Malcolm Cooke, Marily Cintra, Myles Gostelow & Penelope Coffey & Act Planning & Land Authority & Ors (Administrative Review)
[2010] ACAT 65
•18 October 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MALCOLM COOKE, MARILY CINTRA, MYLES GOSTELOW & PENELOPE COFFEY & ACT PLANNING & LAND AUTHORITY & ORS (Administrative Review) [2010] ACAT 65
AT 08 of 2010
Catchwords: ADMINISTRATIVE REVIEW –Planning and Development – Lease Variation.
Application to vary lease with restricted purpose clause to allow additional uses and remove restrictions – whether applicants are “eligible entities” within the meaning of s 207 of Planning and Development Act 2007 – whether the decision causes applicants to suffer “material detriment” – whether decision likely to increase direct or indirect competition with businesses of applicants – application of Human Rights Act 2004 to decision on standing - whether proposed lease variation consistent with the Territory Plan and the National Capital Plan –whether Cuppacumbalong and adjacent leases constitute an arts and craft precinct – whether proof of unviability of business under current lease is required before lease can be varied – whether lease should be varied in absence of environmental impact assessment – whether proposed changes to lease are appropriate to protect heritage values of Cuppacumbalong.
Legislation:ACT Civil and Administrative Tribunal Act 2008 (ACT)
Human Rights Act 2004 (ACT)
Land (Planning and Environment) Act 1991 (ACT) s 246Planning and Development Act 2007 (ACT) ss 136, 153, 155, 162, 283, 407, 408, 419
Trade Practices Act 1974 (CTH)
Subordinate The Territory Plan 2008 (ACT)
Legislation: The National Capital Plan as amended 2009 (CTH)
Case Law:Attorney-General (NSW) v Quin (1990) 170 CLR 1
Cousin & Anor v Grant & Ors (1991) 103 FLR 236
Helkban & Ors and Commissioner for Land and Planning [2002] ACT AAT 12 (9 April 2002)
Jewell Food Stores Pty Ltd and Ors v Minister for Environment, Land and Planning & Ors (1995) 122 FLR 269
Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675
Minister for Immigration v Kurtovic (1990) 92 ALR 93
Morpath Pty Ltd v ACT Youth Accommodation Group Inc & Ors (1987) 16 FCR 325
Thomson v ACT Planning and Land Authority [2009] ACAT 38
Warren Gardner & Julie Beaver v ACT Planning and Land Authority (Administrative Review) [2010] ACAT 64
Watson v ACT Planning and Land Authority & Ors (Administrative Review) (No 2) [2010] ACAT 7
Reports:Future Development Proposal for Cuppacumbalong (1994) National Commercial Finance and Smith Kostyrko International
Block 6 Section 10 Tharwa – Cuppacumbalong- Lease and Development Issues (2002) Connell Wagner Pty Ltd
Cuppacumbalong Homestead Precinct – Conservation Management Plan (2003) National Trust of Australia (ACT) for the ACT Heritage Unit
Cuppacumbalong Homestead - Statement of Heritage Impact for Proposed Tourist Development (2007) Eric Martin & Associates
Cuppacumbalong Homestead Development Plan - Opportunities and Constraints Report (2007) Eric Martin & Associates
Cuppacumbalong Homestead Garden Management Plan (2009) Graham Williams and Eric Martin & Associates
Tribunal: Mr Bill Stefaniak Presiding Member
Dr Don McMichael Senior Member
Mr Rod Nichols Senior Member
Date of Orders: 18 October 2010
Date of Reasons for Decision: 18 October 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 8 of 2010
BETWEEN:MALCOLM COOKE, MARILY CINTRA, MYLES GOSTELOW
& PENELOPE COFFEY
Applicants
AND: ACT PLANNING & LAND AUTHORITY
Respondent
AND:
BRUCE GIBBS
FOR BJG HOLDINGS PTY LTD
Party JoinedTRIBUNAL: Mr Bill Stefaniak Presiding Member
Dr Don McMichael Senior Member
Mr Rod Nichols Senior Member
DATE: 18 October 2010
ORDER
The Tribunal orders that the decision under review made on the 28th January 2010 is varied as follows:
THE DECISION is varied so that the sequence of permitted uses under the Crown lease purpose Clause has “agriculture’ placed last and the following proviso is added
FURTHER PROVIDED THAT agriculture shall only be carried out as an ancillary use to any other of the permitted uses; and
That part of the Decision deleting clause 3(i) is to be deleted.
The CONDITIONS OF APPROVAL in part A – A1 are varied as follows
1. Condition of Approval 3 a:
(i)In the definition of “tourist facility” the words “service station” is deleted;
2. Condition of Approval 3b is deleted and the following substituted:
Amend Clause 3(a) to read as follows:
To use the said land in accordance with the approved Master Plan for one or more of the following purposes;
(i)promoting Australian art and craft through the provision of facilities for the creation and making and for the exhibition and sale of works of artists and craftspeople and subsidiary thereto the:
sale of complementary artistic products;
sale of antiques;
sale of cottage garden plants indigenous native plants and associated products;
provision of seminar facilities;provision of restaurant facilities;
(ii) tourist facility;
(iii) residential accommodation only for artists and craftspeople in association with the purposes above, and the lessee or manager;.
(iv) agriculture;
PROVIDED THAT any the tourist facility operated on the land shall be directly related to the use of the river; and
FURTHER PROVIDED THAT any residential accommodation on the land shall be ancillary to the permitted uses or for artists and craftspeople, the lessee or manager; and
FURTHER PROVIDED THAT agriculture shall only be carried out as an ancillary use to any other of the permitted uses; and
ALWAYS PROVIDED THAT the use of the land shall be consistent with both the Master Plan and the Conservation Management Plan for the site as endorsed by the relevant Territory authorities or as varied and endorsed from time to time;3. Condition of Approval 3(f) is deleted:
4. Condition of Approval 3 (h) is amended by:
Deleting from clause 3(r) the word “the’ in the third line;
Deleting from clause 3(s) the words “on the land” and amending the second use of the word “and” in the first line to “an”
………………………………..
Mr Bill Stefaniak
Presiding Member
REASONS FOR DECISION
Introduction
1.Mr Malcolm Cooke, Ms Marily Cintra, Mr Myles Gostelow and Ms Penelope Coffey (“the applicants”) have sought review by the Administrative and Civil Tribunal (“ACAT”) under s 408 of the Planning and Development Act 2007 (“the Act”) of a decision of the ACT Land and Planning Authority (“the respondent”) to approve, with conditions, the variation of the lease of Blocks 177 and 186 Paddy’s River (“the subject land”). On it is located the heritage registered building known as Cuppacumbalong (the homestead of the former Cuppacumbalong grazing property). The party joined, BJG Holdings Pty Ltd, the current lessee of the subject land is the private company of Mr Bruce Gibbs.
2.Block 177 of the subject land is also known as Block 8 of Section 10 Tharwa. In these Reasons, we will refer to it as Block 177. (Block 186 is a small isolated block on which the sewage treatment plant for the homestead is located. It is also known as Block 7 of Section 10 Tharwa.)
Blocks 5, 6, 9 and 10 of Section 10 Tharwa lie adjacent to the subject land to the north-east, east and south-east.
3.The subject land lies within the Murrumbidgee River Corridor and is subject to the River Corridor Policies of the National Capital Plan (‘the NCP”). It also lies within the NUZ4 - River Corridor Zone of the Territory Plan 2008 (“the Territory Plan”) and is subject to the controls specified in the relevant part of section 9.1 of that Plan. A development proposal (including lease variation to allow agriculture and tourist facility) affecting the land is subject to the assessment under the Merit Track.
4.To its north-west lie Blocks 6, 7, 8 and 9 of Section 3 Tharwa. The applicants are the lessees of Blocks 6 and 7 and all are craftspeople or designers. The leases of their blocks limit the users of the block to artists or craftspeople.
5.Mr Gibbs also holds a permissive occupancy over Block 6 Section 10, on which he conducts a chicken raising activity and which he uses for access to the subject land. Some of the Cuppacumbalong out-buildings are located on Block 6, as is a portion of the garden adjacent to the homestead.
6.Mr Gibbs has applied for the direct sale to BJG Holdings Pty Ltd of Blocks 5, 6, Part 9 and 10 of Section 10 Tharwa, but that is a separate matter which is not the subject of these proceedings. However, in advice to the Major Project Review Group in January 2010, an officer of the respondent stated that “the direct sale will not proceed until the Cuppacumbalong lease had been finalised and the Master Plan endorsed by the relevant authorities”.
