therein it is unnecessary to refer to that section.
The third principal heading under which specific policies for Civic Centre are formulated in the Plan is Policy Plan (Townscape). The objectives of Townscape Policy in Civic Centre as stated in the Plan are to -

". achieve harmony of buildings and landscape and, thus, give effect to Griffin's concept of a garden city, which is the foundation of design in Canberra

. within Civic achieve a cohesive arrangement of buildings and spaces which are functionally and architecturally pleasing

.recognise that while Civic is a part of the National Area, it is also the commercial centre of Canberra and should be allowed to express its commercial character."

The Plan records that development controls in Canberra have increasingly favoured the more uniform application of modest building intensities, in a form which allows for the incremental development of sections, and which avoids breaks in the street facade line. It further records that the development of a concentration of building in Civic has been accompanied by the limitation of building heights, the effect of which has been to create a group of buildings of fairly even scale and colour.

The building fabric of Civic Centre is described as being manifested in designs which provide facades in scale with the street and in which colonnades provide continuous weather protection at ground level.
Under the heading "Building Form and Development Intensity" the Plan states that the purpose of having guidelines for development is to achieve the development of any particular site in accordance with the policies of the centre as a whole and market needs. The Plan recognises that wide variations of building form are possible when a full section is developed while limited variation is possible when only one block is developed within a section. It is further stated that 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, it says, is achieved by a process of negotiated approval. The Plan continues:

"Within the main retail and commercial areas, where diversity of form and character is sought, development intensity will be determined on the basis of the individual circumstances of the particular block or section, and considerations such as building height, relationship with other buildings and the environmental quality of adjacent streets and spaces."

The Plan goes on to state that the first and most important policy, in commercial and retail areas of Civic Centre, is that all buildings must abut the front property boundary of the streets in order to achieve "streetscapes" which are said to be of the essence of successful design in urban areas. It also states that, at a detailed level, the functional requirements of the street are to be met by providing for sheltered pedestrian areas on all major frontages. It is, therefore, a requirement that colonnades be provided wherever feasible.
Under the heading "Policies of Building Height and Building Bulk" and the sub-heading "Environment", the Plan states -

". buildings must be limited in height to ensure that main pedestrian areas remain substantially sunlit throughout the day, particularly in the winter months. In some instances, this could result in a maximum building height of two storeys

. in practice, the standard applied is sun penetration to substantial areas of pedestrian streets and spaces between 12 noon and 2 pm on June 22

. to avoid ground level wind turbulence, tall buildings should be sited and designed to ensure that down draft conditions and turbulence do not make pedestrian spaces uncomfortable. Assessment of wind turbulence is a complex issue and the Commission may require model wind tests, prior to approving development proposals."

Under the sub-heading "Urban Design", a mandatory upper limit to building height in Civic is prescribed at RL 617m. It appears from the evidence before me that that height limit would accommodate a building of 13 or 14 storeys. The Plan also states that, where whole sections are comprehensively planned, tall buildings up to a maximum height of RL 617m can be located in a manner which provides harmonious relationships between buildings within the section and with buildings on adjacent sites. It goes on:

". in many City sections, earlier

sub-division has resulted in a number of contiguous small blocks forming the street frontages. Where blocks have frontages of 30m or less re-development will usually result in contiguous buildings, or close to contiguous buildings. In these circumstances, a uniform building height would be the most desirable. A height of 6 storeys results in a satisfactory urban design solution while permitting a scale of development which has proved to be appropriate to the Canberra market

. when block sizes are larger but form only part of the section, then height of permitted development will be assessed in relation to the size of the site, but in particular to the main frontage of the site. Blocks having areas of over 2500 square metres and frontages of 50m or more have the potential to accommodate a building higher than six storeys, linked to contiguous blocks by low-rise building forms. To ensure adequate separation between block developments the low-rise element will be required to occupy 20 metres or more of the block frontage."

Under the sub-heading "Amenity" the Plan provides -

". 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."

Under the heading "Building Design" the Plan provides:

"The existing built form of Civic displays unity and consistency of form, colour and materials. The buildings making up Civic are each different but their scale, colour, materials and form are sufficiently similar to produce an overall development character or context to which future buildings should respond empathetically.

. . . .

The Commission wishes to allow more freedom of design expression in response to the emergence of new styles of architectural design but not at the expense of disregarding the character and massing which has already been gained in the earlier development of Civic.

. . . .

Before approving individual building designs, the Commission will give consideration to the following;

. Streetscape: Buildings in Civic have a major role as framing elements in an established elegant street and avenue context. Buildings should correspond to street lines in the geometry of their floor plans and the design of their facades;

. Relation of Neighbouring Buildings: Where buildings adjoin, it is appropriate to match parapet lines and other details, such as the scale of structural bays and opening in facades. It is also appropriate that the treatment of the ground floor corresponds with the neighbouring buildings;

. Skylines: The tops of buildings should be designed as an important component, with plant rooms and roof edges or parapets designed to complement the design of the building as a whole and to enhance the skyline;

. Light and Shade: The character of Civic reflects Canberra's climate through its buildings. These should be designed to protect their facades from the extremes of solar gain, and to create the opportunity for indented or shaded windows which can endow facades with a sculptured form. Colonnades will continue to be a requirement on active frontages."

In relation to materials and colour, the Plan states that the policy of generally limiting the colour of materials to off-white has served the city well and has resulted in consistency, harmony and an identifiable character. It recognises that, while the policy to be applied in the future will be more liberal, the framework of these overall objectives is to be maintained.

Approval of Redevelopment of Block 3 (now Block 14)
In March 1983 the Country Women's Association of New South Wales commenced negotiations with the Commission and the Department of the Capital Territory concerning a commercial office development on Block 3 which would incorporate premises for the Association. The original proposal lapsed but a revised scheme had been presented to the Commission by November 1983.
In order that any commercial office development could take place on the site it was necessary that a change of use of the land be approved by the Commonwealth and that the existing lease under the Leases (Special Purposes) Ordinance be surrendered and a new lease be granted under the City Area Leases Ordinance. The change of use application was referred to the Commission for the formulation and approval of conditions for the redevelopment of the block. Negotiations on the proposal proceeded between the proposed developer, A.D.C. Properties (Vic.) Pty. Limited ("the third respondent"), and the Commission during the latter part of 1983 and during 1984. Series of preliminary sketch plans were prepared by the developer from time to time incorporating changes suggested as a result of discussions with officers of the Commission so that, by this process, the broad parameters of a development proposal that was likely to meet the needs of the developer and the requirements of the Commission emerged. What was done in relation to Block 3 may be seen as an example of what the Civic Centre Policy Plan refers to as "a process of negotiated approval". It may be noted that all the sketch plans submitted provided for the proposed building to abut the western boundary of the block.
Following those negotiations a submission was prepared by Miss Anne Freeman, an officer of the Commission, dealing with the redevelopment conditions for the block. That submission, which was supported by Mr. P. O'Brien, the section head of the Canberra Central Section of the Town Planning Division of the Commission, was in the following terms -

"BACKGROUND

Block 3 Section 23 City is leased to the Country Women's Association of NSW (Canberra Branch) for the purposes of a CWA clubhouse under the Leases (Special Purposes) Ordinance and has a small clubhouse of some 240 sq. metres on the site.

