Macedonian Orthodox Church Inc v Robert Paxevanos
[2009] ACTSC 166
•16 December 2009
MACEDONIAN ORTHODOX CHURCH INC v ROBERT PAXEVANOS
[2009] ACTSC 166 (16 December 2009)
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
No. SC of 85 of 2008
Judge: Mansfield J
Supreme Court of the ACT
Date: 16 December 2009
IN THE SUPREME COURT OF THE )
) No. SC 85 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:MACEDONIAN ORTHODOX CHURCH INC
Appellant
AND:ROBERT PAXEVANOS
First Respondent
ACT PLANNING AND LAND AUTHORITY
Second Respondent
THE EXECUTIVE COMMITTEE OF UNITS PLAN 1165
Third Respondent
KEVIN BRUCE
Fourth Respondent
OLD NARRABUNDAH COMMUNITY COUNCIL INC
Fifth Respondent
EVERYL ELLIS
Sixth Respondent
EDNA HAMILTON
Seventh Respondent
ADMINISTRATIVE APPEALS TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY
Eighth Respondent
ORDER
Judge: Mansfield J
Date: 16 December 2009
Place: Canberra
THE COURT ORDERS THAT:
The order of the Administrative Appeals Tribunal of 19 August 2008 be set aside.
The decision of the second respondent of 28 September 2007 be restored to the extent that it approved the development application of the appellant of 9 February 2006, subject to conditions, in respect of:
2.1 the subdivision of Block 11 Section 100 Division of Narrabundah into two separate parcels, namely a church site of 6,700 sq m in its western part (the Church site) and a residential site of 10,240 sq m in its eastern part (the residential site);
2.2 the variation of the Crown leases to be issued following that subdivision to vary the existing purpose clause in the existing Crown lease over Block 11 to allow –
2.2.1 the Church site to be used for a place of worship and religious and associated use;
2.2.2 the residential site to be used for residential purposes, limited to not more than 56 dwellings;
2.3the construction of a new community hall, a bell tower, a new Bishop’s residence, a baptismal pool, and work associated with the existing dome of the Church, and associated parking to support the Church and the community hall; and
2.4associated landscaping paving and other site works.
The decision of the second respondent of 28 September 2007 be set aside to the extent that it approved the said development application, subject to conditions, in respect of the construction on the residential site of up to 56 multi-unit dwellings for residential purposes, and in lieu of that part only of the said decision the development application be refused.
There be no order as to costs of the appeal.
The orders made today lie in the Registry and not be sealed until 4:00 pm 23 December 2009, or until further order in the event that any party files and serves by 4:00 pm 22 December 2009 a written outline of submissions in support of some other order as to costs, or as to the form of orders 1 and 2 hereof.
In the event that a party does file and serve a submission in accordance with order 5 hereof, the other parties shall file and serve any outline of submissions in response by 15 January 2010, and the initiating party shall file and serve any outline of submissions in reply by 22 January 2010, to the intent that the costs of the appeal will be determined on the written submissions.
There be liberty to apply.
This appeal is under, or concerns, two repealed Acts.
It is an appeal, by leave, on a question of law pursuant to s 46 of the Administrative Appeals Tribunal Act 1989 (ACT) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal). The AAT Act has been repealed by the ACT Civil andAdministrative Tribunal Legislation Amendment Act 2008 (No 2) (ACT), s 119(1)(a). The AAT Act has been replaced by the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the CAT Act). The transitional provisions are contained in the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), made under the CAT Act. It will be necessary to refer to them in due course. It is sufficient at present to say that, notwithstanding the repeal of the AAT Act, the appeal remains in force and is to be determined.
The appeal concerns the fate of an application for approval to undertake a development under Pt 6 of the Land (Planning and Environment) Act 1991 (ACT) (the LPE Act). The LPE Act has also been repealed. The LPE Act was repealed by s 428 of the Planning and Development Act 2007 (ACT) (the PD Act). The commencement day of the PD Act is 13 September 2007. Section 442 of the PD Act is the transitional provision with respect to development applications lodged before the commencement day of the PD Act. By virtue of s 422 of the PD Act, as the application presently under consideration had been lodged with the relevant authority before the commencement day of the PD Act, and the application had not been decided by the relevant authority before the commencement day of the PD Act, the LPE Act and the Territory Plan and other instruments under the LPE Act continue to apply in relation to the application.
Hence, the two repealed Acts, the AAT Act and the LPE Act, are to be applied in determining this appeal.
THE DEVELOPMENT APPLICATION
The Macedonian Orthodox Church Inc (the Church) is the lessee as Crown lessee of a parcel of land known as Block 11 Section 100 Division of Narrabundah (the land).
The land is irregularly shaped, and has an area of 16,940 sq m. It has an elevated position with frontages to its north to Goyder Street, running in the relevant area approximately east west, to Leahy Close on its eastern side, and in part to Dalrymple Street on its western side (and partly its western side abuts the eastern side of Block 12).
The present development on the land comprises a Macedonian Orthodox Church building which has a dome roof construction. It is a recognisable landmark within the Narrabundah Community, located on a knoll and visually prominent in lower lying areas.
Immediately to the west of the land, and also adjoining Goyder Street to the north to the point where it forms a junction with Dalrymple Street, is certain land known as Block 12. Dalrymple Street runs roughly north south and borders the western boundary of Block 12.
On Block 12 is a multi-unit residential development known as “The Regent”, comprising ten single storey units with a central internal driveway. It permits egress by the roadway running from within Block 12 to enter onto Goyder Street.
To the east of the land, on the same southern side of Goyder Street, is another multi-unit residential development comprising a single storey retirement housing complex known as “Mountain View”, and further east the “Jindalee Nursing Home”. They are both low density campus-style developments. South of the land, in Leahy Close, is a multi-unit residential development called “Greengate” that is two and three storeys in height. That development uses Leahy Close as its egress point onto Goyder Street.
Immediately to the north of Block 11, that is on the northern side of Goyder Street, there is a series of predominantly single storey detached dwellings.
On 9 February 2006, the Church applied to the Australian Capital Territory Planning and Land Authority (the Authority) under s 226 of the LPE Act to approve a development application for Block 11. The development application sought approval:
(a)to subdivide the land in two separate parcels – a church site of 6,700 sq m in its western part (the Church site) and in its eastern part a multi-unit residential site of 10,240 sq m (the residential site);
(b)to vary the subsequent Crown leases which would follow the subdivision to vary the existing purpose clause in the Crown lease over Block 11 to allow:
(1)the Church site to be used for a place of worship and religious and associated use; and
(2)the residential site to be used for residential purposes, limited to not more than 56 dwellings;
(c)to establish the national headquarters for the Macedonian Church in Australia on the Church site, including the construction of a new community hall, a bell tower, a new Bishop’s residence, a baptismal pool, and some work associated with the existing dome of the Church, and associated parking to support the Church and the community hall;
(d)at a later stage, to construct on the residential site a multi-unit residential development comprising 56 units with associated car parking; and
(e)to carry out associated landscaping, paving and other site works.