7.The current lease of the subject land requires the lessee to use the premises only for the purpose of promoting Australian art and craft through the provision of facilities for the creation and making, and for the exhibition and sale, of works of artists and craftspeople and residential accommodation for artists and craftspeople, and the lessee or manager, but permits some subsidiary uses.
8.The decision under review inter alia varied the purpose clause of the lease by removing the requirement to “only” use the premises for promotion of Australian arts and crafts and by adding the additional permissible uses “agriculture” and “tourist facility”. It also deleted a number of sub-clauses which
·limited the area of the premises that could be used for particular purposes;
·required that the premises should be open to the public on particular days and hours approved or specified by the Territory; and
·prohibited the imposition of fees for entry to the premises without the prior written consent of the Territory.
9.An important caveat included in the decision under review was that the approval would not take effect until a number of studies had been undertaken; a Master Plan was prepared and endorsed by the ACT Heritage Council, Territory and Municipal Services and the respondent; a Conservation Management Plan was prepared for the site in conjunction with the ACT Heritage Unit; and a Management Agreement for the management of the heritage significance of the place was prepared and endorsed by ACT Heritage. A Land Management Agreement covering the agricultural uses was also required before the approval became effective. A further condition was that the land was to be used in accordance with the approved Master Plan for one or more of the permissible uses.
10.The matter was heard on 21, 22, 23 and 28 July, and 13, 16 and 24 August 2010. The Tribunal visited the subject land and adjacent blocks on 21 July in company with the parties and their counsel (save Mr R Arthur who joined the proceedings only later). The applicants were represented by Mr G McCarthy of Counsel, the respondent by Dr D Jarvis of Counsel. The party joined was initially represented by Mr B Gibbs, but from 13 August by Mr R Arthur of Counsel.
11.Evidence was given on behalf of the applicants by Mr Myles Gostelow, a furniture designer and craftsman in wood, who is the lessee of Block 6 Section 3 Tharwa and is an applicant in the matter together with his wife Ms Penelope Coffey; Ms Carole Newman, an interior designer who with her husband
Mr Grant Robinson, designs and manufactures furniture and purpose-built individual fit-outs for residential or small commercial premises. Ms Newman and Mr Robinson are the lessees of Block 9 Section 3 Tharwa; Mr Malcolm Cooke, a ceramic artist and potter who is the lessee of Block 7 Section 3 Tharwa and an applicant in the matter; Ms Marily Cintra, a visual artist working in ceramics, sculpture, public art, conceptual art and community cultural development, who is married to Mr Malcolm Cooke and is also one of the applicants; Ms Karen O’Clery, owner of the Narek Gallery, now at Tanja NSW but which was located at Cuppacumbalong from 1975 to 1995 while
Ms O'Clery was lessee of the subject land; Mr Val Jeffrey, owner and operator of the General Store and Post Office at Tharwa; Mr Anthony J Powell, former Commissioner of the National Capital Development Commission (NCDC) and a professional town planner and civil engineer; Mr Geoffrey Campbell, formerly Chief Planner of the NCDC and now Adjunct Professor in Planning at the University of Canberra; and Mr Peter O’Clery, a former officer of the then Commonwealth Department of Capital Territories who had been involved in early decisions about the use of the subject land after its resumption by the Commonwealth. In addition, a witness statement prepared by Ms Alexandra Wass, a photographer who resides on Block 13 Section10 Tharwa with her partner, Mr Karim Haddad, a knife maker, was admitted in evidence, but with the proviso that its evidentiary value would be diminished because of the unavailability of Ms Wass to give evidence in person and to be cross examined.12.Evidence was given on behalf of the respondent by Dr Michael Pearson, Managing Director of Heritage Management Consultants Pty Ltd who is currently Chair of the ACT Heritage Council; and Ms Maggie Chapman, who is Manager of the Leasing Section in the Development Services Branch of the respondent and made the decision under review as delegate of the respondent.
13.Evidence was given of behalf of the party joined by Mr Bruce Gibbs, a cook and restaurateur, who through his company is the current lessee of the subject land; and Mr Graham Williams, the head gardener at Lanyon with responsibility for other ACT garden properties, who had prepared a Cuppacumbalong Garden Management Plan in conjunction wither Eric Martin & Associates.
14.In addition, a large number of documents were tendered in evidence.
A Short History of Cuppacumbalong
15.Established in the 1830s, Cuppacumbalong was one of a series of substantial grazing and farming properties located along the Murrumbidgee River to the south of the present city of Canberra. Together with other nearby properties, it was resumed by the Commonwealth in the early 1970s.
16.In mid 1972 officers of the then Department of the Interior considered possible uses for the resumed homestead which they perceived to have heritage significance and concluded that it should be used for the purposes of promoting Australian arts and crafts. In 1975, tenders were invited for the granting of a lease of the homestead for this and related purposes. Ms Karen Beaver (later Karen O’Clery) operator of the Narek Gallery in Deakin was the successful tenderer.
17.The purpose clause of the lease was restrictive. It allowed the premises to be used “only” for the purposes set out in paragraph 7 above, and from as long ago as 1977 Ms O’Clery sought variation of the lease purpose clause to permit a wider range of uses which would improve the viability of her business. Nevertheless, she established a successful business there, incorporating her Narek Gallery, which she operated for 20 years.
18.Following representations to the Minister by Ms O’Clery in 1980, it was agreed that the Department would assume responsibility for maintaining the lower part of the garden (on Block 6 Section 10) and the water supply to Cuppacumbalong and the adjacent Outward Bound property.
19.During Ms O’Clery’s ownership, Cuppacumbalong became a well known and much visited destination, especially from Canberra residents. It offered exhibitions of works by a wide range of artists and craftspeople, art and craft for sale, access to the heritage building and its attractive and well maintained gardens, as well as a cafe. It was included as an attraction on Tourist Drive 5, together with Lanyon Homestead, Namadgi National Park, Tidbinbilla Nature Reserve and Visitor Centre, and the Canberra Deep Space Communications Centre.
20.Although the heritage values of Cuppacumbalong were recognized from the time of its acquisition by the Commonwealth, and it was included on the Register of the National Estate by the Australian Heritage Commission, it was not until 16 April 2004 that the homestead and its immediate precinct were added to an ACT Interim Heritage Places Register. The Register entry focused on the need to conserve the homestead and its garden, and the need to ensure that any new development did not adversely affect features intrinsic to the significance of the place and was designed and located so as to conserve the rural landscape character of the precinct.
21.A feature of the arrangement was that Ms O’Clery made space available at Cuppacumbalong for craftspeople to work there – initially woodworkers and a potter – in some of the outlying buildings of the homestead, but these persons lived some distance away.
22.In 1980, Ms O’Clery conceived the idea that leases should be made available on land adjacent to Cuppacumbalong to provide for resident craftspersons, which would help to create a craft village. The Minister of the day endorsed this suggestion, and it was agreed that Ms O’Clery should be allowed to nominate suitable craftspersons to whom such leases should be granted.
23.Four such leases were granted during the 1980s. The purpose clause of these leases was
(c) To use the premises only for the purpose of a single private dwelling house and the production of craftware for sale from the land or elsewhere provided that where the Lessee carries on his full time occupation calling or trade as craftsman elsewhere the land may be used for a single private dwelling house only.
Only two of the original lessees, Mr Malcolm Cooke, and Ms Carole Newman and Mr Grant Rollinson, are still there. The other two were acquired from the original lessees by the current craftspeople (Ms Alexandra Wass and
Mr Karim Haddad in 2002; Mr Myles Gostelow and Ms Penelope Coffey in 2006).24.The evidence indicated that during her time at Cuppacumbalong, Ms O’Clery rarely made a profit, in most years operating at a small loss, partly because of the cost of maintaining the homestead, the surrounding buildings and the garden. She made numerous approaches to the Government during the early 1990s to try to find some way of making the business more viable, in particular by varying the restrictive purpose clause to allow a wider range of activities. By 1995 she decided to move on and sold the business and the lease to Mr and
Mrs R Ackhurst. The Ackhursts ran the property successfully for a few years, but by August 1998 were having difficulty making a profit and suggested that a more flexible lease purpose clause would help.25.By 1999, the Ackhursts tried to sell the property because of their inability to run the business profitably but could not, at that time, find a buyer. They stated that the major hurdle to a sale was “the restriction placed on the nature of the business that can be conducted on the premises” and asserted that “the real estate market is giving a clear message that in its present mode of operation Cuppacumbalong has had its day…In 1975 it was a unique and innovative concept, when the Canberra region had much less access to high quality arts and crafts than is the case now. If anything, the Australian crafts market is approaching saturation.” They concluded “we cannot afford to run the business long term, nor can anybody else under the present lease conditions”. To exacerbate their problems, in September 1999 the ACT Government withdrew the services that it had until then provided to help in maintaining the historic garden.