The lessees wish to redevelop their site to provide for office development, with their own premises relocated on part of the ground floor of the office building.

The block is within Commercial Office Area 1 of the Civic Centre Policy Plan and redevelopment for office purposes is consistent with the Policy Plan.

It is proposed that a strip of land 9.068m wide be excised from the Moore Street frontage of the lease to enable future road widening works to Moore Street which is consistent with the redevelopment of the RSL site on Moore Street.

SUBMISSION

The attached development conditions are consistent with the Commission's Land Use, Townscape and Transportation policies for Civic Centre as set out in the Civic Centre Policy Plan.

The maximum height of the building is six floors and car parking is provided on site at the ratio of 1 space per 100 sq. metres of gross floor area of office space.

A maximum of 400 sq. metres is to be developed for the purposes of CWA meeting rooms and hall.

The site abuts the Town House Motel development but there is minimum impact on the view from the Motel.

MAIN ADVANTAGES

Redevelopment of the site will enable development to occur that is consistent with the nearby Squash Bowl, Town House Motel and Block 5 office development on Section 23.

MAIN COSTS

Nil.

SECONDARY EFFECTS

Redevelopment of the site will strengthen the built form and commercial activity of Civic but may increase long stay parking pressure in west Civic. There is an increased provision of club space for the Country Women's Association.

INTERACTIONS

Nil.

EXTERNAL RELATIONS AND POLICY IMPLICATIONS

The conditions conform to the Civic Centre Policy Plan and no public consultation process is considered necessary."

The submission recommended -

"(1) That Draft Development Plan No.1857/84 for Block 3 Section 23 City be approved.

(2) That the Redevelopment Conditions for Block 3 Section 23 City (Attachment 1) be approved for referral to the Department of Territories and Local Government."

A plan that is, in all material respects, identical with the development plan referred to in the redevelopment conditions is reproduced below -

(DIAGRAM OMITTED REFER TO PAMPHLET)

The Redevelopment Conditions referred to in the recommendations as Attachment 1 were as follows -

"REDEVELOPMENT CONDITIONS

PART BLOCK 3 SECTION 23 CITY

CWA SITE

1. LAND USE

1.1 Site Area

1326 sq. metres (t.b.d.) excluding a strip of land 9.068m wide at the Moore Street frontage of Block 3 which shall be surrendered to the Commonwealth.

1.2 Lease Purpose

The site may be used for any of the following purposes: Offices/professional suites, bank, co-operative society, club, social/community facility, retail, personal services.

The gross floor area for club or social/community facilities shall be no less than 370 sq. metres.

The gross floor area for retail and/or personal services shall not exceed 150 sq. metres.

1.3 Development Intensity

The maximum gross floor area of the building shall not exceed 6780 sq. metres. Gross floor area (GFA) is defined as the sum of the areas of all floors as measured from the external surfaces of the building, excluding only basement areas used solely for car parking and/or plant, rooftop plant rooms and the ground level area of the colonnaded walkway.

The maximum height of the building shall not exceed six (6) storeys. A rooftop plant room may exceed this level provided that any such structure does not exceed 4m in height above the six storey parapet level, and provided that minimum setbacks are maintained as follows:

. Moore Street building line setback: 5 metres . Barry Drive building line setback: 5 metres . Western building line setback: 3 metres

2. BUILDING DESIGN

The building shall abut the northern and eastern lease boundaries. The facade to the western boundary shall be designed to complement the remainder of the building and shall have a strongly modelled elevational treatment.

A continuous colonnaded walkway shall be provided at ground level as shown on NCDC Drawing No.1858/84, with a minimum internal dimension of three (3) metres as measured from the inside of the columns. The level of the walkway shall be coincident with that of the public walkway at all points. The crossfall shall not exceed 4% across the colonnaded walkway and adjoining footpaths.

Low maintenance materials shall be used for all external finishes in the range light buff to off-white. Plantroom, air conditioning equipment and other structures on the roof shall be enclosed in the same materials as the external walls of the building.

A comprehensive scheme for external signs shall be submitted for approval.

3. TRANSPORTATION

Vehicle access shall be provided as shown on NCDC Drawing No.1858/84.

On site car parking shall be provided for minimum of 64 cars.

All garbage areas, storage areas, substations, shall be located and/or screened so as not to be visible from adjacent public streets and adequate provision shall be made for the entry and egress of garbage collection vehicles.

4. SERVICES

The site is serviced at present. Costs for alterations to existing services shall be borne by the lessee."

The submission, including its recommendations, and the redevelopment conditions were considered by Mr J. Gilchrist who was the Director of Town Planning within the Commission. After satisfying himself that the redevelopment conditions were consistent with the Civic Centre Policy Plan to which reference has already been made, Mr Gilchrist signed the document indicating his concurrence in the recommendations.
The submission and recommendations were then passed to Mr G.J. Campbell who was the Chief Planner within the Commission and to whom the power of the Commission to exercise the authority vested in it by s.6 of the Design and Siting Ordinance had been duly delegated. He approved the recommendations on 5 October 1984. On 9 October 1984 the approved redevelopment conditions were forwarded to the Department of Territories and Local Government.
Although it appears to have no significance for present purposes, it may for completeness he stated that on 25 October 1984 Mr G.E. Moseley, who was the Director of District Planning with the Commission but who was at that date acting as Chief Planner, approved Policy and Development Plan 1924/84 recording in a formal way the matters approved by Mr Campbell on 5 October 1984.
Working drawings for the project were lodged by the third respondent with the Department of Territories and Local Government and referred by that department to the Commission for consideration under s.6 of the Design and Siting Ordinance. The working drawings provided for a building abutting the northern, eastern and western boundaries of the site but with a set-back from the southern boundary above the first storey level.
The decision to give design and siting approval to the proposed redevelopment was made on 19 November 1984 by Mr Gilchrist as a duly authorised delegate of the Commission. It is that decision which is the subject of the present proceeding. The decision was made upon a submission prepared by Miss Freeman and concurred in by Mr O'Brien. It recommended that the working drawings attached to it relating to the proposed building be approved. Under the heading "Project Assessment" the submission read -

"CA have supported the drawings subject to submission of materials and consideration of the use of varying materials on the elevations.

The levels have been cleared by Hughes Trueman Ludlow. Additional levels marked on plan give RL requirements at each column. Additional levels received 16.11.84 on amended ground floor level ensure uniform 3.5% max. crossfall to kerb.

The plans are in accordance with the development conditions and the western elevation revised so as to leave a future option to revise site boundaries for the Town House Motel site."

The initials "CA" refer, I understand, to the Chief Architect's Division of the Commission. Hughes Trueman Ludlow were a firm of engineering consultants employed by the Commission to examine the working drawings. The reference to the western elevation having been revised relates to the deletion from that elevation of windows which had been proposed at its northern end on storeys 2-6 inclusive, that part of the western elevation adjoining public land and not the Town House Motel site.

In addition to approving the submission made to him, Mr Gilchrist signed each of the working drawings as having been approved, each being marked, however, with a notation that the approval was subject to samples of all external materials being submitted to the Commission for approval. That condition was subsequently fulfilled.
In the issue of the "Canberra Times" newspaper published on Saturday 1 December 1984 an article appeared stating that the site of the Country Women's Association's Canberra meeting rooms at the corner of Moore Street and Barry Drive was to be redeveloped "early next year" to provide a six-storey office building. The article, which was accompanied by a picture of the then existing building on the land, further stated that the Commission had given design and siting approval and that construction was scheduled to begin in February 1985 and to be completed within 12 months. Reference was also made to proposals to redevelop the Polish Ex-servicemen's Club site adjoining the CWA site.

