Lyneham Community Association Inc v ACT Planning and Land Authority & Ors (Administrative Review)

Lyneham Community Association Inc (LCA) applied to the Administrative Review Tribunal (Tribunal) for review of a refusal by the ACT Planning and Land Authority (ACTPLA) on 23 June 2023 to make a controlled activity order against Brindabella Christian Education Limited (BCE) for its use and development of land as a car park in breach of the planning laws. BCE operated a private non-denominational Christian co-educational early learning, primary, and secondary day school from a campus in Lyneham. BCE had used a portion of Block 23 Section 41 Lyneham (Area 1) as a car park for over 10 years without development approval. ACTPLA and the Transport Canberra and City Services Directorate (TCCS) were joined as parties. BCE conceded that a controlled activity order should be made but proposed that it be stayed until it either obtained development approval for the car park or development approval was refused. BCE proposed that, if it obtained approval for the use and development of the land as a car park, the controlled activity order should be stayed permanently. ACTPLA adopted the same position at the hearing. The LCA contended that the Tribunal should order BCE to cease using and permitting others to use Area 1 as a car park from the end of the school term on 8 December 2023, but that the order for reinstatement of the land should be stayed for a period of time to allow BCE an opportunity to seek appropriate development approval, recognising that this would require a variation to the Territory Plan. BCE, ACTPLA and TCCS contended that BCE should be permitted to continue to use Area 1 in the same way as it had before, with some minor changes to improve the safety of pedestrians and cyclists at the entrance to the car park, until BCE either obtained development approval for the use and development of the land as a car park or development approval was refused, a process that was acknowledged may take up to two years. The Tribunal considered that the daily interaction of a large number of young children and cyclists and vehicular traffic entering and exiting the car park presented an unacceptable risk of an accident causing serious injury to a child or cyclist. The Tribunal rejected ACTPLA’s submissions that “on balance, the net safety impact of the car park is positive” and that “the current arrangement is significantly better for both child safety and traffic management” than if the car park is closed. The Tribunal considered that the overriding public interest is best served by ordering the controlled activity to cease on the last day of the school term, rather than allow it to continue for a period of up to two years while BCE pursued an application to have the land rezoned and for development approval to use the land as a car park or for some other permitted use. The Tribunal made a controlled activity order that would require BCE to cease its use of Area 1 as a car park and a drive-through access point for dropping off and picking up school children from the last day of the current school term. Vehicular access to the land would be blocked by a locked chain, steel bollard or the like from the last day of the current school term. The verge crossing would be demolished and the kerb and footpath would be reinstated before the commencement of the next school term in 2024. Demolition of the car park and reinstatement of the land would be completed by a date that is 12 months from the date of final orders. The parties would have liberty to apply on 21 days’ notice in writing for an order extending the date on which the order for demolition and reinstatement of the car park took effect, or an order ending the controlled activity order in the event the college obtained development approval to use the land as a car park or other approved use.