The original planning application constituted a pro forma document, completed in hand printing, but it clearly identified those separate steps and the appropriate boxes were ticked to indicate: subdivision; clause changes; single dwelling with new residence and addition/alteration to existing; and multiple dwelling new development. The Tribunal clearly understood the full extent of the proposed development. Putting aside the complementary work in (e), the Church said that each of those elements of the application were discrete, although ultimately sequential, and in that sense related, and should have been separately considered.
The current Crown lease over Block 11 was granted under the Church Land Leases Ordinance 1924 (ACT) commencing on 25 August 1982. The Crown lease permitted the use of Block 11 only for Church purposes within the meaning of that Ordinance. As the application involved the subdivision of the Block 11 to create a new parcel for the proposed residential development, the existing lease would have to be surrendered and two new leases issued. The proposed Crown lease purpose clause for the Church site, if the application to the extent it sought subdivision of Block 11 were approved, was to use the premises for a place of worship and religious associated use. It was not disputed on the appeal that the proposed development on the Church site was consistent with such a purpose clause. The residential site, if the subdivision were approved, was to be the subject of a new Crown lease with the purpose of a multi-unit residential development of not more than 56 dwellings.
The application was duly notified. The respondents to this appeal (other than the Authority) and a number of other persons and entities objected to the grant of the application, as permitted by s 237 of the LPE Act.
Once the objections had been received, the application was to be assessed. The particular application was required to be assessed, in general terms, pursuant to Pt 6 of the LPE Act. The application was for approval to conduct “development” on the land. “Development” is defined in s 222 of the LPE Act as including “the erection, alteration or demolition of a building or structure on or under the land” and “a variation of a lease of the land”. Section 223 of the LPE Act in turn defines the meaning of a “variation” of a lease:
(1)In this part, variation, of a lease, includes –
(a) the surrender of a lease and the granting of a new lease subject to different provisions to the same lessee over all or part of the land comprised in the surrendered lease; and
(b) a consolidation; and
(c) a subdivision.
Section 231 of the LPE Act sets out the matters that the Authority was required to consider when deciding whether to refuse or approve the application, including any objections to the application. The Authority can either approve or refuse an application (s 230 of the LPE Act) or approve an application subject to conditions (s 245 of the LPE Act). If an approval is granted subject to conditions, the Authority must include in that approval any condition that is required to be included by the Territory Plan: s 245(2). Section 245(3) provides:
(1) Without limiting subsection (1), the conditions subject to which an approval may be given may include a condition –
(a)that specified works, services or facilities that the relevant authority considers reasonable in the circumstances –
(i)be provided by the applicant on or to a place the subject of the approval, or on or to another place; or
(ii)be paid for in whole or in part by the applicant; or
(iii)be provided on or to a place the subject of the approval by agreement between the applicant and the Minister responsible for the provision of the works, services or facilities;
The Authority was required to assess the particular application against the Territory Plan, because s 8 of the LPE Act provides:
The Territory, the Executive, and Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the plan.
The Authority is a “territory authority” within the meaning of that section.
Section 7 of the LPE Act sets out the object of the Territory Plan, in a general sense, as follows:
(1) The object of the plan is to ensure, in a way not inconsistent with the national capital plan, that the planning and development of the ACT provides the people of the ACT with an ecologically sustainable, healthy, attractive, safe and efficient environment in which to live, work and have their recreation.
Clause 9.1(a) of Part A3 of the Territory Plan relevantly provides:
9.1The relevant authority shall not approve a development or a proposal for the use of land that would be inconsistent with:
(a) the applicable land use policy in Part B.
The land the subject of the application is within a “suburban” area under the Residential Land Use Policies of the Territory Plan, so the Authority could not approve the application if it were inconsistent with Part B1 of the Residential Land Use Policies. The Residential Land Use Policies comprises “objectives” and “controls”. One of the objectives, namely objective 1(d), of Part B1 was to:
safeguard the amenity, safety and special qualities and in particular the landscape character of established residential areas whilst carefully managing change in suitable locations.
Appendix III.2 Residential Design and Siting Code for Multi-Dwelling Developments describes the way that the Authority was required to assess the application as against the relevant objectives and controls:
The Code is in the form of a series of “Performance Controls” consisting of statements of “objectives” and “performance criteria” together with associated “performance measures”. An approval may not be granted to a proposal, which is inconsistent with the objectives and performance criteria stated in a relevant Performance Control. However, the performance measures are considered to satisfy the objectives and relevant performance criteria in most cases so that normally no further evidence of performance is required. Proposals, which do not meet the performance measures, may still be considered in terms of whether they meet the relevant objectives and performance criteria.
The application was duly considered by the Authority.
The Authority was satisfied that the application met the objectives of the Residential Land Use Policies, with the conditions which it intended to impose upon the approval of the application. It also worked through the relevant controls. It considered that each of the relevant controls in the Residential Land Use Policies was satisfied, provided there was compliance with the conditions which were to be imposed. It also measured the application against the Specific Land Use Policies contained in Part A3 Residential/Community Sites. The relevant controls for Area A3: Residential/Community Sites were addressed. The Authority was satisfied that the application was consistent with the those controls. So too was it satisfied in relation to the Residential Design and Siting Code for Multi-Dwelling Developments – Appendix III.2. To the extent to which the application complied with the relevant performance measures, approval was therefore to be given, but there were certain departures within the application which were rectified through conditions of approval or justified by reference to the relevant performance criteria and objectives. That is, the departures from that control were rectified by the imposition of conditions, and otherwise were justified to an assessment against the relevant objectives and performance criteria of the Code. It is not necessary to go through each of those matters as addressed by the Authority.
On 28 September 2007, the Authority approved the development application, subject to certain conditions.
Section 276 of the LPE Act provides for a person who has objected to the grant of the approval of an application pursuant to s 237 with standing to apply to the AAT for review of a decision of the relevant authority to approve an application under s 230 or to include a condition in an approval. The first respondent, having objected to the development application under s 237 of the LPE Act, was therefore eligible to apply to the Tribunal for review of the Authority’s decision pursuant to s 276, and subsequently did so in 24 October 2007.