In May 1985 the Building Controller, acting under the Building Ordinance, approved the building plans and construction commenced on the site at the end of that month.
A further article relating to the development of Block 14 appeared in the "Canberra Times" newspaper published on 31 May 1985. That article referred to the demolition "yesterday" of the CWA meeting rooms to clear the site for the construction of a six-storey office block for the A.C.T. regional office of the Australian Tax Office.
On 6 June 1985 the Commission approved amendments to the plans providing for a third basement, amended vehicular access from Moore Street and amended plantroom details.
On 17 June 1985 a lease of Block 14 was granted by the Commonwealth to the Country Women's Association of New South Wales under the City Area Leases Ordinance for a term of 99 years commencing on 10 December 1984. Under the lease the lessee is required within twelve months from the date of the commencement of the lease or within such further time as may be approved to commence to erect a building and on site parking on the land in accordance with plans and specifications prepared by the lessee and previously submitted to and approved by the Commonwealth in writing. The lease provides, inter alia, that the maximum gross floor area of the building is not to exceed 6780 square metres and its maximum height is not to exceed six storeys exclusive of rooftop plant rooms. The lease was, with the consent of the relevant Minister, transferred to the third respondent on 17 June 1985 and to Serton Pty. Limited ("the second respondent") on 28 June 1985.
The transfer of the lease to the second respondent was made pursuant to an agreement made on 28 June 1985 between the third respondent and Hambro Australia Limited, the parent company of the second respondent. By a further agreement made on the same day the third respondent was appointed project co-ordinator in respect of the redevelopment. Yet another agreement of the same date between Hambro Australia Limited, the third respondent and Australian Development Corporation Limited referred to negotiations which were proceeding for the grant to the Commonwealth of a sub-lease of the building, other than the area to be occupied by the Country Women's Association of New South Wales, and provided that, in the event of the Commonwealth not executing an agreement to sub-lease the building within a specified time, the third respondent could be required to acquire from Hambro Australia Limited the whole of the issued shares in the second respondent.
The applicant's solicitors addressed to the Commission a letter dated 28 June 1985 reading as follows -

"We act for Idonz Pty. Limited, the lessee of the Town House Motel. Our client has learned of the development presently under construction of the adjoining Block 3 Section 23 City (formerly the C.W.A. site) and we are instructed to inquire:

1. Whether the Commission has approved in writing the external design and siting of a building for block 3.

2. If approval has been given, what was the date of approval?

3. If approval has been given, is it subject to any, and if so what conditions?

4. If approval has been given, what, if any, consideration was given to matters that arise hereunder as the client has been told by the builder, Leighton Contractors Pty. Limited, that the building to be erected comprises a 3-storey underground carpark and a 6-storey office block to be built on the boundary line of Block 3 with our client's property with a totally blank wall on that boundary which will be apparently off-white in colour.

Matters of concern are:

(a)(i) Possible disruption of our client's Town House foundations due to very deep and very close excavation.

(ii) The need for an existing request by the builder to drill into our client's land for temporary shoring.

(b) Intrusion of working activities by the builder into our client's site, including scaffolding.

(c) The uncomfortable glare that can be anticipated into the north-easterly windows of the Town House Motel created by an unrelieved off-white wall six storeys in height on the boundary.

(d) Heat reflection that can be anticipated by the boundary wall of Block 3 during summertime creating the need for extra cooling capacity in our client's building.

(e) Whether any model wind tests were conducted and, if so, when and with what result regarding wind turbulence due to the tunnelling effect of the wall under winds, particularly prevailing north-westerly winds, including down-draft and, if any tests were conducted, what, if any assessment was made of wind conditions and turbulence? Did the tests (if carried out) include our client's neighbouring building and/or the building with the extension of a further three floors? Who carried out the tests?

(f) Has any and if so what consideration has

(sic) been given to a harmonious relationship between the blank wall of the building on Block 3 with our client's building on the adjacent block?

(g) Has any and if so what consideration been given to the design character of our client's adjacent building with elements of facade that conform to the scale of the building?

(h) Has any and if so what consideration been given to the likely impact of the proposed development on our client adjacent owner's use in terms of:

(i) wind

(ii) sun

(iii) light

(iv) sound

(v) smell

(vi) dust?

Our clients first knew of the development proposal for Block 3 when they read about it in the Canberra Times on the 31st May. They have little idea of what is proposed. In these circumstances they are not in a position to form any meaningful view of the proposals for Block 3 nor as to how their own property may be affected.

We therefore request a copy of the approved plans and specifications of the Block 3 proposals, including any conditions imposed, together with answers to the queries set out above."

The reply, dated 26 July 1985, was in the following terms:-

"Thank you for your letter of 28 June 1985 concerning the proposed redevelopment of Block 3 Section 23 City.

Responses to your queries are as follows:

1. The Commission granted approval under the Buildings (Design and Siting) Ordinance 1964 to the proposed redevelopment of Block 3, Section 23 City on 19 November 1984. The approval was for a 6-storey office building with two basement levels, wholly contained within the lease and was subject to samples of all external materials being submitted for approval.

2. The plans approved on 19 November 1984 were in accordance with the Commission's development conditions for the above site and with the Commission's Policy Plan for Civic Centre.

3. The developers of the site informed the Commission in December 1984 that the specific requirements for building occupation meant that an additional basement would be required. After negotiation regarding the traffic and safety aspects of providing an additional basement the relevant working drawing amendments were approved on 6 June 1985.

4. Your letter requested information as to what consideration was given to the impact on the amenity of the Town House Motel.

Issues of concern as noted in your letter are the presence of a 'totally blank off-white wall' on the western boundary of the site, possible disruption to the Town House Motel foundations, the need to utilize a part of the Town House Motel site during the construction phase and detailed questions of the impact on the amenity of the Town House Motel development.

The blank wall at the western boundary of the site was approved by the Commission as a direct result of the perceived need to ensure that there will be no future constraint placed on any redevelopment of your client's land. It was felt that the inclusion of windows on this facade at the boundary would have the effect of requiring any new building on your client's land to be set back significantly from this boundary. This decision is consistent with previous approvals of commercial developments at a common boundary and protects the development rights of adjoining lessees. Windows on or near this boundary may also have had the effect of reducing the amenity of your client's land through overlooking from the new building.

The design of the western wall is consistent with the Commission's development conditions for this site which state that:

'The facade to the western boundary shall be designed to complement the remainder of the building and shall have a strongly modelled elevational treatment'.

The design proposes a modelled treatment using two harmonising colours of applied finish, emphasising the structure of the building and complementing the structural modelling of the remainder of the building. The colours proposed are "Tallow" P-42-1 Granopearl and "Buff" P-42-5 Granopearl and these are currently under consideration for design and siting approval. Samples of these materials and details of the proposed design may be inspected at the Commission offices should your client wish to do so.