26.Nevertheless, in May 2001, Mr Bruce Gibbs, through his company BJG Holdings Pty Ltd, bought the lease and business from the Ackhursts and he and his wife commenced running the café and arts and craft gallery. They made some changes to the business arrangements, including relocating the gallery/craft shop to a refurbished cottage and expanding the hospitality business to a size that would be attractive for weddings.
27.Mr Gibbs also holds a permissive occupancy of Block 6, Section 10, Tharwa, for which he pays rent. He uses a portion of this land to raise chickens. When
Mr Gibbs sought to have “agriculture” added to the permissible uses, he was required by section 283 of the Act to enter into a Land Management Agreement with Environment ACT, governing the permitted agricultural uses of the land. This agreement was approved on 12 December 2007 and covers Blocks 5, 6, 8 (Block 177) part of 9 and 10, Section 10 Tharwa.28.Mr Gibbs asserted that the business ran well until the bush fires of January 2003 and the subsequent closure for some months of Tidbinbilla and Namadgi National Park Visitor Centre on Tourist Drive 5, as well as the closure of the Tharwa bridge for repairs in 2004. Subsequently business declined and by 2006 he decided to look for other avenues to survive the downturn. He effectively shut down the business in 2006, following closure of the Tharwa Bridge for an extended period.
Mr Gibbs applications to vary his lease
29.Mr Gibbs first sought Development Approval to vary his lease on 18 July 2001 (DA 20012888, 20012888A and 20012888B) when he proposed an increase in the area of the homestead that could be used for residential accommodation to 45%, an increase in the area allowed to be used for restaurant from 100 m2 to 200m2 and to permit the eastern verandah of the homestead to be used for restaurant purposes. In addition, approval to internal alterations to the existing building, retrospective approval to an existing septic system, and an existing external toilet, and approval for associated car parking on Block 6 Section 10 Tharwa was sought. This DA was approved with conditions on
3 December 2001 by the then Commissioner for Land and Planning. There was no evidence that this variation was ever registered.30.Mr Gibbs lodged a number of further Development Applications from 2006 onwards, which he asserts were “in order to keep Cuppacumbalong viable and support the large and inhibitive cost of the garden and heritage building maintenance”. The first of these (DA200603685 and 200603685A) was lodged on 20 October 2006 and sought to include “agriculture” as one of the permitted used of Block 177 and the deletion of clause 3(b) which restricted the amount of the homestead that could be used for residential purposes to one third of the building. This DA was approved on 17April 2007 with the area of the homestead available for residential purposes increased to 49%, agriculture added to the permissible uses, and a clause defining “agriculture’ inserted. The deletion of clause 3(b) was not agreed because it would have allowed all of the homestead to be used for residential purposes. This would have been inconsistent with the Control 2.1 in the River Corridor Land Use Policies, part B13 of the then operative Territory Plan which did not permit residential use of the subject land.
31.In approving that lease variation, the decision maker noted that
The proponent provided a master plan for the extended site (including blocks 5, 6, 10 and part of 9) that includes provision of a restaurant, a gallery, studios, associated residences, additional orchids (sic), organic market gardens and chicken pens. The additional land is not yet granted to the proponent and the current proposal doesn’t include sufficient other facilities to ensure that the site will be used for the primary purpose of promoting Australian art and craft.
32.On 27 March 2008, Mr Gibbs lodged a further Development Application (DA 200700771) which sought to vary the purpose clause of the lease to remove the requirement to only use the premises for the purpose of promoting Australian arts and crafts, but instead to make it one of four permissible uses (promoting Australian arts and crafts; agriculture; tourist facility; and residential accommodation only for arts and craftspeople and, in association with the purposes above, for the lessee or manager. It also sought to delete a number of sub-clauses that imposed restrictions on the use of the homestead, and specified the need for approvals for any facilities for the sale of plants, the hours and days on which the “centre” was to be open and for the charging of any fees. This DA was partially approved on 26 September 2008; the proposed removal of the restriction on the area of the homestead to be used for residential accommodation was not approved and it remained at one third of the building.
33.On 16 October 2008, Mr Gibbs sought reconsideration of this decision under
s. 246 of the Land (Planning and Environment) Act 1991 on a wide variety of grounds. However, the delegate of the respondent reconfirmed the decision to refuse the elements of the application relating to the removal of clause 3(b) but did remove the requirement for the lessee to undertake an assessment of threatened or endangered species as part of the environmental assessment. Otherwise, the decision of 26 September 2008 remained in place.34.On 10 August 2009, Mr Gibbs lodged yet another Development Application (DA 200915227) seeking to have the 49% residential use of the homestead restored (as approved for DA 200603685A) and for agriculture to be included as a stand-alone use. This proposal was submitted for consideration by the respondent’s Major Project Review Group on 13 January 2010 with a recommendation that the lease variation be approved but that it should not take effect until a range of studies had been completed, a Conservation Management Plan developed, a Master Plan prepared and endorsed by the ACT Heritage Council, Territory and Municipal Services (Environment) and the ACT Panning and Land Authority, which would, in conjunction with the Conservation Management Plan, form the basis for future development of the site. The Major Project Review Group supported this recommendation. The Development Application was then approved by the decision maker, Ms Maggie Chapman on 28 January 2010. It is this decision which is under review by the Tribunal.
The Standing of the Applicants and ACAT’s jurisdiction
35.In his submissions on behalf of the party joined at the end of the hearing of evidence, Mr Arthur raised the question of whether the ACAT had jurisdiction to hear the matter. He drew attention to the provisions of the Act, where s 408 provides that “an eligible entity” may apply to the ACAT for review of a “reviewable decision”. While the decision in this case for which review has been sought is a “reviewable decision”, he questioned whether the applicants were “eligible entities”.
36.“Eligible entities” are defined in s 407 as
for a reviewable decision – each entity mentioned in schedule 1 column 4 in relation to a reviewable decision is an eligible entity
Schedule 1 column 4 includes
a decision under s 162 to approve a development in the merit track, whether subject to a condition or otherwise, if-
(a) the application was required to be notified under s 153 and s 155, whether or not it was also required to be notified under s 154; and
(b) the application is not exempted by regulation
and for such a decision, an eligible entity is
An entity if-
(a)the entity made a representation under s 156 about the development proposal or had reasonable excuse for not making a representation; and
(b) the approval of the development application may cause the entity to suffer material detriment.
37.In the present case, the decision was a decision made under s 162 and required to be notified under ss 153 and 155 and was not exempted by regulation.
Mr Arthur submitted that even though each of the applicants had made representations about the development proposals, its approval would not cause them to suffer “material detriment” because they were excluded by the provisions of s 419 (2).38.“Material detriment: is defined in ss 419 (1) and 419 (2) of the Act. as follows:
(1) In this Act” material detriment, in relation to land--an entity suffers material detriment in relation to land because of a decision if –
(a) the decision has, or is likely to have, an adverse impact on the entity’s use or enjoyment of the land; or
(b) for an entity that has objects or purposes – the decision relates to a matter included in the entity’s objects or purposes.
(2) However, an entity does not suffer material detriment in relation to land because of a decision only because the decision increases, or is likely to increase, direct or indirect competition with the business of the entity or an associate of the entity.
39.Mr Arthur noted that the applicants did not assert, nor was there any evidence, that they would be adversely affected or that their amenity was diminished in any physical way. However, he drew attention to the evidence of the applicants to the effect that the closure of Cuppacumbalong had affected the viability of their businesses, because it had provided the attraction for visitors to come to the area. In his submission, this showed that the competitive edge enjoyed by craft outlets nearer to centres of population (an advantage neutralized when Cuppacumbalong attracted prospective buyers to the area) was restored when Cuppacumbalong ceased operation and that the applicants wanted to regain the “shield” that Cuppacumbalong provided to them. In other words, the decision was likely to increase competition from other arts and craft centres in and around the ACT.
40.Mr Arthur further submitted that the word “only” in s 419 (2) allowed for the possibility that other planning considerations might give the applicants standing. In his view, unless the applicants could identify and provide evidentiary support for some factor amounting to material detriment that went beyond mere competition, they could not be eligible entities.
41.Mr Arthur referred to the High Court’s decision in Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, in which Barwick CJ (at 681) opined that
economic competition feared or expected from a proposed use is not a planning consideration within the terms of the ordinance governing this matter.
However, in his separate judgment, Stephen J stated (at 687) that while he agreed with the Chief Justice, he added the following qualification:
If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning.