That review came before the Tribunal. On 19 August 2008, the Tribunal decided to set aside the decision of the Authority and to substitute a decision that approval of the development application be refused.
THE TRIBUNAL’S REASONS
The Tribunal dealt with the principal grounds of objection to the decision of the Authority in its reasons for decision. It dismissed most of them. There is now no alternative contention or cross-appeal in respect of any of them. It is not necessary, therefore, to deal with them in any detail. The Tribunal determined the following matters:
(1)the proposed development was not out of character with adjoining development and the streetscape – the Tribunal found that there was no inconsistency with the requirements of the Territory Plan in regard to the proposal’s respect for characteristic features of the existing streetscape or compatibility with adjoining development (at [38]);
(2)the proposed development on the Church site was consistent with what it called “a religious associated use” and would be a permitted community use under the Part A3 Policies of the Territory Plan (at [39]);
(3)the proposed multi-unit residential development, including a third floor level of blocks A, B, C, D and F, did not fall within the definition of an “attic” within the Territory Plan. As it did not do so, that part of the proposal was not exempt from control 3.4 which limited buildings to two storeys – the Tribunal did not however accept that the third floor elements of the proposed multi-unit buildings were in contravention of control 3.4 (at [58]-[61]);
(4)the proposed development did not contravene side boundary setback requirements, as there was no basis for concluding that the development would result in a failure to meet performance criteria in the Territory Plan in this respect (at [65]);
(5)the proposed development did not have any inconsistency with the private open space requirements of the Territory Plan (at [71]);
(6)to the extent that there was overshadowing of neighbouring developments by the proposed development, the Tribunal concluded that the proposed development did not fail to satisfy the requirements of the Territory Plan in this regard (at [74]);
(7)in relation to overlooking of neighbouring properties, the Tribunal concluded that the proposed development met the performance measures for side setbacks (at [75]), and it was not persuaded that it did not satisfy the requirements of the Territory Plan in respect of overlooking, except to some extent where there was a specific overlooking issue in relation to the proposed Bishop’s residence, which could be met with the imposition of adequate conditions (at [78]);
(8)in relation to protected trees, the Tribunal concluded that the conditions proposed by the Authority were appropriate to avoid adverse impact on protected trees (at [80]);
(9)on the evidence of a Mr Streetfield, the Tribunal concluded that the proposed development is capable of complying with the requirements for access and mobility, but that it should impose conditions, proposed by the Church, which required a revised access and mobility report and revised plans to ensure an unimpeded path of travel in accordance with the guidelines for access and mobility (at [84]); and
(10)the proposed development provided for adequate parking on the Church site, given the development to take place there, by the provision of 61 spaces as that was sufficient to satisfy the requirements of the Territory Plan (at [113]).
The remaining issue ventilated before the Tribunal concerned the complaint of the objectors before the Authority, and of the applicant and other persons joined before the Tribunal, that there would be excessive traffic in the streets surrounding the proposed development, and that therefore it was inappropriate to add further development which would increase the vehicular movement along Leahy Close and along Goyder Street. That is the matter which, it is common ground, led to the Tribunal reversing the decision of the Authority and refusing to approve the development application.
It is necessary to note the Tribunal’s reasons on that topic in some detail, but it is not otherwise necessary to refer to the Tribunal’s reasons in any detail.
The Tribunal commenced by referring briefly to the evidence on the topic.
It noted that that part of the Narrabundah/Red Hill area had been recognised as having traffic problems for many years. In 2000, the then Department of Urban Services had commissioned a report by Maunsell McIntyre Pty Ltd to develop a master plan on the topic. That Report, entitled “Goyder Street Local Area Traffic Management Study Report 2001” (the Maunsell Report), as the Tribunal noted, indicated that:
Goyder Street has long been recognised as a street with a very high proportion of through traffic, high traffic speeds (downhill), restricted visibility over crests and traffic volumes that make it difficult for pedestrians to cross roads and residents to enter and exit their driveways.
Although daily traffic flows have been slowly declining over the past 20 years the road is still carrying excessive volumes and speeds of traffic. Recent planning decisions have resulted in further increases in traffic along Goyder Street. Traffic noise is also a concern to residents, especially from heavy vehicles using the road as a through route.
The Tribunal further noted that the Maunsell Report had recommended that a Master Plan be implemented in two stages for traffic management in the area. Much of the Stage 1 work had been undertaken, resulting in an improvement but not resolution of the adverse traffic effects. Certain recommended traffic calming measures in the Stage 1 work had not been implemented. The Tribunal further noted that the works as implemented were believed by the author of the Maunsell Report to have reduced the extent of “rat-running”, that is using Goyder Street as a through road when it was not a major arterial road. It also noted that the evidence indicated that in peak hour there was still a substantial delay at the affected intersections including in the Goyder Street/Dalrymple Street junction, as well as a high minor accident rate at that junction.
The Tribunal further noted that the traffic volume count in Goyder Street had been estimated by the Office of Transport in April 2007 at 4030 vehicles per day, consistent with traffic counts in 2004 and 2006. For the five years preceding the re-design of the Goyder Street/Dalrymple Street junction and the implementation of some of the Stage 1 traffic management measures following the Maunsell Report, the traffic volume in Goyder Street had been measured at several hundred vehicles per day more than the current level of about 4000 vehicles per day, and in earlier years considerably more.
The Tribunal’s finding on that evidence was as follows:
In summary the evidence shows that Goyder Street traffic is in excess of that recommended by the Maunsell Report; Dalrymple Street south is over capacity; Dalrymple Street north is just under capacity; while Leahy Close is at capacity and in excess of capacity at peak hour. The proposed residential development would generate approximately 340 vehicle movements per week day which would exit onto Leahy Close. Leahy Close is classified as an Access Street C. It exits onto Goyder Street, near the intersection with Dalrymple Street. It already carries all traffic from the large number of residential units there, for which it provides the only street access.
The Tribunal noted disagreement between the experts as to the accuracy or interpretation of the traffic data. That disagreement depended in part on whether Goyder Street was given the street hierarchy as a major collector street or as a minor collector street. It did not resolve that issue. It did not need to. A major collector street is permitted to have a vehicle movement of 6000 per day, and a minor collector street a vehicle movement of 3000 vehicles per day. The Tribunal said that street hierarchy definitions designed for new areas are not readily superimposed onto old road systems, and that it was not disputed that the Stage 1 traffic management measures aimed at reducing the traffic volume in Goyder Street to 4000 vehicles per day were appropriate. The latest traffic measurement showed that it is marginally above that objective.