The second major matter of concern raised, i.e. the possible disruption of your client's building foundations due to very deep and very close excavation and the need for the builder to drill into your client's land for temporary shoring have been referred to the Building Controller, Department of Territories for urgent consideration. I understand that the lessees of Block 3 Section 23 City are currently considering alternative methods of excavation and this matter will need to be resolved between your client, the lessees of Block 3 Section 23 City and the Building Controller of the Department of Territories.

Your concern that scaffolding may intrude into your client's site has also been referred to the Department of Territories. I understand that the preferred finish of the western wall, "Granopearl" cannot at this stage be applied without some temporary intrusion into your client's airspace. The Commission is concerned that the western wall is finished in a material that is aesthetically pleasing but will await advice from the lessee regarding possible alternative methods of finishing the wall to the same standard and design quality as the preferred material.

Your third major query concerns the amenity of the Town House Motel development as it stands and in the future.

The Civic Centre Canberra Policy Plan Development Plan (February 1984) refers to the amenity of neighbouring sites on page 42 and states that:

'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'.

Section 23 City is within land use policy area 'Commercial Office Area 1' under the Civic Centre Policy Plan. In considering the redevelopment of the CWA site it was decided that it would not be reasonable to restrict building up to the boundaries of the site, since this would be a normal expectation of a lessee in a commercial area.

Nevertheless in agreeing to the new building on the CWA site, it was noted that:

. the Town House Motel is angled at 45 degrees on its block and the closest point of the motel building to the boundary with the CWA site is about 5 metres from the boundary at the external walls (north-eastern corner);

. because of the position of the motel building on its block the rooms are generally oriented either north-west or south-east rather than directly facing the CWA site boundary;

. there will be minor overshadowing of the motel by the new building on the CWA site but not after noon on any day;

. due to the location and orientation of the motel building, natural lighting to the bedrooms should continue to be adequate;

. the provision of a blank wall to the new building on the boundary will ensure that the amenity of the motel is not affected through overlooking or noise transmission.

The new building on the CWA site conforms to all the relevant policies of the Civic Centre Policy Plan and the Commission's Specific Development Conditions for the site.

The approved plans for Block 3 Section 23 City may be inspected at the Commission's offices at 220 Northbourne Avenue Braddon as requested in your letter and a copy of the Commission's specific development conditions for that block is enclosed.

The project officer for this work is Ms Anne Freeman (468728) should your client wish to inspect the above documents or raise further issues in connection with this matter."

The Issues

The present proceeding was commenced on 10 September 1985 by the filing of an application naming the Commission as the only respondent. The applicant applied by motion to Fox J. on 17 September 1985 for an order extending the time within which the application might be brought and his Honour extended that time up to and including 10 September 1985. His Honour also directed that notice of the application be given to Serton Pty. Limited, A.D.C. Properties (Vic.) Pty. Limited and Leighton Contractors Pty. Limited. Subsequently, Serton Pty. Limited and A.D.C. Properties (Vic.) Pty. Limited applied to be joined as parties and orders were made joining them as second and third respondents respectively. An amended application was filed by the applicant on 24 September 1985.
When the substantive application came on for hearing on 14 October 1985 the second and third respondents sought to bring on for hearing at short notice a motion for an order under Order 35, rule 7(2) of the Federal Court Rules setting aside the order made by Fox J. on 17 September 1985 extending the time within which the proceeding might be commenced. The ground of the application was that the order had been made in the absence of the second and third respondents.
After hearing argument I declined to entertain the motion at that stage and directed that the hearing of the substantive application should proceed. In reaching that conclusion I had regard to the circumstance that the issues raised by the motion could only be resolved after an examination of much of the material that would be relevant to the substantive issues in the matter and that to embark on the hearing of the motion would only serve to delay the resolution of those issues. I also had regard to the submission put by counsel for the applicant that the motion should have been brought before Fox J. - see Farrell v. Delaney (1952) 52 SR (N.S.W.) 236 at p 238.
It is also convenient to mention at this stage that during the first day of the hearing the applicant sought, but was refused, leave to amend the proceeding so as to seek orders of review in respect of the decision of Mr Campbell made on 5 October 1985 and the decision of Mr Moseley made on 25 October 1985 to both of which reference has already been made. The applicant then commenced a separate proceeding seeking orders of review in respect of those decisions and for declaratory and injunctive relief under the general law. No application was made for an order extending the time within which that proceeding, in so far as it was brought under the Judicial Review Act, might be commenced. I refused an application to have that proceeding heard contemporaneously with the application then before the Court. Both applications were later renewed but were again rejected.
An application was also made to amend further the amended application before the Court so as to challenge the decision made on 19 November 1984 under the general law and to seek relief by way of declaratory order, injunctive relief and damages. I rejected this application on the ground that by the proposed amended application the applicant sought to raise substantially different issues, factual and legal, from those raised in the amended application then before the Court and that it was not appropriate that those issues be raised for the first time at such a late stage. I did, however, allow an amendment of the amended application to add further grounds, based on the applicant's assertions as to the effect of the evidence adduced in the proceeding, upon which it relied.
The applicant submitted that a breach of the rules of natural justice had occurred in connection with the making of the decision of 19 November 1984 under par.6(1)(a) of the Design and Siting Ordinance (see Judicial Review Act, par.5(1)(a)). It was submitted that the Commission, being bound as a matter of law to do so, had failed, before exercising that power, to give notice to the applicant of the matter which it had under consideration and to afford it an opportunity to make submissions thereon.
Secondly, it was submitted by the applicant that procedures that were required by law to be observed in connexion with the making of the decision were not observed (see Judicial Review Act, par.5(1)(b)). The procedures required by law to be observed were, according to the applicant's submission, to be found in the administrative procedures approved under the Environment Protection (Impact of Proposals) Act 1974 (Cth) ("the Environment Protection Act").
Thirdly, it was submitted that the Commission had failed to carry out its statutory function under the Design and Siting Ordinance in that there had been a failure, in making the decision of 19 November 1984, to take into account the provisions contained in the Civic Centre Policy Plan. Alternatively it was submitted that the decision-maker had failed to take into account particular policy considerations made relevant by the Civic Centre Policy Plan and had taken into account irrelevant matters (see Judicial Review Act, par.5(1)(e) read with par.5(2)(a) and (b)).
The respondents joined issue with the applicant upon each of the above submissions and contended further that the applicant lacked standing to bring the proceeding as it is not properly described as a person aggrieved within the meaning of that expression in s.5 of the Judicial Review Act. It was also submitted on behalf of the respondents that, even if the Court should be of opinion that the applicant had established a ground for relief in relation to the decision of 19 November 1984, the Court should, in the exercise of the wide discretion vested in it by the Judicial Review Act, decline to afford the applicant such relief.
Although logically the submission that the applicant is not a person aggrieved should be the first point considered, I propose to follow a different course and consider first the substantive issues.

Natural Justice

It is common ground that the Commission took no steps to give notice to the applicant of the application of design and siting approval of the building proposed to be constructed on Block 14 and did not afford the applicant an opportunity to make submissions in relation thereto. The issue is whether the Commission was, as a matter of law, bound to do so.
What has been said by the High Court on the subject makes clear that the question whether the Commission is under a duty to observe the rules of natural justice in relation to an application for design and siting approval is to be resolved as a matter of the proper construction of the legislative provisions, those provisions being construed against the background of the relevant common law principles: see Twist v. Randwick Municipal Council (1976) 136 CLR 106, Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, The Queen v. MacKellar; Ex parte Ratu (1977) 137 CLR 461, Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, Bread Manufacturers for New South Wales v. Evans (1981) 38 ALR 93 and F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342. As Barwick C.J. said in Twist v. Randwick Municipal Council, supra:

"The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice."