42.There was no evidence, Mr Arthur said that there was no evidence that the Tharwa community depended on the applicants business for their craft wants. What evidence there was suggested that Canberrans were quite mobile and well served with many craft outlets throughout the ACT.
43.Although the applicants contended that the lease over Cuppacumbalong and their own blocks were granted for the purposes of promoting arts and crafts thereby creating an “arts and craft precinct”, Mr Arthur submitted that the “public policy” which might have led to the grant of a lease at one time is not relevant to a decision to alter or vary a lease at a later time, relevant considerations being limited to “planning issues” citing Helkban & Ors and Commissioner for Land and Planning [2002] ACT AAT 12 (9 April 2002) at [24]-[25] as authority.
44.In Helkban, the applicants were operating businesses of the same kind as would have been permitted under the varied lease and located in the same neighborhood. They contended that those parties would be in a competitive relationship, and that trade rivalry was sufficient to enable a conclusion to be drawn that approval of the development application would affect the interests of the two applicants.
45.The former ACT Administrative Appeals Tribunal (“the AAT”) rejected the applicants’ argument, relying on a variety of case law but in particular the decision of Higgins J in Jewell Food Stores Pty Ltd and Ors v Minister for Environment, Land and Planning & Ors (1995) 122 FLR 269, where it was held that even though the applicants in that case had shown that the development proposal caused an economic impact upon them and that it was possible that the impact may be adverse, such an effect was not sufficient to be a satisfactory basis for an appeal. His Honour also considered that neither the applicants nor any of their customers had any legitimate expectation that competition would be restricted so as to protect their economic interests and observed that such an expectation might be contrary to the public interest embodied in the Trade Practices Act 1974 (Cth).
46.The applicants in Helkban also relied on an established government policy to argue that the original lease had been granted in pursuance of that policy, a view which was supported by the then Planning and Land Management authority (“PALM”). However the respondent (The Commissioner for Land and Planning) rejected the PALM view because he had no evidence that PALM had attempted to enforce the conditions of the original lease and did not think the change would unduly impact on the government policy.
47.It was further argued in Helkban that the applicants’ private interests coincided with the public interest in ensuring the proper management of public assets, and the public interest required that any lease granted should be on terms that involved payment of market value for the lease. In that case, a change-of-use charge that would otherwise be payable had been waived.
48.The AAT rejected the proposition that the issues of competitive advantage and protection of public assets were relevant to a consideration of the development application. It took the view that there needed to be a coincidence between the interests of the applicants and the statutory purpose which the respondent was required to observe in arriving at a decision to approve the application – in that case, an application for the subdivision of land. However, the AAT left open the question as to whether the applicants would have had standing in relation to an earlier variation of the lease.
49.In the present case, we have carefully considered Mr Arthur’s submissions and the case law, but at this stage we cannot conclude that the applicants lack standing. There is no question that they are not all entities who made representations nor is it suggested that the decision would have any adverse physical impact on their use or enjoyment of their land.
50.The meaning of “material detriment” was reviewed at length by the ACAT in Watson v ACT Planning and Land Authority & Ors (Administrative Review) (No 2) [2010] ACAT 7, where President Spender concluded that the statutory provisions of the Act required that “material detriment” must be established, which is detriment of a real and not trivial or imaginary kind, and that the detriment must not be subjective but must be detriment in an objective and reasonable sense.
51.However, in that case, the interpretation of s 419 (2) was not considered. The questions to be decided are whether the decision under review has or is likely to have an adverse impact on the applicants’ use and enjoyment of their land and whether their objection to the decision is based only on fear of competition.
52.Section 419 (2) makes it quite clear that mere fear of competition from a proposed development is insufficient to give standing. But in this case, we do not accept that the applicants fear any competition from what might result from the lease variation. On the contrary, they want to see an arts and craft gallery for the promotion and sale of Australian arts and craft maintained. In our view, their concern is to maintain the financial viability of the community of businesses located at Tharwa which, they contended, had suffered from the closing of the arts and craft gallery at Cuppacumbalong. They believe that, under the lease as varied, Mr Gibbs would not be obliged to maintain an arts and crafts centre.
53.Each of them gave evidence that the part of their businesses derived from visitors to Tharwa, had declined in recent years. In some cases, they had established galleries on their blocks from which their works were sold to visitors; in others, the visitors to their workshops resulted in new customers. Most of this passing trade was derived from visitors to Cuppacumbalong. While each of the applicants had adapted their businesses to the changed circumstances in one way or another, they were all of the view that restoring Cuppacumbalong to a viable arts and craft business attracting visitors would increase their economic viability.
54.The manager of the Tharwa General Store, Mr Val Jeffrey, gave evidence of the drop in the level of business in his store over recent years, which had been most marked between 2003-4 and 2005-6. He attributed most of this fall-off to the closure of Cuppacumbalong, particularly as an attraction to users of Tourist Drive 5. He said that previously 90% of his business had come from visitors to Cuppacumbalong. He contended that
If Cuppacumbalong is not required to re-open its doors to the touring public and once again be the drawcard for the village, my business will continue to suffer and could be forced to close, which would be a dreadful loss to the community.
He considered it important to the viability of Tharwa as a community that Cuppacumbalong be re-opened for its original intended purpose.
55.It seems to us that this situation falls fairly and squarely within the exception identified by Stephen J in Kentucky Fried Chicken. Here we have a business community which, until relatively recently, has enjoyed the benefit of a major tourist attraction, which the applicants believe may be put in jeopardy if the decision under review is confirmed. To that extent, it is a planning matter and is not simply a matter of fearing competition.
56.Mr Arthur’s submission that the applicants are already suffering competition from other arts and craft centres in the vicinity of Canberra and that they want the Cuppacumbalong arts and craft centre restored in order to retain their former competitive advantage does not seem to us to be what s 419 (2) is about. The section is specifically directed at potential competition from a proposed development, and should not be read so as to extend to the broad competition that arises in any field of business from other regional centres of similar financial activity.
57.We are satisfied that the applicants believe that they will suffer material detriment of a real and objective kind, but this remains to be tested by the evidence. It is possible that the evidence will show that the decision under review will not have any detrimental effects on the applicants, in which case they would not have standing. Consequently, we cannot conclude that the applicants have standing to seek review of the decision and that the ACAT has jurisdiction to hear the matter until the substantive issues in the case have been resolved. Unless the ACAT has jurisdiction, it cannot confirm, vary or set aside the decision under review.
The issues for consideration
58.In order to come to grips with the substantive issues in this case, it is necessary to outline just what it is that the party joined seeks to do in the event that the decision is confirmed, what it is that the applicants object to about the decision under review, and the grounds on which the respondent decided to approve the lease variation.
59.Mr Gibbs is a chef and successful restaurateur by profession. He said he had been interested in buying Cuppacumbalong since 1998 and in 1999 had made inquiries of Mr Peter Freeman, a heritage architect, about the cost of preparing a conservation management plan for it. He exchanged contracts to purchase the lease and business in 2000 and settled in July 2001. At the time he saw it as providing a unique opportunity, based on its address to the Murrumbidgee River and its proximity to Canberra.
60.From 2001 until 2006, he and his wife had operated Cuppacumbalong, albeit with a number of changes from the way it has been run by previous owners. They had transferred the craft gallery/shop to a refurbished cottage/garage to allow the main homestead to be used for an expanded hospitality business catering for weddings and small conferences. The hospitality business had survived despite several closures of the Tharwa bridge, but any earnings had been used in maintenance of the gardens and heritage building. However he had closed the gallery when business declined to an unviable level and had closed the restaurant in 2004 when he became aware of the problem of rising damp. He had spent in excess of $50,000 so far in attempting to deal with the rising damp and there was more work to be done to return the homestead to a condition where it could be reopened. He hoped to have this work completed by the end of this year.
61.In order to rationalise the boundaries and provide for further development of Cuppacumbalong, Mr Gibbs had sought to acquire a number of adjacent parcels of land which formed the curtilage of Block 177 (Blocks 5, 6, 10 and a small piece of Block 9 Section 10 Tharwa) but a decision on the direct sale of these lands awaits finalisation of this lease variation. In order to purchase these blocks by direct sale, he had to undertake studies to demonstrate the uses to which the land would be put, so in October 2006 he had engaged Eric Martin and Associates who by early 2007 had developed a Cuppacumbalong Homestead - Statement of Heritage Impact for Proposed Tourist Development and a Cuppacumbalong Homestead Development Plan - Opportunities and Constraints Report. In 2009 a Cuppacumbalong Homestead Garden Management Plan had also been prepared, by Mr Graham Williams and Eric Martin and Associates following receipt of an ACT Heritage Grant.