It then continued:
A volume of 3,000 [vehicle movements per day] being the indicative two-way traffic volume for a minor collector street would, the experts agree, be preferable from the point of view of the amenity of residents. That is the criterion stated at C117 in the ACT Planning and Land Authority document “Future Urban Areas Residential Subdivision Code March 2008”, as the maximum desirable traffic volume for streets fronted by dwellings. Both Dalrymple Street and Goyder Street are fronted by dwellings and carry well in excess of 3,000 [vehicle movements per day].
It noted the evidence of a Mr Isaks, a transport specialist employed in the Office of Transport in the Department of Territory and Municipal Services, that Goyder Street has the capacity to absorb additional traffic, in conjunction with the progressive implementation of recommended traffic management measures aimed at reducing through traffic, but that (as he said orally) there are no current plans to proceed with the two traffic calming measures proposed in the Maunsell Report that have not been implemented as part of its recommended Stage 1 and there was no timetable for them to be implemented. He noted that work in other suburbs now has priority. The Tribunal also noted his opinion that, if the development were to proceed, it would be beneficial to the small number of residents on the northern side of Goyder Street opposite the proposed development to provide a reversing area to allow them to access and depart their blocks in a forward direction, a suggestion that had not been taken up. In his oral evidence, Mr Isaks noted that there were recommended works to manage local area traffic (including possibly a roundabout treatment at Caley Crescent and Goyder Street, and a raised pedestrian crossing designed to slow the traffic at a location he could not remember, but in the vicinity) to discourage commuter traffic from using Goyder Street as a means of thoroughfare, but that there was no indication as to when that work might be undertaken. He said he had raised it, but that there were claims on the “Roads ACT budget” for local area traffic management works for a range of purposes in other suburbs as well, and he was unable to say when that work might be carried out.
As to Leahy Close, the Tribunal noted the evidence that the 340 or so additional traffic movements anticipated to be generated by the residential development of up to 56 multi-unit dwellings would result in it being over its capacity at peak hours. It already is at capacity at peak hours, causing delays in exiting for residents. It found that further delays could be expected at the Leahy Close/Goyder Street junction at peak hours if the development were approved. It commented that “[n]o measures to ameliorate this potential problem were advanced by its proponents”.
After referring to s 7 of the LPE Act, the object of the Territory Plan, and to Part A3 cl 9.3 of the Territory Plan and the Residential Land Use Policies at Part B1 of the Territory Plan including objective (d) (cited at [21] above), the Tribunal then concluded at [100] in the following terms:
There is evidence of long-standing adverse impact of traffic on the amenity of the neighbourhood sufficient to stimulate the ACT Government to commission the Maunsell Report in 2001 and implement most of its recommendations. Additionally there is evidence of residents before the Tribunal of more recent experience of traffic delays. There is evidence that the development, if approved, would increase existing delays at the Leahy Close intersection and that the recognised environmental capacity of that street would be exceeded. Some hundreds of vehicle movements per day would be added onto other nearby residential streets, in particular Goyder Street and to some extent Dalrymple Street. Both already experience traffic volumes in excess of those considered appropriate for new residential areas. There is evidence that Mr Isaks recommended some years ago that residential development on this land should preferably be accompanied by measures to allow some residents of Goyder Street to exit their properties safely. There is no evidence of any attempt to require any such measures or to manage the additional traffic. Rather, the evidence is that no further works on the road system in the neighbourhood are planned.
There were conflicting submissions as to whether the subdivision of the land and change of use of part of it for a 56 multi-unit residential development should not occur when the evidence demonstrated that the road infrastructure would be inadequate. On behalf of the Church (supported by the Authority), it was submitted that on the evidence there would not be a significant adverse impact of traffic movement on the road system. The Tribunal noted at [101]:
The objectors submitted that it was a function of the planning system to ensure that infrastructure was provided consistent with the development and land use changes. Accordingly it followed that subdivision of the church land and change of use of part of it for 56 residential units should not occur when the evidence demonstrated that the road infrastructure would be inadequate. The respondent and the Church submitted that the evidence did not establish that there would be significant adverse impact of traffic movement on the road system. We have carefully considered the evidence of the impact of the additional traffic on the road system servicing the proposed residential development but do not agree that it would be insignificant.
The Tribunal concluded that it would be inappropriate to add a further 340 or more traffic movements to Goyder Street in the absence of any evidence of a further downward trend in traffic volume or of identified additional traffic engineering solutions being implemented. It noted that the additional 340 vehicles per day would return traffic levels on Goyder Street to close to those recorded before the Maunsell Report and the expenditure on traffic reduction measures following that report. It also noted that the evidence showed that not only Goyder Street but also Dalrymple Street and Leahy Close experienced traffic stress, and Mr Isaks’ opinion that works to provide safer egress for some residents of Goyder Street would be beneficial.
It then concluded at [104]:
Complaints about the potential for residential development to cause traffic problems are not uncommon, but this proposed development differs from other larger residential development proposals by virtue of its location. Its only street access would be onto Leahy Street, a small street already at or over capacity and with only one exit. The traffic would then flow onto other residential streets that have been demonstrated to have traffic problems and in part through intersections already congested at peak hour, before it reached arterial roads. In the absence of any proposals by the respondent or the Church to deal with the impact of the additional traffic that would be generated by this proposed development, and the evidence that the implementation of recommendations to remove recognised pre-existing problems in the local area remains indefinitely incomplete, we find that Objective (d) of the Residential Land Use Policies is not satisfied.
The Tribunal also considered whether it should approve some part of the proposed development application. The traffic impact which it considered to be unsatisfactory would, as it had found, follow upon the development and establishment of up to 56 multi-unit dwellings on the residential site. It concluded at [114] in the following terms:
The development application in this case comprised a number of separate components. It was submitted on behalf of the Church that each component constituted a separate decision which was required to be considered on its merits. Each of the components identified in written submissions made on behalf of the Church contained as one of its ingredients, approval to the construction of a multi-unit dwelling with or without the specification of a maximum number of units. Having regard to the conclusion which we have reached as to the impact that approval of additional multi-unit dwellings would have on traffic, it would not be appropriate to approve any component of the development application.
It is convenient to note one matter at this point. It is not correct that the written submissions made on behalf of the Church (or on behalf of the Authority) said that each component of the development application contained, as one of the ingredients for approval, the construction of a multi-unit dwelling with or without the specification of a maximum number of units. The contrary is the case. The Church did not make that submission. It specifically submitted that the Tribunal could approve each of the elements (a), (b) and (c) of the development application (as described in [12] above), independently of that part of the development application. The submission on behalf of the Authority also could not have been clearer. It relevantly read:
However, if the Tribunal decides not to approve the construction work on the proposed Residential site, in the light of Ex 22 and the evidence of Mr Streetfield, ACTPLA accepts that even if approval is not granted for the construction of buildings on the proposed Residential site, that approval can be granted for the subdivision, lease variation and construction work on the Church site.