It was accepted by counsel for the applicant that there is no provision in the National Capital Development Commission Act or the Design and Siting Ordinance or elsewhere expressly requiring the Commission, before exercising the power conferred upon it by par.6(1)(a) of the Design and Siting Ordinance, to give notice to any person of an application made to it thereunder or to afford any person an opportunity to make submissions to it upon the application. The applicant's contention is based solely upon the general rule of law which finds in the nature of some statutory powers a sufficient ground for inferring that the powers are to be exercised in accordance with the requirements of natural justice.
The argument proceeded on the basis, accepted by all parties, that the legislative provisions, on their proper construction, obliged the Commission to act fairly with respect to the person seeking approval under par.6(1)(a) of the Design and Siting Ordinance. Such an applicant is entitled, by virtue of par.6(2) of the Ordinance, to have his proposal approved unless the Commission is satisfied that it is necessary to refuse to give approval "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". It was not asserted by any party that a clear indication of legislative intention to the contrary is to be found in the provisions of the Design and Siting Ordinance which provide a dissatisfied applicant with a right of appeal to the Design and Siting Review Committee.
The issue between the applicant and the respondents is whether the legislative provisions, on their proper construction, extend the protection which they afford to the person seeking an approval under par.6(1)(a) of the Ordinance to other persons and, if so, to which other persons or classes of persons.
The duty which the law imposes, unless displaced by a clear indication of legislative intention to be found in express words or by necessary implication, is that a statutory authority having power to affect a person's rights, privileges, interests or legitimate expectations is bound to afford the person whose person or property is the subject of the exercise of the power a fair opportunity of presenting his case before the power is exercised adversely to him. The duty which is thus imposed on the Commission in relation to the exercise of its power under par.6(1)(a) of the Design and Siting Ordinance clearly extends to affording to the person applying for approval under that provision a fair opportunity to present his case. This will be so because such a person has a right, privilege or interest, or a legitimate expectation of a benefit arising from the exercise of the power under the relevant legislative provisions, of which he will be deprived, or which will be limited, qualified or restricted, if a decision adverse to him is made by the Commission.
The position of such a person is to be contrasted with the position of the applicant in the present proceeding. The applicant is not, so it seems to me, properly described as a person who was entitled to any right, privilege or interest, or a legitimate expectation of a benefit under the relevant legislative provisions, of which it has been deprived, or which has been affected in any relevant sense, by the decision of the Commission taken on 19 November 1984 to give design and siting approval to the proposed development on Block 14.
What the decision of the Commission did was to remove one obstacle in the path of the lessee of Block 14 in carrying out its intention of erecting a commercial office building on that land. Having overcome that obstacle, the lessee required approval of the plans and specifications by the Building Controller under the Building Ordinance and the grant thereunder of a building permit allowing the work to proceed. In my view, the decision of the Commission did not, and does not, operate in law to affect prejudicially any right or interest which the applicant enjoyed. Whatever rights or interests it had, immediately before the decision was made, as the lessee of Block 13 remained, and remain, unaffected in law by the making of the decision. It is not the decision of the Commission but the action taken by or on behalf of the lessee of Block 14 consequent upon the approval given under the Building Ordinance that could, in law, affect the applicant's rights or interests. Those rights and interests may be infringed by the existence of the building when constructed on Block 14 or by the methods used in the course of construction work and, if so, the law will not be slow to protect those rights and interests. But those circumstances, to my mind, provide no sound basis for concluding that the grant by the Commission of design and siting approval to the proposed development prejudicially affected any right, privilege or interest, or any legitimate expectation of a benefit under the legislation, which the applicant enjoyed so as to impose upon the Commission an obligation, before exercising its statutory power, to give the applicant notice of the application before it and to afford it an opportunity to make submissions thereon.
If a view contrary to that which I have expressed were thought to be appropriate, detailed attention would need to be given to the identification of the persons to whom, or the classes of persons to which, the Commission is bound to afford an opportunity to make submissions in respect of an application for design and siting approval which it has under consideration. Although counsel for the applicant submitted that the implied obligation to afford natural justice required that all those whose interests (including property interests) would or might, be affected by an impending decision be given notice thereof and an opportunity to contribute to the decision-making process by putting submissions, he contended that it was unnecessary to do more in the present case than to conclude that the applicant as the lessee of an adjoining block fell within the class so affected. I do not think, however, that the matter can be approached in that way. If an obligation to afford natural justice is to be implied into the relevant statutory provisions, the circumstances in which the obligation arises, as distinct from what is necessary in the circumstances of a particular case to satisfy the obligation, must be capable of being stated with reasonable precision. Unless this can be done the repository of the statutory power can only be left in a state of uncertainty. A recognition of this circumstance tends, in my view, to support the conclusion that the ambit of the implied obligation extends only to those whose rights, privileges, interests or legitimate expectations are affected in a much more direct way than those whom the applicant's submission would encompass.
The only authority relied upon by counsel for the applicant as directly supporting the broad proposition for which he was contending was the decision of the Supreme Court of Tasmania (Burbury C.J.) in R. v. Commissioner for Town and Country Planning; Ex parte Scott (1970) 24 LGRA 108. The researches of all counsel failed to discover any other reported case in which the question has been discussed whether the duty which the law imposes in a case such as this extends to a person other than the person whose person or property is the subject of the exercise of the relevant statutory power.
In R. v. Commissioner for Town and Country Planning; Ex parte Scott (supra) the Court made absolute an order nisi for a writ of certiorari in relation to a determination made by the Commissioner for Town and Country Planning under sub-s.734(15) of the Local Government Act 1962 (Tas.). By that determination the Commissioner allowed an appeal by Kemp and Denning Pty. Limited against a decision of the Corporation of the City of Hobart refusing that company permission to change the use of certain land owned by it for the purpose of the establishment thereon of an industrial undertaking consisting of a timbermill and allied operations. At the hearing of the appeal the Corporation of the City of Hobart, the company and a local progress association were represented and heard, but no opportunity was afforded to landowners in the immediate vicinity of the land owned by the company to take part in the proceedings. The order nisi was made absolute because the Commissioner was held to be under an implied duty to give notice of the hearing of the appeal to persons who appeared (or ought to have appeared) to him to be persons who might be injuriously affected by the upholding of the appeal and to give each of them an effective opportunity to present his case.
The statute expressly provided that a person injuriously affected by a determination by a municipality giving approval to an alteration to the use of land might appeal to the Commissioner. In the case of such an appeal the person directly affected, that is to say the owner who had been granted permission, was to be made a respondent to the appeal. The statute provided for public notification of the determination by the municipality so that persons indirectly injuriously affected (such as neighbouring owners) were given adequate opportunity to challenge a determination adverse to their interests. However, in the case of an appeal by a person injuriously affected by a refusal by a municipality of such permission, the statute made no provision for public notification of the determination or for notice to individual residents or others who might be indirectly injuriously affected if the Commissioner, on appeal, were to set aside the refusal and permit the change of use. Nor did the statute contain any provision requiring the public notification of an appeal. It did, however, provide that, in the case of any appeal, a person who might be injuriously affected might be made a party to the appeal as an appellant or a respondent. This provision was considered to be illusory unless the person injuriously affected was made aware that an appeal was pending.
Burbury C.J. stated his conclusion at p.136 thus:

"It follows from my interpretation of s.734 as applied to the case where an owner appeals to the Commissioner against a local authority's refusal of permission to change the use of his land that the statutory procedure prescribed by the section is insufficient to achieve justice to individual home owners residing in the vicinity of the land the subject of the appeal and whose properties may be adversely affected by the upholding of the appeal. It is therefore necessary for the Court to supply the deficiencies in the procedure by reading into the section an implied obligation on the Commissioner to notify those persons of the time and place of the hearing and to give them a full opportunity to present their individual cases against the upholding of the appeal by submitting argument, evidentiary material, and cross-examining witnesses called by other parties."