62.Mr Gibbs’ evidence is that he had lodged the Development Application which is the subject of the decision under review (and earlier ones) because the conditions of the current lease are so restrictive as to make it impossible to run a business at Cuppacumbalong that will support the high cost of maintaining the heritage property and the associated garden. The approval under review would allow him the necessary flexibility to develop business activities that could achieve this.
63.He described his vision for the property as a tourist facility demonstrating heritage values, close to the city of Canberra. He envisaged a range of possible developments as outlined in the brief for Eric Martin and Associates (covering Blocks 5, 6 and 7 as well as Block 177), including retention of current uses of the existing building (including the use of the homestead as a residence with commercial kitchen); a restaurant plus detached residence located on block 177; a gallery plus detached residence located on block 177; two studios for artisans; and associated tenant and public parking. It was also intended to explore the use of Block 5 for tourist residential accommodation.
64.The Cuppacumbalong Homestead Development Plan included two possible concept plans for the site that would accommodate these developments. In cross-examination, Mr Gibbs said that these plans remained the basis of his intentions and that the documents would form part of his response to the conditions of approval to the lease variation, but guided by other studies to be undertaken.
65.He asserted that public access would be maintained because it was necessary for the commercial viability of a tourist business, although the hours that the various elements would be opened would likely vary. The main new developments proposed (a new gallery, a coffee shop and bakery) would be close to the road and these would probably be opened for 5 to 7 days a week.
66.The applicants’ main concerns were that the terms of the approval under review removed any obligation on Mr Gibbs to maintain a centre promoting Australian arts and crafts, and they were not persuaded that he would do so if the decision was confirmed. They considered his actions since taking over Cuppacumbalong (such as putting up locked gates with signs stating that the property was closed, closing the gallery/craft shop and closing the restaurant) were all indicative of a long-term plan to exclude the public and effectively to obtain private use of Cuppacumbalong homestead. They also feared that the inclusion of the use “agriculture” in the lease purpose clause might allow him to establish some sort of expanded agricultural enterprise, if the adjacent blocks were eventually leased to him.
67.They rejected the proposition that running Cuppacumbalong under the existing (unvaried) lease was not viable, and contended that Mr Gibbs had not provided any evidence in support of his claim that it was not viable if clause 3(a)remains unchanged. Mr McCarthy submitted that the evidence showed that Cuppacumbalong had operated successfully for 30 years, notwithstanding the setbacks arising from the 2003 bushfires and the various bridge closures, and in the applicants’ view it would remain viable in the hands of a lessee with a passion for, and knowledge of, the arts and crafts, such as Ms O’Clery had been. He observed that earlier studies by National Commercial Finance and Smith Kostyrko International (December 1994) and by Connell Wagner (2002) had both put forward business plans to ensure viability in accordance with
clause 3(a) of the present lease.68.The applicants contended that the cost of maintaining the heritage values of the homestead and garden were a proper basis for seeking government support, in the same way as similar properties such as Lanyon, Gold Creek and other heritage listed properties were supported by the government.
69.Mr McCarthy submitted that the decision to approve variations to the lease purposes was premature. The lease should remain in its existing terms until the party joined has demonstrated conclusively that the current terms make it non-viable from an objective standard. If and when this is done, the studies required by the conditions proposed by the respondent should be completed and only when development plans that will bring long-term viability to the homestead and its grounds are approved by the respondent, should the lease be varied to provide for use of the land in accordance with those plans.
70.Ms Chapman contended that the proposed lease variation was consistent with both the Territory Plan and the NCP. The former included “agriculture” and “tourist facility” while the latter included “agriculture” and “special development” as permissible uses. Special Development in the NCP is defined as
Land set aside to be used for commercial and community/recreation/tourist activities directly related to the use of the river
and Block 177 is within a Special Development Area in the NCP.
71.She contended that neither the Territory Plan nor the NCP created, in law, an arts and craft precinct for Tharwa. While a Policy Plan for Tharwa had been approved by the NCDC in 1983 in which the uses of the area were described as
Tourist and institutional uses for commercial tourist-oriented
recreational or craft developments of a type compatible with the rural
nature of the surrounding area
she considered that Policy Plan now had no effect.
72.In arriving at her decision to agree to the lease variation, she had considered what might happen to Cuppacumbalong homestead if the lease was not varied to broaden the range of uses. She believed that conservation of heritage items in private ownership depended upon the flexibility of the planning system to provide for adaptive re-use and an income stream which is sufficient to ensure the long term conservation of the heritage buildings.
73.Ms Chapman said that while she was aware from reading the files that
Ms O’Clery and the Ackhursts had asserted that the present lease purpose clause made their businesses unviable and that Mr Gibbs had made similar claims, she had not considered it incumbent upon her to establish on some objective basis whether that was so, nor had she concluded that it was so. In her view, the agencies to whom she had referred the proposal, in particular the Chief Minister’s Department, were the ones who should have advised her if they considered that the current arrangements remained viable. In any case, if it was viable, an arts and crafts centre remained an option for Mr Gibbs under the proposed lease variation.74.She said that the conditions of approval were considered to address possible impacts of the proposal (as required by s 120 (f) of the Act) by requiring management plans to be approved by relevant agencies including the Conservator of Flora and Fauna and that these were to be finalised before any works occurred.
75.They include an Archaeological (European and Aboriginal) Assessment of the site endorsed by ACT Heritage; an Environmental Assessment to determine land capability with respect to the provision of potable water supply and effluent management within the lease boundary; a Master Plan to identify all current and proposed uses, with an indicative time frame for each development stage, to be endorsed by the ACT Heritage Council, Territory and Municipal Services (Environment) and the respondent; a Conservation Management Plan for the site in conjunction with the ACT Heritage Unit; a Management Agreement for the management of the heritage significance of the place, to be approved and endorsed by the ACT Heritage Council; and a Land Management Agreement approved by the Conservator , as required under s 283 of the Act for any lease which includes “agriculture’ as a permissible use.
76.She considered that an environmental impact statement was not required at this stage as the matter involved only a lease variation, not any physical construction. All the studies required have to be completed and where indicated, approved and endorsed, before the lease variation will take effect. Then any new proposals would be subject to normal development approval.
Consideration of the Issues
77.It will be convenient to deal with key issues that have been raised seriatim as follows:
a.Is the proposed lease variation consistent with the Territory Plan and the National Capital Plan?
b.Do the applicants have any basis for contending that Cuppacumbalong forms the centre piece of an arts and crafts precinct at Tharwa?
c.Does the evidence demonstrate that it is unviable to operate a business whose primary purpose is the promotion of Australian arts and crafts at Cuppacumbalong and is that a necessary pre-condition to varying the lease?
d.Are the terms of the proposed variations to the lease appropriate and if not, what changes should be made to them ?
e.Will the proposed lease variation result in material detriment to the applicants?
Is the proposed lease variation consistent with the Territory Plan and the National Capital Plan?
78.Dr Jarvis submitted that the proposal is not inconsistent with any of the NUZ4 zone objectives of the Territory Plan. In particular, it is consistent with objective (a) to “conserve the ecological and cultural values of the ACT’s major river corridors” because in his submission, a commercially viable purpose clause is the necessary basis for maintenance of the heritage buildings and gardens while they remain in private hands.
79.He observed that “agriculture’ and “tourist facility” were permitted uses in the NUZ4 zone of the Plan and noted in passing that “craft workshop” is now a prohibited use within this zone (see s 136 of the Planning Act and the NUZ4 Development Table) although existing uses are preserved by the operation of s 201 of the Planning Act.
80.The Tribunal notes that tourist facility is defined in the Territory Plan as
the use of land for providing entertainment, recreation, cultural or similar facilities for use mainly by the general touring or holidaying public and may include a restaurant, cafe, bar, service station, tourist accommodation and the retail sale of arts and crafts, souvenirs, antiques and the like
and sees no conflict between this definition and the proposed developments foreshadowed by Mr Gibbs, save that it would not consider a service-station to be an appropriate use of the subject land.
81.Agriculture is defined in the Plan as
broadacre animal farming, crop and pasture production, and horticulture for commercial wholesale production, but does not include animal husbandry or any cultivation or animal farming carried out primarily for the personal enjoyment of, or consumption by, the owner(s) or occupant(s) of land.
We note that any lease in which “agriculture” is a permitted use becomes
rural lease and is required by s 283 of the Act to be subject to a Land Management Agreement approved by the Conservator of Flora and Fauna. Such an agreement currently exists between Mr Gibbs and the Conservator (signed in December 2007) covering Blocks 177 as well as Blocks 5, 6, part 9 and 10. It authorises him to maintain up to 300 chickens, 15 sheep and 2 cattle on the land. It was apparently prepared in anticipation of the proposed change in lease purpose clause for Block 177. Why it also covers the Blocks which Mr Gibbs seeks to purchase is not explained, but we presume it is in anticipation of the direct sale of these blocks to Mr Gibbs. Whatever the reason, given its heritage values Block 177 is clearly unsuitable for any substantial agricultural use.