The Church’s submission also contended that each of the decisions involving that sequence of approvals involved separate statutory approvals and had to be considered on their own particular merits. The submissions dealt separately with the subdivision and the lease purpose clause variation, saying expressly that they should be approved in any event.
Following the Tribunal’s decision to set aside the decision of the Authority and to substitute its decision that the development application be refused, the Church appealed that decision.
This appeal on a question of law is from that decision, pursuant to s 46 of the AAT Act (see [2] above).
The several respondents (other than the Authority) were the applicants before the Tribunal and a number of other parties also joined as respondents before the Tribunal. They have filed submitting appearances, subject to the question of costs. There being no contradictor, the Authority has appeared through counsel and made submissions on certain matters of law to assist the Court. The Authority in fact supported the position of the Church before the Tribunal. I regard its intervention to that extent as both appropriate and helpful. I am grateful for it.
THE GROUNDS OF APPEAL
There were four errors of law asserted in the Second Amended Notice of Appeal and in the contentions on behalf of the Church. They were:
(1) the Tribunal failed to fulfil its statutory duty to consider each individual element of the development application, but rejected the application in its totality because of the impact on traffic that approval of the construction of a 56 dwelling multi-unit residential development would have (see its conclusion set out in [43] above);
(2) the Tribunal failed to make material and unambiguous findings of fact as required by law in concluding that there would be a significant adverse impact of traffic movement on the road system servicing the proposed residential development (see its conclusion set out in [43] above); another way the argument developed on that point involved the contention that the Tribunal failed to provide adequate reasons for that conclusion;
(3) the Tribunal failed to accord the Church procedural fairness by not informing the Church that its decision could turn on the absence of proposals by the Church to deal with the impact of the additional traffic generated by the development, what those proposals were and where it was necessary for them to be located; and
(4) the Tribunal failed to consider, as it was obliged by law to consider, the imposition of a condition on the approval of the development application under s 245(3) of the LPE Act.
CONSIDERATION
As to the first ground of appeal advanced by the Church, namely, that the Tribunal failed to fulfil its statutory duty to consider each element of the application (as described at [12] above), it is necessary to advert to the legislation.
By virtue of s 8 of the LPE Act, set out in [18] above, the Authority could not approve the development application, if to do so would be inconsistent with the Territory Plan. The Tribunal was not required to find, as a jurisdictional fact, that the development application was consistent with the Territory Plan (see Gray J at [17] in Capital Property Projects (ACT) Pty Limited & Ors v Planning & Land Authority & Anor [2007] ACTSC 95, cf Refshauge J at [89] et seq granting leave to appeal from that decision in Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9). The Tribunal found at [114] of its reasons that owing to the adverse impact on traffic that approval of the multi-unit dwellings would have, there was inconsistency with the Territory Plan in respect of objective (d) (set out at [21] above). That was the only matter upon which the Tribunal found there to be inconsistency with the Territory Plan. The Church accepted that the impact on traffic was a relevant matter for the Tribunal to consider when assessing objective (d).
However, in my judgment, the Tribunal erred in misunderstanding the submissions before it. In consequence, it failed to consider the case that the Church advanced. Such a failure amounts to an error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346, 349-52. The Tribunal understood the Church and the Authority to have submitted that each component of the development application before it contained, as one of the ingredients for approval, the construction of a multi-unit dwelling with or without the specification of a maximum number of units (see [44] above). As I have indicated at [45] above, that was an error on the part of the Tribunal. Having found at [104] that objective (d) of the Residential Land Use Policies was not satisfied in respect of the adverse impact on traffic that approval of the multi-unit dwellings, the Tribunal consequently misdirected itself by finding that, by virtue of that inconsistency with the Territory Plan, it would not be appropriate to approve any component of the development application. In so doing, the Tribunal did not perform its statutory function according to law in considering the development application before it because its function required it to consider the application before it, which involved stages and sequential steps.
There was, in fact, no evidence or any findings of inconsistency with the Territory Plan in respect of each or any of the elements (a), (b)(1) and (c), and the complementary work in (e), of the development application (as described in [12] above). The only inconsistency the Tribunal found at [114] was in respect of element (d) of the development application. Given that there was no inconsistency with the Territory Plan found by the Tribunal in respect of elements (a), (b)(1) and (c) and the complementary work in (e) of the development application, nor any reason for the Tribunal to refuse or reject those elements of the development application, the Tribunal erred in rejecting those elements of the development application. As a matter of law, the Tribunal was required to consider each element of the development application as against the Territory Plan separately.
It is not necessary to address the other ways in which the Church put argument on this ground of appeal.
I will refer to the question whether the finding of the Tribunal about the adverse impact on traffic could or should have led to the Tribunal rejecting part (b)(2) of the development application, namely that the proposed new Crown lease over the residential site should have a purpose clause restricting residential development to not more than 56 dwellings, and the question of appropriate relief, after considering the other grounds of appeal.
The second ground of appeal concerned the adequacy of the findings of the Tribunal.
The submission on behalf of the Church was quite refined. It was not that the Tribunal’s reasons overall were inadequate. Such a submission could not succeed. The Tribunal’s reasons were detailed and careful. It was that, in particular respects, the Tribunal’s reasons failed to make findings of fact which (it submitted) necessarily had to have been made to have reached its conclusion.
The particular matters on which, the Church claimed, findings should have been made but were not made (or were not expressly made so that the process of reasoning is transparent) are:
(i) what “further downward trend in traffic volume” was required;
(ii) what “additional traffic engineering solutions” were required to be implemented and where they were to be implemented;
(iii) what proposals ought to have been advanced by the second respondent and the appellant to deal with the impact of additional traffic that would be generated by the proposed development; and
(iv) whether measures were required to allow residents on Goyder Street to exit their houses safely and if so, what were those measures and for which houses were they required.
Hence, it is claimed, the Tribunal failed to make material or unambiguous findings of fact.
The first and second of those matters are based on an observation of the Tribunal at [103] of its reasons. It is summarised at [42] above, but it is helpful to set out that paragraph in full. It provides:
We believe it would be inappropriate to add to it a further 340 or more traffic movements to Goyder Street in the absence of any evidence of a further downward trend in traffic volume or of identified additional traffic engineering solutions being implemented. We have regard to the fact that the additional 340 vpd would return traffic levels on Goyder Street close to those recorded before the Maunsell Report and the expenditure of government funds on traffic reduction, which work was endorsed by the expert witnesses. We note that the evidence shows that not only Goyder Street but also Dalrymple Street and Leahy Close experience traffic stress and also Mr Isaks’ opinion that works to provide safer egress for some residents of Goyder Street would be beneficial. We prefer Mr Shoobridge’s approach to that of Mr Randall, whose view was that development should not be constrained even if traffic standards are not met. We can find no basis for that approach in the Territory Plan.