It is clear that the decision in that case depended upon its own particular facts and the statutory provisions that were relevant to the resolution of the issue which then arose for decision. Those provisions bear no resemblance to those in question in this case and the decision of the Supreme Court of Tasmania is clearly distinguishable. In my view, it provides no support for the applicant's contention.
Before leaving this aspect of the case I should, for completeness, mention that counsel for the applicant did not suggest - indeed, expressly disclaimed - that the evidence disclosed any circumstances peculiar to the applicant which would support an assertion that it had a "legitimate" or "reasonable" or "settled" expectation that no design and siting approval would be given in relation to Block 14 without it being afforded an opportunity of making submissions in relation to the granting of such approval.
In the result, I reject the applicant's contention that the Commission was bound, before granting desing and siting approval in respect of the proposed development on Block 14, to give notice to the applicant of the application and to afford it an opportunity to make submissions theron.

Environment Protection
I turn now to the submission that the Commission, in connexion with the making of the decision of 19 November 1984, was required by law to observe the procedures approved under the Environment Protection Act and that it failed to observe such procedures.
That Act is described in its long title as an Act to make provision for protection of the environment in relation to projects and decisions of, or under the control of, the Australian Government, and for related purposes. Section 5 provides:

"5. (1) The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to -

(a) the formulation of proposals;

(b) the carrying out of works and other projects;

(c) the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States);

(d) the making of, or the participation in the making of, decisions and recommendations; and

(e) the incurring of expenditure,

by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person.

(2) The matters referred to in sub-section (1) extend to matters of those kinds arising in relation to direct financial assistance granted, or proposed to be granted, to the States."

By virtue of sub-s.6(1), the Governor-General may, from time to time, by order approve, and approve variations of, administrative procedures for the purpose of achieving the object of the Act, being procedures which are consistent with relevant laws, as affected by regulations made under the Act. Sub-section 6(2) lists a number of topics or matters for which the approved procedures may provide. They include the supplying to the Minister administering the Act of information for the purpose of consideration, by him or on his behalf, of the necessity for environmental impact statements (par.6(2) (a)) and authorising the Minister to direct the preparation or obtaining, and the submission to the Minister, of statements to be known as environmental impact statements (par.6(2) (b)).
Section 9 provides:

"9. Without prejudice to any right, power or duty of any authority of Australia, apart from this Act, to take into account matters relating to the environment in the exercise of any power or function, the regulations may -

(a) make provision for or in relation to requiring or permitting a prescribed authority of Australia to take into account, either generally or in accordance with the regulations, matters affecting the environment in the taking of any action or the making of any decision or recommendation; and

(b) prescribing matters necessary or convenient to be prescribed as incidental to provision so made, including matters relating to procedures and times,

and regulations so made have effect notwithstanding any other law."

On 20 June 1975 an order was made under sub-s.6(1) of the Act approving administrative procedures thereunder (see Australian Government Gazette of 24 June 1975).
Paragraph 1.2.1 of those procedures provides:

"1.2.1. Subject to these procedures, the action Minister, or a person on behalf of the action Minister, shall, as soon as possible after a proposed action has been first formulated, designate a person or Department as the proponent of the proposed action and shall ensure that the Department is thereupon informed of the proposed action and of the name and address of the person or Department so designated."

The expression "the action Minister" is defined in par.1.1, in relation to a proposed action, to mean the Minister of State responsible for the proposed action. The reference to "the Department" where secondly occurring is a reference to the Department of State administered by the Minister administering the Act. Paragraph 1.1 also provides that, in the procedures, unless the contrary intention appears, "proposed action" means a matter referred to in any of the paragraphs of s.5 of the Act. "Responsible authority" is defined to mean, in relation to a proposed action, the authority of Australia by whom, or on whose behalf, the proposed action is to be executed.

The remainder of par.1, par.2 and pars.3.1.1 and 3.1.2 provide:

"1.2.2. In designating the proponent of a proposed action under paragraph 1.2.1, the action Minister, or a person on behalf of the action Minister, shall have regard to the general principle that, as far as convenient, the person or Department responsible for the execution of the proposed action should be designated as the proponent.

1.2.3 In realtion to a proposed action to be executed by, or on behalf of, an authority of Australia, the responsible authority shall be the proponent of the proposed action and shall ensure that the Department is, as soon as possible after the proposed action has been first formulated, informed of the proposed action.

1.3. Before a proposed action is executed, the proponent shall do all things necessary to ensure that these procedures are complied with in relation to the proposed action.

Supplying of Information to the Minister

2.1. The proponent shall, as soon as possible after a proposed action has been first formulated, supply to the Minister, through the Department, such information as is required by these procedures, or is otherwise necessary, for the purpose of consideration, by him or on his behalf, of the necessity for an environmental impact statement in relation to the proposed action.

2.2. For the purpose of paragraph 2.1., the information required by these procedures shall, to the extent appropriate in the circumstances of the case, be information -

Mr Campbell had held the office of Chief Planner since August 1978. He gave evidence that it was his practice, upon receiving a submission recommending the approval of redevelopment conditions, to call in the staff concerned with the matter and discuss the submission with them. He could not recall whether, on this particular occasion, he called in Miss Freeman or Mr O'Brien or both of them. A discussion did, however, take place. He went through the conditions and assessed them against the Civic Centre Policy Plan. He satisfied himself that the proposed redevelopment conditions were consistent with the policy statements published in the Policy Plan on the topics of land use, transport and townscape. He also satisfied himself that the conditions proposed were consistent with what had been approved for other buildings erected or to be erected on blocks in Section 23 having frontages to Moore Street so that the proposed development would lead to a number of buildings of similar height and having a close relationship one to the other. Further, he satisfied himself that the proposals were consistent with the Commissioner's policy on car parking - a policy to be found elsewhere than in the Civic Centre Policy Plan. Mr Campbell also said that he was conscious that the design of a six-storey building on Block 14 would have a character in terms of design quite different from that of the Town House Motel. He was, however, also conscious that approval had been given for a commercial office building to be erected on the block to the south-west of the Town House Motel and that that building was of comparable height to the proposed building on Block 14 although set back some distance from the boundary between its site and that of the motel. He added:

"I was therefore satisfied that if the section proceeded, that is all blocks in the section proceeded through redevelopment, that (sic) we would get a satisfactory solution in that the buildings would have met the policies in here (referring to the Policy Plan) and that the Town House Motel will be framed with a building to the south-west and a building to the north-east that were similar in scale."