82.The proposed lease variation must also be consistent with the provisions of the NCP. The subject land is located within the National Capital Open Space System (NCOSS) under the River Corridors land use category (Murrumbidgee River Corridor) in which conservation of its natural and cultural values is the primary goal. The policies are set out in section 8.6.3 of the NCP where the range of permitted uses include “agriculture” and “special development” which includes inter alia tourist accommodation and rural conference centres. As noted in paragraph 70, the subject land is within a designated Special Development Area. However, one of the policies for such an area is
Special development areas to be used for commercial and community/
recreation/tourist activities directly related to the use of the river
83.Dr Jarvis said that the phrase “directly related to the use of the river” has been included in both the 2008 and the current lease variation approvals in relation to any “tourist facility operated on the premises”. He submitted that by their actions, both the former National Capital Development Commission and its successor, the National Capital Authority regarded this phrase as permitting a restaurant and gallery outlet at Cuppacumbalong, even though these uses had no connection with the river in a literal sense. He submitted that their proximity to the Murrumbidgee River (about 200m to the east) must have been seen as sufficient to meet this requirement. He urged this Tribunal to adopt that view, as any other would be impracticable.
84.Mr Powell contended that an environmental impact assessment of the possible impacts, as required by s 120(f) of the Act, should have been undertaken before any lease variation was approved. He considered that the respondent, by placing too much emphasis on permissible uses, had ignored the policy requirements of the Murrumbidgee River Corridor as part of the NCOSS that, he contended, were the basis of the conditions of the original lease. The NCOSS policies were endorsed as NCDC policy in its 1984 Metropolitan Policy Plan/Development Plan which included special provisions for Cuppacumbalong. He said its homestead, gardens, outbuildings and archaeological artefacts were recognised as having important heritage significance that could be recognised and made publicly accessible by the introduction of the arts and crafts centre proposed by Ms O’Clery. He said that the 1995 lease and the current lease are an accurate reflection of the NCDC’s planning policies that continue to persist in the provisions of the NCP. In his view, the essential elements of the Village of Tharwa Policy Plan have been incorporated into the NCP.
85.He said that these policies are also reflected in the Objectives of the NUZ4 – River Corridor Zone. He contended that the proposed changes to the lease were not consistent with the conservation of cultural values (objective (a)) that the type of development proposed was not sustainable (objective (c)) and was contrary to the purposes for which the arts and craft precinct involving a number of adjacent properties had been developed; and that the proposed development was not compatible with contiguous land uses and associated social and economic inter-dependencies that have developed over the years (objective (e)).
86.Mr McCarthy did not contend that the proposed lease variation would be inconsistent with either the Territory Plan or the NCP and the Tribunal accepts the view advanced by Dr Jarvis regarding the meaning of “use of the river”. We can see nothing in the proposed lease variation itself that is inconsistent with the objectives of the NUZ4 -River Corridor Zone such as Mr Powell suggested.
87.We conclude that the proposed lease variation is not inconsistent with either the Territory Plan or the NCP.
Do the applicants have any basis for contending that Cuppacumbalong forms the centre piece of an Arts and crafts precinct at Tharwa?
88.The applicants contended that Cuppacumbalong constituted the hub of an arts and crafts precinct at Tharwa and that this should remain as its pre-eminent role. Mr Powell contended that the creation of such a precinct had been an NCDC policy but there is no documentary evidence that supports this claim. While it is clear that the original lease to Ms O’Clery was intended to see it utilised as an arts and crafts centre and that Ms O’Clery was the instigator of the idea of allocating leases of adjacent blocks to craftspeople, some of whom were then working at Cuppacumbalong, nowhere in the documentation is there reference to any intention to establish a “precinct”. None of the relevant planning instruments (including the Village of Tharwa Policy Plan) refer to such a “precinct”.
89.Mr Arthur submitted that while there was an observable intent behind the various grants, the actual terms of the leases do not bear out the importance that the applicants seek to attach to it. They reflect an intention to support an idea of a particular person (Ms Karen O’Clery) but more the person than the idea. The implementation of the idea had the effect of facilitating a relationship but not to require it – it was an exercise in social, but not planning, policy. He submitted that, as the evidence shows, the idea was to last only so long as a person such as Ms Karen O’Clery ran Cuppacumbalong. Planning, he submitted, is not concerned with personalities but with land use. He conceded that it was possible that the applicants may be able to establish that the leases were granted in circumstances that amounted to a “scheme of development” giving them equitable rights but submitted that such a scheme (sometimes referred to as a “private planning scheme”) was the province of property law and thus beyond the jurisdiction of the Tribunal (Cousin & Anor v Grant & Ors (1991) 103 FLR 236).
90.The Tribunal accepts that while it may have been in the minds of those responsible for offering the leases that the new lessees would have a business relationship with Cuppacumbalong, the individual leases make no reference to any such relationship, nor was there any requirement for the lessees to display or sell their products at Cuppacumbalong, and in fact most of them ceased to do so about 1995. Only Mr Karim Haddad has sold his products there during Mr Gibbs’ ownership.
91.Dr Jarvis submitted that, if any representations were made to those taking up the new leases about the future of Cuppacumbalong, they cannot have a binding or fettering effect on the exercise of the statutory power to decide an application to vary a lease (citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 17 and Minister for Immigration v Kurtovic (1990) 92 ALR 93 111 as authority).
92.We are satisfied that no “arts and craft precinct” has been established on any statutory basis and that this cannot be a matter that should be decisive when dealing with a proposal to vary the lease of Block 177.
Does the evidence demonstrate that it is unviable to operate a business whose primary purpose is the promotion of Australian arts and crafts at Cuppacumbalong and is that a necessary pre-condition to varying the lease purpose clause?
93.Much evidence was given about the viability of operating an arts and craft centre at Cuppacumbalong. Ms Chapman said she was aware that both Ms O’Clery, in 1994, and the Ackhursts, in 1998 and 1999, had written to the Department claiming that operating Cuppacumbalong under the current lease conditions was not viable and that Mr Gibbs claimed that he had lodged several Development Applications (see para 30 – 34 above) in order to keep Cuppacumbalong viable. She did not consider that she had any duty to establish whether this was so or not before agreeing to the lease variation.
94.In her witness statement. Ms Chapman referred to the fact that since the early 1990s, there had been number of closures of services stations in local centres in Canberra, because they were unviable. Service station lease purpose clauses allowed for only a single use and the leases had subsequently been varied to allow for other uses (often residential development). She saw these as analogous to the case of Cuppacumbalong.
95.Dr Jarvis submitted that, as a general principle, the planning system seeks to ensure that uses of land are not unduly restricted and that policy has been embodied in land and planning legislation since at least 1936, in the form of a statutory lease variation process. In relation to commercial land, this principle means that the planning system does not attempt to determine what commercially-viable uses are, but merely to ensure that there is a reasonable range of uses available for commercial activity.
96.He submitted that this principle had been applied in many cases where commercial land is proposed to be re-developed, where the previous uses (art gallery, service station, shop) had become unviable and alternative uses have been allowed.
97.In the present case, Ms O’Clery, the Ackhursts and now Mr Gibbs, the actual operators of the businesses, had all complained of non-viability and the decision maker was entitled to draw from this an inference about the viability of the lease. The evidence, he said, indicated that the single narrow primary use of the subject land, based on display and sale of Australian arts and crafts, had not been commercially viable for some years.
98.Mr McCarthy submitted that the decision maker, and now the Tribunal, needed to be satisfied on objective and sufficient evidence, that the existing purpose clause (and related clauses) provided for a use (or uses) of the land that was no longer viable and that any proposed alternative purpose clause would restore or create an effective use (or uses) of the land. In his submission that had not been done.
99.He said that Mr Gibbs had given no evidence, either in writing previously or orally, that Cuppacumbalong is not viable under the existing clause 3(a) of the lease. By contrast Ms O’Clery‘s oral evidence was that Cuppacumbalong would again be viable in the hands of a person prepared to make a commitment to its ideals. The evidence of Mr and Mrs Ackhurst’s views should be discounted as they were not called to give evidence, but in any case they sought only flexibility with the lease terms and did not claim that the property was no longer viable for the promotion of Australian arts and craft.