The other two matters are said to flow from the first two.
Ultimately, by that process of argument, the Church submitted that the Tribunal’s reasons fail to disclose why, with the proposed development of up to 56 dwellings, there is inconsistency with objective (d) of the Territory Plan. That objective, it is to be recalled, is one applicable at least to the last step in the development application, the development of 56 multi-unit dwellings on the residential land. The relevant objective, objective 1(d) of Part B1 of the Residential Land Use Policies, mandated by the Territory Plan, is relevantly to “safeguard the amenity … of established residential areas”: see the full text cited at [21] above.
The Church did not contend that consideration of the “amenity” could not include consideration of the impact of increased traffic movement in the vicinity adjacent to the proposed development by the construction of 56 multi-unit dwellings on the land. Rather, its submission was that it had erred in law when doing so. It submitted that there was no finding that “because of an identified effect on amenity at a particular point, unless a particular measure is taken the development application will be inconsistent with the Plan”.
I do not accept that the Tribunal erred in the way or ways asserted.
It referred quite extensively to the evidence about the topic. It noted the adverse impact of traffic on the amenity of the area prompted the Maunsell Report in 2001, and the ameliorating steps taken as a result. It referred to current problems of access and egress from Leahy Close, for those living on the northern side of Goyder Street, and the volume of Goyder Street traffic in the evidence. It noted that both Goyder Street and Dalrymple Street carry traffic volumes in excess of those considered appropriate for new residential areas. It noted Mr Isaks’ evidence that, despite the recommendation to take further traffic management measures in relation to the existing traffic flow, there was evidence that at the time of its decision no further steps to do so were planned. It noted that the additional dwellings, if established, would add some 340 vehicle movements per day onto Leahy Street – which it said was already at or over capacity – and Goyder Street. The traffic movements on Goyder Street would then revert to their level prior to the Maunsell Report of 2001.
Counsel for the Church drew attention to the evidence of Graeme Shoobridge, a civil engineer experienced in road and infrastructure design and traffic engineering. He gave evidence before the Tribunal, presented on behalf of the objectors. He referred to, and relied on, the Maunsell Report. Somewhat obliquely (at least in the passages from his written statement to which attention was specifically drawn) he said the Tribunal’s assessment of the impact of increased traffic using Goyder Street if the development on the residential site were approved would need to “acknowledge and take into account” the Maunsell Report and the impact of the Stage 1 traffic management measures which followed it. In particular, he identified the need to reduce the “rat run” or through traffic on Goyder Street and the accident rate at the junction of Goyder Street and Dalrymple Street. He said:
In summary, I am of the opinion that the Guy reports do not provide adequate assurance that traffic conditions such as vehicle speeds and traffic volumes in Leahy Close, Goyder Street and Dalrymple Street will be within acceptable limits following completion of the proposed development and I do not believe that there will be sufficient parking on site to ensure that there will not be intrusive overflow parking in Leahy Close and Goyder Street during periods of peak activity within the church site. If appropriate LATM [local area traffic management] measures to reduce traffic volumes and vehicle speeds are not implemented before completion of any traffic generating developments along Goyder Street, then I believe that the additional traffic will have the effect of exacerbating the number and severity of traffic crashes, increasing the level of traffic hazard for road users and adversely affecting the amenity for residents of Goyder Street. Accordingly I am of the opinion that the proposed development should not be approved unless and until such matters have been fully resolved and that traffic conditions in Goyder Street meet the traffic standards adopted by the Legislative Assembly and Roads ACT for this road.
The Tribunal acknowledged that, in addition to the Stage 1 works already carried out following the Maunsell Report, that report had suggested further traffic management measures to deter through traffic and to reduce travel speeds along Goyder Street.
The reasons of the Tribunal are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 280-1. After its consideration of the evidence, and its intermediate conclusions on that evidence at [100]-[103], in my view the Tribunal’s reasons at [104] read fairly indicate that it found that objective (d) was not satisfied. It did so for clear reasons: the increased flow of traffic from Leahy Close would increase usage beyond its present capacity, with consequent delays in vehicle movements in that street, and would increase traffic flows along Goyder Street beyond the level acceptable for residential areas and with increased risk of accidents, and increased difficulties for residents on the northern side of Goyder Street in gaining access to or egress from their properties. The findings of the Tribunal do not lack the reasonable degree of particularity which is required: cf De Domenico v Marshall (1999) 94 FCR 97 at 116, 121-2.
In this context, the Tribunal was not required to identify the proposals by the Authority which would or might deal with the impact the increased traffic movements would have upon the amenity. Nor was it required to identify what steps, if any, the Church might have taken either directly or by arrangement with the Authority which would or might deal with that impact. Its task was to decide whether the particular part of the development application involving the construction of 56 multi-unit dwellings on the residential site would or might address that impact. It did so.
Section 245(3)(i) of the LPE Act empowered the Authority (and the Tribunal in its stead) to impose conditions on the grant of a development application, including a condition:
that specified works, services or facilities that the relevant authority considers reasonable in the circumstances –
(i) be provided by the applicant on or to a place the subject of the approval, or on or to another place; or
(ii) be paid for in whole or in part by the applicant; or
(iii) be provided on or to a place the subject of the approval by agreement between the applicant and the Minister responsible for the provision of the works, services or facilities.
The existence of that discretionary power does not mean that, as a matter of law, the Tribunal was obliged to make findings about what the Authority, or somehow the Church, might have been required to do to somehow diminish the adverse impact of the proposed residential development upon the amenity. It was required to find whether objective (d) of the Residential Land Use Policies was satisfied. It was not so satisfied. It did not err in law, at that point, by not considering whether the imposition of some condition or conditions on the Authority might ameliorate that impact. That is a different question. If it had been satisfied that objective (d) was met, no question of possible conditions would have arisen. Moreover, the Tribunal’s role did not oblige it to impose conditions on the relevant government authority. There may have been steps available to the relevant government authority which may have somehow lessened that adverse traffic impact. But the evidence was that the availability of those steps had been known for some years and they had not been taken; and, further, that there were no present plans to take them. Consequently, as the Tribunal had no power to direct the relevant government authority about how and where to allocate its resources available for traffic management in the Territory, it could not have directed that authority to take the steps referred to in the Maunsell Report or by Mr Isaks. The Tribunal had no power to take any of those steps. It might have discussed with the relevant government authority whether it might take them. However, for the same reason, the Tribunal did not err in law by failing to make specific findings about the possible steps which might have been taken by the relevant government authority, and then about the extent to which those steps might (to the extent they were taken) have ameliorated the adverse traffic impact on the amenity, in deciding that objective (d) was not met.