The witness said he also sought an assurance that the effects of sunlight and shadow on the motel had been considered and was assured that the impact was such that it could be regarded as satisfactory for a building in a commercial area. He had no recollection of having asked about the effect of the proposed development on wind turbulence. He said that in his experience the development of a number of six-storey buildings in a section would not lead to major wind effects. He directed attention to the fact that the reference in the Policy Plan to the effect of buildings on wind turbulence is expressed in terms of tall buildings, not six-storey buildings. In this context, Mr Campbell regarded a tall building as one not less than ten storeys in height. He stated that there was no feature of the proposed development on Block 14 that suggested to him that specific consideration should be given to wind conditions.

The question of the western facade of any building to be erected on Block 14 was also discussed. Mr Campbell said:

"The question of that facade which was discussed was that that building can stand independently on that western boundary, or over time there may be redevelopment of that townhouse block, so that that particular boundary of the site and the wall that is on it has to be designed so that initially it could be observed and later other buildings could be placed against it."

Having satisfied himself on these matters Mr Campbell approved the redevelopment conditions.

When the application for design and siting approval was referred to the Commission with its accompanying working drawings, Mr O'Brien satisfied himself that the drawings met the redevelopment conditions. The application was then referred to Mr Gilchrist who made the decision of 19 November 1984 approving the application and the working drawings. He said in evidence that, having received the submission recommending design and siting approval to the proposed development on Block 14 together with the working drawings in respect of the proposal, he looked at the redevelopment conditions which had been approved on 5 October 1984 and which he had previously examined. He then called in Mr O'Brien and Miss Freeman and went through the project assessment sheet with them. He satisfied himself that the assessment sheet was correct and that the drawings were in accordance with the redevelopment conditions. He agreed that he did not take into account anything in relation to the effect which the proposed building might have on wind turbulence in the surrounding area. He said that, from his experience, he would only have been concerned about wind turbulence if the building had been of 14 or 15 storeys.
In cross-examination Mr Gilchrist said that, in dealing with the application for design and siting approval, his concern was to see that the working drawings were consistent with the redevelopment conditions. He explained that the requirements of the Civic Centre Policy Plan had been taken into account in the preparation of those conditions which, as I have said, followed the discussions which took place between the developer and officers of the Commission during the latter part of 1983 and during 1984.
In support of the contention that Mr Gilchrist had abrogated his decision-making responsibility, the applicant submitted that, in exercising the discretion conferred by par.6(1)(a) of the Design and Siting Ordinance, it was necessary that the design and siting of the proposed building be considered anew, regardless of the previous history, taking into account the matters referred to in the Civic Centre Policy Plan and any redevelopment conditions that had been determined in respect of the site. It was submitted that the decision-maker, Mr Gilchrist, did not ask himself, as he should have done, whether the design of the proposed building was appropriate and whether it was sited in an appropriate place on the site. It was said that he confined his consideration of the matter to the question whether the proposal was consistent with the redevelopment conditions. In particular, it was said that he did not consider the effect of the proposed building on wind turbulence or the relationship of the proposed building to the Town House Motel site. It was further submitted that the decision-making process had miscarried because Mr Gilchrist had not had drawn to his attention, by way of a written or oral report of his subordiante officers who had been concerned with the matter, all material and objectively relevant considerations.
I am unable to accept that submission. The discretionary power arising under par.6(1)(a) of the Design and Siting Ordinance is vested in the Commission and it cannot have been the intention of the legislature that the Commission should itself conduct the necessary inquiries to satisfy itself, in terms of sub-s.6(2) of the Ordinance, whether approval should be granted or refused. It might act through its officers. Its officers, having made those inquiries, might then make recommendations to the Commission and it would be open to the Commission to act upon such recommendations and reach a decision without having examined and assessed for itself the material which was before its officers. But in so acting the Commission would be taken to have adopted any errors made by its officers. If what its officers did was contrary to the legal principles applicable, the decision of the Commission would be equally tainted.
In the circumstances of this case Mr Gilchrist was entitled to exercise the powers of the Commission. But the circumstance that he was acting as a delegate of the Commission does not, in my view, require that he be placed in any different position from that occupied by the Commission. It was, so it seems to me, open to him to act upon the material put before him by the officers of the Commission more directly involved than he in assessing the proposed development against the policies enshrined in the Civic Centre Policy Plan and translated, so far as material, into the redevelopment conditions. It is also not unimportant to recall that Mr Gilchrist was familiar with the Civic Centre Policy Plan and had himself been involved in the process of approving the development conditions.
Upon the evidence before me I am satisfied that Mr Gilchrist exercised an independent discretion in the matter and formed the view, in terms of sub-s.6(2) of the Ordinance, that it was not necessary to refuse approval to the design and siting application 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.
I turn, then, to the question whether in the decision-making process there was a failure to take into account any relevant consideration. As already mentioned, the matters relied upon by the applicant may be summarised as a failure to take into account the likely impact of the proposed development on the environmental amenity of the area and the need for an harmonious relationship between buildings on adjacent sites including a respect for the desing character of adjacent buildings and a respect for the uses of neighbouring buildings in terms, inter alia, of sun and wind.
The submissions put on behalf of the applicant on this aspect of the matter concentrated attention on the consideration given to the application for design and siting approval by Mr O'Brien and Mr Gilchrist divorced from the previous history. But the sufficiency of what was done at that stage must be seen against the background that, during the lengthy period of negotiation between the developer and the Commission prior to the redevelopment conditions being drafted and approved and in the consideration by the various officers concerned of the draft conditions, the Commission's officers had satisfied themselves that the proposed development as shown on the final set of preliminary sketch plans was consistent with the requirements of the Civic Centre Policy Plan.
The officers of the Commission who dealt with the matter were very familiar with the Policy Plan. Their concern was to ensure that approval was given only if there were consistency between the proposed development and the Commission's policies with respect to the planning and development of the city. I am satisfied, on the evidence, that the officers concerned gave consideration to the relationship between the proposed development and the Town House Motel and concluded that that relationship would be satisfactory. Particular attention was given to the western facade of the proposed building. I have already referred to the evidence in that regard and the redevelopment condition relating thereto and I need not repeat it.
There is evidence that, in the course of considering certain of the preliminary sketch plans made available during the negotiations with the developer, the view was expressed by certain officers of the Commission that it was desirable, in order better to integrate the proposed development with the Town House Motel, that the western facade be designed so as to provide a set back from the boundary over part of its length and for part of the height of the building. This proposal was suggested by Mr Johnston, a town planner employed by the Commission, Miss Freeman and an identified officer employed in the Chief Architect's Division. An indicative drawing was prepared and this was seen by Mr O'Brien. The proposal was, however, not further considered and all subsequent sketches and drawings were on the basis that there would be no set back, partial or otherwise, from the western boundary. Counsel for the applicant relied on this material as showing that a relevant consideration, namely the siting of the western facade, had not been given consideration in the decision-making process leading to the decision of 19 November 1984.
It may well be that a building set back from the western boundary of Block 14 would have been consistent with the policies set out in the Civic Centre Policy Plan, although Mr Campbell and Mr O'Brien both said that the Commission's preferred option was for no set back at least at the street frontage. But be that as it may, the circumstance that the suggestion for a set-back was not further pursued does not, so it seems to me, warrant the conclusion that there was a failure in the decision-making process to give proper consideration to the relationship between the proposed development and the Town House Motel.
So far as the likely impact of the proposed development on the Town House Motel in terms of sun is concerned, I am satisfied that this aspect was properly considered by both Mr O'Brien and Mr Campbell in the course of considering the redevelopment conditions and that there was nothing in what occured subsequently to require the matter to be reconsidered before design and siting approval was given.
So far as the likely impact on the Town House Motel in terms of wind is concerned, the experience of the Commission's officers, and it was not inconsiderable, was that the erection of a medium rise building on Block 14 was not likely to give rise to any serious problem either in the pedestrian areas or for adjoining blocks. In this connexion it is to be noted that the Civic Centre Policy Plan lays down no criteria or standards in relation to wind effects - it simply identifies wind as one of the matters that may be of significane in considering the impact of a development proposal in relation to neighbouring uses. There was nothing in the material before the Commission's officers which suggested that investigation of the likely wind effects was necessary or desirable.
Evidence was given as to the likely wind effects by Professor W.H. Melbourne on behalf of the applicant and Dr J.J. Finnigan on behalf of the Commission. Professor Melbourne made an assessment of the likely environmental wind conditions about the north-east corner of the Town House Motel with the proposed development on Block 14 in place. He made this assessment without the benefit of wind tunnel tests and against criteria for comfort which he had himself developed some years ago and which are now well recognised as providing appropriate standards. Those criteria were explained by Dr Finnigan as being based on the probability that the annual maximum wind gust will be within certain limits, the annual maximum gust being the highest wind speed averaged over any three second period throughout the year and being calculated from measured wind statistics by assuming certain statistical distributions of wind behaviour. The four criteria adopted by Professor Melbourne state that in main public access-ways wind conditions are -

