Mainore Pty Ltd v Australian Capital Territory
[2012] ACTSC 177
•29 November 2012
MAINORE PTY LTD v AUSTRALIAN CAPITAL TERRITORY
[2012] ACTSC 177 (29 November 2012)
ADMINISTRATIVE LAW – removal of ACAT review – application for judicial review – no special interest – no standing
Planning and Development Regulation 2008 (No 1) (ACT)
Planning and Development Amended Regulation 2011 (No 1) (ACT)
Australian Conservation Foundation Inc v Commonwealth of Australia & others (1980) 146 CLR 493
Blicharz v Minister for Urban Services & others (2000) 155 FLR 419
Save The Ridge Inc v Australian Capital Territory & anor [2004] ACTSC 13
Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning (1994) 122 FLR 269
Canberra Tradesman’s Union Club Inc & anor v Commissioner for Land and Planning & others [1998] ACTSC 244
Helkban Pty Ltd v Commissioner for Land and Planning & anor [2003] ACTSC 23
No. SC 844 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 29 November 2012
IN THE SUPREME COURT OF THE )
) No. SC 844 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: MAINORE PTY LTD
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Higgins CJ
Date: 29 November 2012
Place: Canberra
THE COURT ORDERS THAT:
Application for judicial review is dismissed.
The parties are granted leave to be heard as to costs.
This is an application for judicial review. The amended application is dated 23 July 2012 and claims a declaration that Sch 3, Pt 3.2, item 4, column 2, para (d) of the Planning and Development Regulation 2008 (No 1) (ACT) is invalid.
That is a reference to “merit track matters exempt from third-party ACAT reviews” and identifies:
A development on land in –
(a) the city centre; or
(b) a town centre; or
(c) an industrial zone; or
(d) the Kingston Foreshore
The declaration of exemption is contained in reg 350.
The “merit track” reference is a reference to Div 7.2.3 at s 119 and following.
Section 112(2)(b) defines “merit track” as an assessment track “for development proposals that can be assessed using the rules and criteria in the code that applies to the proposals”. The “code” is a reference to “a code in the Territory plan”.
In Part 3.2 of Schedule 3
This appeal related particularly to the inclusion in the exemption of “the Kingston Foreshore” in the regulation. That area is defined in the Schedule as “the area outlined in bold on the plan in this schedule, division 3.4.6.”
Division 3.4.6 Kingston Foreshore
It excludes from the defined area section 49, which is an arts and cultural precinct. Otherwise the area is mixed residential and commercial usage.
A proposal under the “merit track” will be considered by the Planning and Land Authority (PLA) unless under Div 7.3.5 the Minister directs the PLA that the development and application (DA) be referred to him. There is then no right to apply to ACAT for merit review.
The plaintiff is the owner of 36 residential and commercial units on blocks 8 and 9, section 48, Kingston. That is within the Kingston Foreshore area.
The right of ACAT review was purportedly removed on 14 November 2011 (effective 15 November 2011) by Planning and Development Amended Regulation 2011 (No 1) (ACT).
The defendant contends that that regulation change is invalid. As a preliminary matter the defendant objects that the plaintiff lacks standing.
The first ground for that assertion is that there are currently no proceedings to which the declaration of invalidity would be relevant. Further, there is no evidence of any proposed development to which the plaintiff, as a nearby land owner, might arguably object. If such a situation does arise it would be open to it to object to it and, if shut out by the impugned regulation, then to protest its invalidity.
The applicant here is, really, in no different position to that of the Australian Conservation Foundation Inc v Commonwealth of Australia & others (1980) 146 CLR 493. Indeed, I would refer to my decision in Blicharz v Minister for Urban Services & others (2000) 155 FLR 419.
There must be a special interest in the subject matter of the action in question over and above that enjoyed by the public generally. In the present case there is no proposed development in the Kingston Foreshore area to which the plaintiff has any objection. Such a proposal might, conceivably, arise in the future and it would then be a question as to whether merits review is validly excluded.
In Save The Ridge Inc v Australian Capital Territory & anor [2004] ACTSC 13 there was a road proposal to which nearby residents objected. It clearly impacted upon their amenity. In contrast is Jewel Food Stores Pty Ltd v Minister for the Environment, Land and Planning (1994) 122 FLR 269 and Canberra Tradesman’s Union Club Inc & anor v Commissioner for Land and Planning & others [1998] ACTSC 244. Their standing was said to arise from economic effects of competition. This was deemed insufficient to meet the test for standing.
To similar effect is my decision in Helkban Pty Ltd v Commissioner for Land and Planning & anor [2003] ACTSC 23. Even so, that was an objection to a proposed development not to a change of regulations limiting appeals.
I agree that the plaintiff has no standing to agitate the question of the validity of the impugned regulation.
I will hear the parties as to costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
.Associate:
Date: 29 November 2012
Counsel for the plaintiff: Mr M Einfeld QC
Solicitor for the plaintiff: Meyer Vandenberg
Counsel for the defendant: Mr P A Walker
Solicitor for the defendant: ACT Government Solicitor
Date of hearing: 26 July 2012
Date of judgment: 29 November 2012
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