The third and fourth grounds of appeal were argued together. The Church submitted that the Tribunal failed to accord the Church procedural fairness, by not informing the Church that its decision could turn on the absence of proposals by the Church to deal with the impact of additional traffic generated by the development, what those proposals were and where it was necessary for them to be located. It then followed, it was argued, that the Tribunal failed to consider, as it was obliged by law to consider, the imposition of a condition on the approval of the development application under s 245(3) of the LPE Act.
The proposition that emerged on behalf of the Church in support of its procedural fairness ground of appeal was that the Tribunal should have put the Church on notice that it considered the adverse impact on traffic of approval of the 56 multi-unit dwelling to be of sufficient gravity to refuse the development application, but that it considered there might be appropriate measures which could be introduced (whether by way of conditions to be imposed or otherwise) that might be suitable. In failing to put the Church on notice of the gravity of the issue so that, unless something was done to address the issue (perhaps by way of suggestion of an appropriate condition), the development application would be refused, the Church says that the Tribunal deprived the Church of procedural fairness and deprived the Church of the opportunity to consult with the Authority (which would ultimately be responsible for approving traffic management measures and would need to be consulted before any such measure was implemented) and to present proposals on which the development application could be granted, subject to conditions.
The starting point for the Church’s submission, that it was entitled to be informed by the Tribunal that the planning application may be rejected because objective (d) was not satisfied due to the increased traffic movements anticipated by the proposed residential development, was the decision in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (Somaghi).
Somaghi is obviously quite a different case. The appellant in that case, an Iranian, had applied to be recognised as a refugee for the purposes of the (then) s 6A of the Migration Act 1958 (Cth). Whilst in Australia, he wrote to the Iranian Embassy expressing opposition to the Iranian Government. He then claimed, inter alia, to be a refugee sur place by reason of that letter. The decision maker, without giving the appellant notice that the letter might be regarded as not having been sent in good faith (that is, to create a pretext for invoking a well-founded fear of persecution), rejected the application and concluded that the letter was a pretext. The majority (Jenkinson and Gummow JJ in separate judgments, Keely J dissenting) decided that procedural fairness required the decision-maker to tell that appellant what was thought to be his purpose in writing the letter and to take into account his response before deciding that issue.
The principles of procedural fairness are not really in issue. Gummow J in Somaghi, referring to Kioa v West (1985) 159 CLR 550, said at 119:
The decision-maker has to adopt what, in the circumstances of the case, is a reasonable and fair procedure, having regard to the matters the decision-maker is bound to take into account, and also to those matters adverse to the interests of the person in question which he proposes to take into account.
His Honour at 120 made the point that the assumption of the decision-maker was, necessarily, that any response of the visa applicant about his purpose in sending the letter would be worthless. It was that assumption which indicated why, in the particular circumstances, procedural fairness should have been afforded to him. Jenkinson J at 109 said procedural fairness was required because the decision on that issue was not the obviously natural response that the visa applicant should have been regarded as having knowledge of that judgment.
In this matter, the Church knew of the issue concerning impairment of the amenity by the traffic volume on Goyder Street, and the backup of traffic on Leahy Close. There had been extensive evidence about it. The Goyder Street traffic load was some 4030 vehicles per day in 2007, whereas (on the evidence) the ideal load was about 3000 vehicles per day. There were other multi-unit developments to the east of the land feeding traffic into Goyder Street. The proposed development of 56 multi-unit dwellings on the residential site would add a further 340 or so vehicle movements per day to Goyder Street, that is they would increase its usage by about 8%. There was evidence about traffic management measures which might be taken to reduce the through traffic (or “rat-runners”) on Goyder Road, and that such measures were not in the foreseeable future to be taken by the Authority. There was also evidence about a possible reversing lane in Goyder Street for the residents opposite Block 11, about the traffic chokes in Leahy Close, and about reducing accidents in Dalrymple Street.
In those circumstances, in my judgment, it was clear to the Church that there was “on the table” a risk that the Tribunal might reject the application (or that part of it which concerned the 56 multi-unit dwelling development) because the increased traffic it generated would impair the amenity to the extent that objective (d) was not satisfied. The Church was legally represented: cf Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 per Toohey J at 179. It had the opportunity to present to the Tribunal whatever evidence it considered appropriate (subject to relevance). The Church could have, but did not, then present evidence of the type now proposed through Mr Shoobridge. That evidence is referred to at [84]-[85] below.
In my judgment, that opportunity should have been apparent to the Church. It was not incumbent on the Tribunal, either during the hearing or when the Tribunal had reached its view that objective (d) was not satisfied, to specifically notify the Church that it might reach or had reached that view and to tell the Church what traffic suppression measures it considered might alleviate traffic volume on Goyder Street to such a degree that objective (d) would be satisfied. It was not necessary to do so to adopt a procedure that “was reasonable and fair” (per Brennan J in Kioa v West (1985) 159 CLR 550 at 629). Indeed, as public works could only be carried out by the Authority, the Church would (and could) have negotiated with it. There may be other reasons, unexplored in the evidence, why the Authority might prefer not to divert traffic flow from Goyder Street elsewhere. More importantly, there may then have been further evidence upon which the Tribunal would have had to make a decision about whether objective (d) would have been satisfied if those works were carried out. The particular impact on the amenity of the increased traffic flows in Leahy Close may have required separate consideration, as that is not addressed in the proposed further evidence.
The Church chose to take the position before the Tribunal that the additional traffic flows to be generated by the 56 multi-unit dwelling development would be insignificant. That is how it ran its case. Simply put, it lost that issue. It was not, in my view, deprived of the opportunity to be aware of the risk that it might lose that issue so that further action might need to be taken if, otherwise, objective (d) was to be satisfied or to adduce evidence and to make submissions on that topic at the hearing.
The fourth ground of appeal was, as put by counsel for the Church, associated with the third ground of appeal and contingent on it. It can be dealt with shortly as I have rejected the third ground of appeal.