(a) completely unacceptable if the annual maximum gust exceeds 23 metres per second;

(b) generally acceptable if the annual maximum gust does not exceed 16 metres per second;

(c) generally acceptable for stationary short-exposure activities (window shopping, standing or sitting in plazas) if the annual maximum gust does not exceed 13 metres per second; and

(d) generally acceptable for stationary, long-exposure activities (outdoor restaurants, theatres) if the annual maximum gust does not exceed 10 metres per second.

Professor Melbourne agreed that his assessment had been superseded by Dr Finnigan's report which was an assessment inferred from wind tunnel tests which had been carried out at his, Dr Finnigan's direction. The tests were carried out on three model configurations as follows -

Configuration C1: The buildings present were the Town House Motel, the CWA rooms and the Polish Ex-servicemen's Club as they formerly existed, and the newly constructed buildings on the remaining blocks in Section 23.

Configuration C2: As in C1 except that the old CWA rooms and the Polish Ex-servicemen's Club were replaced by the proposed developments on those sites.

Configuration C3: As in C2 except that the approved three-storey extension to the Town House Motel was added.

Dr Finnigan set out the results of his assessment in respect of each of the configurations C1, C2 and C3 in a table which showed, in respect of each of Professor Melbourne's criteria, the probability of the occurrence of a gust of three seconds duration exceeding that criterion. The table, which appears in his report dated 15 October 1985, shows:

Criterion Configurations

C1 C2 C3

10 m/s Less than once Once in Less than once

in six months two weeks per month

13 m/s Less than once Once in Once per year

per year three months

16 m/s Less than once Once per Less than once

per year year per year

23 m/s Less than once Less than once Less than once

per year per year per year

Dr Finnigan summarised his assessment by stating that the model tests showed that, with the buildings around the Town House Motel in their configuration prior to the proposed developments on Block 14 and the adjoining block on which the Polish Ex-servicemen's Club had been sited, Professor Melbourne's criterion for environmental comfort for long term stationary activity is exceeded; that the erection of the proposed developments makes things somewhat worse in that Professor Melbourne's criterion for environmental comfort for short term stationary activity is just exceeded; but that the addition of the proposed three-storey extension to the Town House Motel brings conditions back close to their state prior, to the developments on Block 14 and the Polish Ex-servicemen's Club site.
I have already referred to the circumstance that the Civic Centre Policy Plan does not lay down any criteria or standards in relation to wind effects but simply identifies wind as one of the matters that may be of significance in considering the impact of a development proposal in relation to neighbouring uses. The Plan comprises general guidelines and broad statements of planning policy as a basis for making decisions about development. In stating that the planning considerations will include the likely impact of the proposed development on the neighbouring uses in terms of wind, sun, light, sound and smell, the Plan is clearly not intending to specify a list of subjects which must be separately and specifically addressed in relation to each application for design and siting approval. In cosidering such an application, it is a matter for those concerned in the decision-making process to determine whether, on the material before them and having regard to their experience and knowledge, further investigation needs to be made into any, and if so, which of those matters. Thus, in relation to the probable effect of a proposed development on wind environment conditions, it will be for them to determine whether steps should be taken to seek expert advice or to arrange for appropriate wind tunnel tests to be carried out and the results thereof to be expertly assessed.
In essence, the case of the applicant on this aspect of the matter depends upon it being established that those concerned in reaching a decision on the application for design and siting approval were bound, in the circumstances and before reaching a decision thereon, to seek such expert opinion or to arrange for wind tunnel tests to be carried out and the results thereof to be evaluated. Unless such steps were taken, the decision-making process was said to be vitiated because of a failure to take into account a relevant consideration.

In my opinion, a consideration of the material before the Court - including particularly the table prepared by Dr Finnigan and set out above - does not warrant the conclusion that the effect of the proposed development on wind environment conditions in relation to the Town House Motel was likely to be of such significance in the decision-making process that those concerned in that process were bound to act in the manner suggested. Not being so bound, it cannot properly be said that there was a failure to take into account a relevant consideration and the applicant's case on this aspect, therefore, fails.
The remaining matters upon which the applicant relied may be dealt with quite shortly. I am unalbe to accept that any of the officers concerned in the decision-making process was concerned to encourage the redevelopment of the Town House Motel site. It is true that they took into account, particularly in relation to their consideration of the treatment of the western facade of the proposed building, the possibility that redevelopment of the motel site might take place at some time in the future. That was, in my view, a matter proper to be taken into consideration.
I am also unable to accept the argument that in considering the amenity between the proposed building and the Town House Motel a lesser standard than that appropriate to a commercial area was applied. The evidence does not, in my opinion, provide any foundation for that submission. No sufficient basis has been shown to warrant the conclusion that Mr O'Brien or Mr Campbell, the two officers more particularly concerned with the matter, misunderstood the requirements of the Civic Centre Policy Plan in any relevant respect.

Matters Not Addressed
I deferred consideration of the question whether the applicant was a person aggrieved within the meaning of that expression in s.5 of the Judicial Review Act until after I had considered the substantive matters relied upon by the applicant. In the light of the conclusions to which I have come on those matters, it is unnecessary to consider further the question of the applicant's standing to bring this proceeding.
Whether, if the Court had been of opinion that the applicant had established a ground for relief, the Court should, in the exercise of its discretion, decline to afford such relief was the subject of a good deal of evidence and discussion during the course of the proceedings, particularly on behalf of the second and third respondents. As the applicant has failed on all the grounds taken, the question does not now arise and I say nothing further about it.

Order
For the reasons I have given, the application should be dismissed. The applicant must pay the respondents' costs of the application.

[1985] FCA 612

11 DECEMBER 1985