100.Mr McCarthy further submitted that there was no substantial evidence that Cuppacumbalong would become viable under the proposed varied lease terms. He observed that future actual uses of Cuppacumbalong would depend on the various documents, yet to be written, required by paragraphs A1. 1(A) to (F) of the decision under review, consequently it was impossible for the Tribunal to know whether or not any permissible activities would be viable.
101.He submitted that the Tribunal should decide that the lease should remain in its existing terms unless and until the lessee has demonstrated conclusively that the lease according to its existing terms is not viable from an objective standard, having regard to the significance of its intended unique and existing terms, and only if and when that has been done should consideration be given to varying the lease in accordance with development plans, reflecting the outcome of the studies that have been proposed, that would bring long-term viability to Cuppacumbalong and its grounds.
102.Mr Arthur submitted that a lack of viability of existing uses was not a prerequisite for a change to a new use. He said it never has been in the ACT (citing Morpath Pty Ltd v ACT Youth Accommodation Group Inc & Ors (1987) 16 FCR 325 as authority). In Morpath, the ACT Appeal Court set aside a decision of Gallop J in the ACT Supreme Court who had held that
It was not enough merely to show that the proposed user was reasonable; it was necessary to show that no reasonable use of the land was possible unless the change applied for was granted.
The Appeal Court held that this test was too restrictive and that all that was required was for the Court to be satisfied merely that the proposed use was a reasonable user and that that user would be impeded if the Court did not approve the variation proposed.
103.Mr Arthur observed that there were circumstances – eg a lease for the purpose of a community facility – in which a lessee must show that there is no longer a need for the use before being allowed to adopt another use. He submitted that there are particular planning objectives in play in such cases, but they do not apply in this case.
104.Having carefully considered the submissions of Counsel, we are satisfied that the position adopted by the ACT Appeal Court on Morpath is binding on us. Although Morpath predates the Act and the Territory Plan (which specifies uses that may be permitted) the principles of Morpath are still applicable. We conclude that it is not necessary for the party joined to prove that the existing purpose clause is unreasonably restrictive or unviable, and that the additional uses proposed by Mr Gibbs are both reasonable and permissible uses and that his use of the subject land would be impeded if the Tribunal were to reject the lease variation on the grounds that he had not demonstrated unviability.
Are the terms of the proposed variations to the lease appropriate and if not, what changes should be made to them?
105.The original 1975 lease to Ms O’Clery for Cuppacumbalong cannot be located. The earliest version that was available to the Tribunal was granted in November 1982. The current lease appears to be that entered into by Ms Karen O’Clery dated 8 November 1995, which was the lease against which the decision by the respondent to approve the variation was made (as it was attached to the submission of the proposal to the respondent’s Major Project Review Group). It differs only slightly from the 1982 version.
106.The decision under review varies the purpose clause of the current lease in a number of ways, varies or removes a number of restrictions on the way the premises may be used, deletes a requirement that the scope and location of facilities for the sale of plants requires prior approval by the Territory, deletes a requirement that the “centre” be open to the public during the hours and on the days as approved or specified by the Territory as well as a requirement that the lessee shall not impose any fees, charges or other remuneration for entry by the public to the premises without the consent of the Territory.
107.During the course of the hearing some concern was expressed by the applicants in particular about the removal of the requirement to ensure that the centre was open to the public and Dr Jarvis advised that the respondent would not object if this part of the decision was deleted. This reflects the evidence of Dr Pearson that the Heritage Council’s preference was for the retention of the public access provisions. Under the circumstances, we will re-impose such a requirement if we are able to vary the decision.
108.The applicants’ main concern was that the current lease required the lessee only to use the premises (ie the land, building and all other improvements on the land) for the promoting of Australia arts and craft through the provision of facilities for the creation and making, and for the exhibition and sale, of works of artists and craftspeople as well as residential accommodation for artists and craftspeople and the lessee or manager. Other uses were to be subsidiary to the primary use. In the proposed lease variation, the primacy of the promotion of arts and craft use had been removed. They feared that the removal of this obligation could (and probably would) lead to the abandonment of any promotion of arts and craft at Cuppacumbalong and hence a diminution in the arts and craft “precinct” which they believed had been central to the granting of their individual leases.
109.Condition A1 of the approval to the lease variation was that the approval would not take effect until a number of studies and reports had been prepared by the lessee. They were:
A.An Archaeological (European and Aboriginal) Assessment for the site endorsed by ACT Heritage;
B.An Environmental Assessment to determine land capability with respect to the provision of water supply and effluent management;
C.A Master Plan for the site, which identified all current and proposed uses for the site with an indicative time for each developmental stage. The Master Plan was to be informed by the Archaeological and Environmental Assessments and endorsed by the ACT Heritage Council, Territory and Municipal Services (Environment) and the ACT Planning and Land Authority and would, in conjunction with the Conservation Management Plan form the basis of future development of the site;
D.A Conservation Management Plan (CMP) for the site, in conjunction with the ACT Heritage Unit (The CMP would be informed by the Master Plan and the Archaeological Assessment);
E.A Management Agreement to be approved and endorsed by ACT Heritage for the management of the heritage significance of the place based upon the policies and recommendations of the CMP; and
F.A Land Management Agreement as required for the inclusion of the use of agriculture.
In addition, the use of the land was required to be consistent with the approved
Master Plan and the approved Conservation Management Plan.
110.Mr Gibbs had already arranged for the preparation by experienced consultants of several of these plans (which had also been required by earlier approvals). While they were still in draft form, they were in evidence before the Tribunal.
111.These conditions of approval did not satisfy the applicants that their fears were unfounded. On the contrary, they contended that all the studies should be undertaken before any decision on the lease variation was approved.
112.This argument was put most strongly by Mr Powell, who stated that in general, urban planning practice envisages environmental impact assessments that encompass physical, social and economic environments. In this particular case, the respondent had a statutory obligation under s120 (f) of the Act to evaluate the manner in which the proposed lease variation is likely to have adverse impacts on the physical, social and economic character of the subject land, on contiguous sites and Tharwa Village and on the Murrumbidgee River Corridor, before the development application was approved.
113.Mr Powell did not accept that the preparation of a CMP, post facto, was appropriate, because the CMP would identify information that ought to be available to the decision maker prior to any determination being made to changes to the leasehold conditions. He opined that the CMP would also involve an assessment and statement of significance for Cuppacumbalong homestead and ground, including a determination of the importance of preserving long-standing relationships with associated arts and craft activities on adjoining properties. Without such information a decision-maker could not make an informed decision. He admitted that he was not aware that the decision maker had had access to a draft Conservation Management Plan for Cuppacumbalong Homestead and Precinct, prepared on behalf of the National Trust of Australia (ACT) for the ACT Heritage Unit, but denied that this made his view wrong. He preferred the report prepared by Connell Wagner for ACT Land and Property in 2002 in relation to the proposed sale of Block 6 Section 10 as a more appropriate model. However, Mr. Powell did not provide the Tribunal with any evidence that any of the additional uses proposed by Mr. Gibbs necessarily created a greater adverse environmental impact than might arise from the uses currently permitted.
114.Ms Chapman gave evidence that she was constrained by the decision of the ACT Government, enshrined in the Act, to adopt the Track System for development approvals which is regarded as the “Best Practice Model”. They are now required to make a decision within 30 days (or 45 days if representations are received) and in her view, they cannot spend a prolonged period of time dealing with applications, and the conditions that had been imposed would ensure that full consideration was given to any adverse impacts that may arise before any physical development was approved.
115.The Tribunal has carefully considered the views of Mr Powell, but is not persuaded that the decision maker gave insufficient consideration to the manner in which the proposed lease variation was likely to have adverse impacts on the physical, social and economic character of the subject land before making her decision. In our view, the fact that she has required the lessee to undertake a range of studies and to prepare and have approved both a Master Plan and a CMP before the approval takes effect indicates that she recognized the need for such assessments, and nothing different can happen at Cuppacumbalong until those plans are in place and approved by the relevant authorities. Even then, any use of the land is required to be consistent with those plans and any development requires separate development approval, so that there will be ample opportunity for any adverse impacts of development proposals to be identified and dealt with.
116.Apart from the modification to the conditions to restore the clause requiring the provision of public access ( see para 107 above) we would propose that there be specific prohibition of a service station (included in the Territory Plan’s definition of tourist resort) as we would consider that an acceptable use of the subject land, should we be able to vary the decision. Having regard to our comments in para 81 above, we would also insert a provision that agriculture be permitted on the subject land only as an ancillary use to the other permitted uses and that provision to vary the Master Plan and the Conservation Management Plan from time to time should be inserted in the lease. We would also remove the requirement that parking should be provided “on the land” as the Master Plan may indicate that it could be better provided elsewhere (eg on Block 6) if the decision can be varied, We would not consider it necessary to restore the requirement for the premises to be used primarily for an arts and craft centre.