The short answer is that, in my view, it was not in the circumstances an error of law by the Tribunal not to impose conditions on an approval of the development application. The imposition of conditions is a discretionary power. The Tribunal adverted to the power, indirectly, in [104] of its reasons, cited above at [43]. It noted the absence of any proposals by the Authority or by the Church to deal with the impact of the additional traffic that would be generated by the proposed development. That was the case. The written submissions to the Tribunal did not invite the Tribunal to make findings upon which conditions such as those now suggested by the Church might have been imposed, with an approval of the proposed development. They did not invite the Tribunal, as an alternative to the primary case of the Church, that in the overall picture the additional traffic flows would be insignificant to the amenity, to consider the imposition of conditions under s 245(3) of the LPE Act. They did not propose possible conditions. They proceeded on the basis that, as the evidence showed, there was no foreseeable action intended to further reduce traffic flows or traffic speeds along Goyder Street.
Counsel for the Church relied upon Sullivan v Department of Transport (1978) 20 ALR 323 to support the proposition that, irrespective of whether it was raised, the Tribunal in this matter was obliged to consider the imposition of conditions under s 245(3) of the LPE Act.
I do not consider that case supports the proposition. It turned on its particular legislation. It concerned an application for renewal of a commercial pilot’s licence after illness, and whether the decision-maker had considered whether to renew the licence, on the condition that he not be authorised to engage in international air navigation. On the particular regulations which applied, it was accepted by the Department that the decision-maker was, as a matter of law, to take two steps in considering the application, namely whether there was a failure to meet the relevant medical standards and, if they had not been met, whether a conditional licence should be issued: see per Deane J at 344-5 and 349, and per Fisher J at 351. It is not authority for the proposition that, if there is in any legislation a discretion to grant an approval subject to conditions, the decision-maker must consider the exercise of that discretion even if, on the findings of fact, the factors that might enliven the discretion do not exist and even if the parties do not ask for the discretion to be exercised. In this matter, I have concluded that the Tribunal in any event adverted to the existence of the discretion but did not exercise it because it had not been invited to do so and because the facts as found meant that the possible conditions on its exercise would be inconsistent with the facts as found.
RELIEF
As set out at [2] above, the Tribunal no longer exists. It has been replaced by the ACT Civil and Administrative Tribunal (the CAT). The transitional provisions in the regulations referred to in [3] above do not deal with the specific circumstances of this matter, namely, where a development application was heard by the Tribunal, and an appeal subsequently heard by the Supreme Court. There is, in effect, a “sunset clause”, providing for the Tribunal (the “replaced entity”) to continue to exist for 6 months. That period has now expired. The matter might theoretically be “remitted” to the CAT, although it is apparent that is not specifically contemplated by the transitional provisions.
In those circumstances, I gave leave to the Church to adduce fresh evidence on the appeal confined to the question of relief.
That evidence was from Mr Shoobridge. It was to the effect that, if the Church constructed three “Proposed Traffic Works” on Goyder Street to the east of its junction with Leahy Close, such work would in his view sufficiently address the traffic volume, ie reduce it, and traffic speeds, on Goyder Street. He would then be of the view that there would be no “traffic problem” along Goyder Street as a direct result of the additional traffic expected to be generated by the proposed residential development. As I have concluded that the Tribunal erred in law in a certain respect, his evidence might be used to inform the Court on the relief which might then be appropriate. However, I do not consider his fresh evidence means that the appeal should be allowed in the terms sought by the Church.
Having regard to my conclusion on the first ground of appeal, in my view the appropriate orders are:
(1) to set aside the order of the Tribunal of 19 August 2008 and to substitute the following orders:
(a) that the decision of the delegate of the Authority made on 28 September 2007 be restored to the extent that it approved the development application subject to conditions in respect of –
(i) the subdivision of Block 11 Section 100 Division of Narrabundah into two separate parcels, namely the Church site and the residential site;
(ii) the variation of the Crown leases to be issued following that subdivision to vary the existing purpose clause in the existing Crown lease over Block 11 to allow –
A. the Church site to be used for a place of worship and religious and associated use; and
B. the residential site to be used for residential purposes, limited to not more than 56 dwellings;
(iii) the construction of a new community hall, a bell tower, a new Bishop’s residence, a baptismal pool, and work associated with the existing dome of the Church, and associated parking to support the Church and the community hall; and
(iv) associated landscaping paving and other site works;
(b) that the said decision of the delegate to the extent that it approved the development application subject to conditions in respect of the construction on the residential site of up to 56 dwellings for residential purposes be set aside and in lieu thereof that the development application in respect of the construction on the residential site of up to 56 multi-unit dwellings for residential purposes be refused.
I do not regard Mr Shoobridge’s further evidence as significant to the form of relief except to a limited extent, as I concluded that the Tribunal did not err in law in deciding that the development application, to the extent that it sought approval to construct 56 dwellings on the residential land, should be refused.
I noted above at [56] that some question remained, once I had found the Tribunal had erred in law in refusing the entire development application, as to whether that element of the development application referred to in [12(b)] above should be granted. Upon reflection, I have restored that part of the delegate’s decision. The particular obstacle to the 56 dwelling development, as found by the Tribunal, was the impairment to the amenity by the traffic volume to be generated by that development. Mr Shoobridge’s fresh evidence indicates that that obstacle might be able to be removed. It is a matter of fact to be addressed if a fresh development application for the construction of those dwellings, or a lesser number of dwellings, is to be made. The approval of the variation of the Crown lease over the residential site to allow up to 56 dwellings for residential purposes neither permits nor dictates the nature or extent of the development which might be proposed, or the assessment of its impact upon the amenity of the area having regard to objective (d), except by imposing an upper limit on the density of any development.
I am, in the circumstances, disposed to order that there be no costs of the appeal. The Church has only partly succeeded. The Authority adopted the role of contradictor in a helpful and appropriate way, and in the absence of any other contradictor. As I noted, it supported the Church’s position before the Tribunal. I will make an order that there be no costs of the appeal, but will direct that that order lie in the Registry and not be sealed until 4 pm 23 December 2009, or until further order in the event that either the Church or the Authority files by 4:00 pm 22 December 2009 a written outline of submissions in support of some other order as to costs. If such a submission is filed, it is of course also to be served. The other party will then have until 15 January 2010 to file and serve any outline of submissions in opposition, and the initiating party until 22 January 2010 to file and serve a reply. I will then deal with the costs of the appeal on those written submissions.
I will also give the parties liberty within seven days to speak to the form of the other orders which I make. They are also to lie in the Registry and not be sealed until 4:00 pm 23 December 2009.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Mansfield.
Associate:
Date: 16 December 2009
Counsel for the appellant: P Walker
Solicitor for the appellant: Clayton Utz
Counsel for the second respondent: DJC Mossop
Solicitor for the second respondent: ACT Government Solicitor
Date of hearing: 27 July 2009
Date of judgment: 16 December 2009
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