Will the proposed lease variation result in material detriment to the applicants?
117.We now return to consideration of whether the evidence demonstrates that the applicants will suffer material detriment if the lease is varied as proposed. As indicated in para 50, material detriment has to be shown to be detriment of a real and not trivial or imaginary kind, and the detriment must not be subjective but must be detriment in an objective and reasonable sense.
118.Dr Jarvis suggested that the applicants were not really concerned about any planning impact, such as noise or loss of amenity. Their case was really about the way the business was conducted. They considered that the Cuppacumbalong restaurant and gallery should provide a “magnet” to bring spin-off trade to their nearby businesses which had declined as visitors to Cuppacumbalong had declined.
119.He rejected this proposition, contending that the downturn in visitation to the area was not caused by the operations of Cuppacumbalong, but by a range of factors including the loss of goodwill occasioned by the departure of
Ms O’Clery, the 2003 fires, the closures of the Tharwa bridge, and an increase in the number of arts and craft outlets in and around Canberra, as well as the fact that some of the applicants discontinued their supply of products to the Cuppacumbalong gallery when they opened their own galleries or shops.120.Dr Jarvis asserted that commercial impacts such as the loss of consequential spin-off trade have never been considered an impediment to lease variation in the analogous case of redevelopment of local centres, for example when a service station ceased to operate.
121.Mr Arthur submitted that unless the applicants are able to identify and provide evidentiary support for some factor amounting to material detriment that goes beyond mere competition, they cannot be eligible entities. He said there was no evidence that the selling of arts and craft from their own premises would no longer be viable or to the disadvantage of members of the public wanting to buy arts and craft.
122.The Tribunal heard evidence that the applicants had adapted their business models in various ways to cope with the fall-off of trade that had happened over recent years. While they evidently would prefer to return to the good old days when Cuppacumbalong was a favorite week-end destination of many Canberrans, the question we now have to ask is whether the proposed lease variation, as presently constructed is likely to have an adverse impact on the applicants’ use or enjoyment of their land other than from direct or indirect competition (see ss 419(1)(a) and 419(2)).
123.We have carefully considered the views of the parties on this matter and have concluded that the applicants do have standing. While the proposed lease variation does not become effective until the Master Plan and the CMP are endorsed (and to that extent the decision under review changes nothing at this stage) we consider that as presently constructed the lease variation has the effect of removing from the applicants the certainty that there will be a centre for the promotion of arts and craft at the Cuppacumbalong premises. This was an important consideration for them when they bought their leases and established their businesses. While the proposed lease variation does not preclude the possibility of such a centre being re-established, it leaves the decision entirely in the hands of the party joined.
124.In our view, the removal of that certainty constitutes material detriment that is real and not merely imaginary or trivial, even though in the long run it might not come to pass.
125.We are further persuaded to this view by the requirement of s 40 (B) of the Human Rights Act 2004 (ACT) (“the Human Rights Act”) which provides that
40 (B) Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.
126. The ACAT is a public authority within s 40(1)(b) of the Human Rights Act because it is a ‘territory authority’ and is defined as a ‘territory authority’ in the Dictionary of the Legislation Act 2001 (ACT). Although the ACAT falls within the definition of “court” in the Human Rights Act, in this case it is acting in an administrative capacity by “standing in the shoes” of the respondent and therefore falls within the proviso in s 40(2)(b) of the Human Rights Act. The ACAT acts in an administrative capacity by exercising the scope of the respondent’s functions upon an application for review being filed with the ACAT. In addition to the function that the ACAT exercises when standing in the shoes of the respondent, it also acts as a public authority in its own right when acting in an administrative capacity.
127. In order to fulfil its responsibility under s 40B of the Human Rights Act, ACAT must consider the provisions of the Planning Act pursuant to s 30 of the Human Rights Act which reads:
(30) Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
128. One of the rights that is guaranteed by the Human Rights Act is contained in s 21(1) which reads:
21. Fair Trial
Everyone has the right to have criminal charges, and rights and obligations recognized by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
129.The ACAT has considered the application of these provisions in two cases (Thomson v ACT Planning and Land Authority [2009] ACAT 38 and Warren Gardner & Julie Beaver v ACT Planning and Land Authority (Administrative Review) [2010] ACAT 64) and concluded that whether the ACAT is acting in an administrative capacity or as a public authority, it is obliged to have regard to the right of the applicants to be given a hearing.
130.If, in this case, we were to conclude that the applicants had no standing, they would effectively be denied any benefits that might flow from such a hearing. For example, the Tribunal would be unable to make a decision that varied the proposed lease conditions in the ways indicated as possibilities in paras 107 and 116 above. We consider that s 30 of the Human Rights Act obliges us to interpret the provisions of the Planning Act relating to standing (s 419 (1) and 419 (2)) in a way that ensures that the right of the applicants to a public hearing is not denied to them, where it is possible to do so.
Conclusion
131.In the light of our decision that the applicants have standing, we proposed to vary the decision under review. However, we do not intend to re-introduce the requirement that there must be a centre for the promotion of Australian arts and crafts at Cuppacumbalong. Nothing different can happen as a result of the proposed lease variation until the required studies have been done, the Master Plan prepared and approved, the CMP prepared and endorsed, and development applications in accordance with those plans submitted for approval. In the meanwhile, the current lease remains in force and the party joined is obliged to act consistently with its purpose clause.
132. When the Master Plan and the CHP are in place, it is quite possible that the party joined will propose some development, other than an arts and craft centre, that could restore the attractiveness of Cuppacumbalong as a tourist destination and once again bring visitors to the area. In that event, the applicants could well find that their businesses begin to flourish again. ( It is important to recognize that both the Master Plan and the CMP have to be endorsed by the Heritage Council which should ensure that any development proposed is consistent with the objectives of the Heritage Register entry (see para 20 above)) .
ORDERS
The Tribunal orders that the decision under review made on the
28th January 2010 is varied as follows:THE DECISION is varied so that the sequence of permitted uses under the Crown lease purpose Clause has “agriculture’ placed last and the following proviso is added
FURTHER PROVIDED THAT agriculture shall only be carried out as an ancillary use to any other of the permitted uses; and
That part of the Decision deleting clause 3(i) is to be deleted.
The CONDITIONS OF APPROVAL in part A – A1 are varied as follows
5. Condition of Approval 3 a:
(ii)In the definition of “tourist facility” the words “service station” is deleted;
6. Condition of Approval 3b is deleted and the following substituted:
Amend Clause 3(a) to read as follows:
To use the said land in accordance with the approved Master Plan for one or more of the following purposes;
(ii)promoting Australian art and craft through the provision of facilities for the creation and making and for the exhibition and sale of works of artists and craftspeople and subsidiary thereto the:
sale of complementary artistic products;
sale of antiques;
sale of cottage garden plants indigenous native plants and associated products;
provision of seminar facilities;provision of restaurant facilities;
(ii) tourist facility;
(iii) residential accommodation only for artists and craftspeople in association with the purposes above, and the lessee or manager;.
(iv) agriculture;PROVIDED THAT any the tourist facility operated on the land shall be directly related to the use of the river; and
FURTHER PROVIDED THAT any residential accommodation on the land shall be ancillary to the permitted uses or for artists and craftspeople, the lessee or manager; and
FURTHER PROVIDED THAT agriculture shall only be carried out as an ancillary use to any other of the permitted uses; and
ALWAYS PROVIDED THAT the use of the land shall be consistent with both the Master Plan and the Conservation Management Plan for the site as endorsed by the relevant Territory authorities or as varied and endorsed from time to time;7. Condition of Approval 3(f) is deleted:
8. Condition of Approval 3 (h) is amended by:
Deleting from clause 3(r) the word “the’ in the third line;
Deleting from clause 3(s) the words “on the land” and amending the second use of the word “and” in the first line to “an”
………………………………..
Mr Bill StefaniakPresiding Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER:
AT 8 of 2010
PARTIES, APPLICANT:
MALCOLM COOKE, MARILY CINTRA, MYLES GOSTELOW & PENELOPE COFFEY
PARTIES, RESPONDENT:
ACT PLANNING & LAND AUTHORITY
PARTIES, PARTY JOINED
BRUCE GIBBS, BJG HOLDINGS PTY LTD
SOLICITORS FOR APPLICANT
Mr McCarthy, Blackburn Chambers
SOLICITORS FOR RESPONDENT
Mr Kettle, ACT Government Solicitor
SOLICITORS FOR PARTY JOINED:
Mr Halpin, Howes Kaye Halpin Solicitors
TRIBUNAL MEMBERS:
Mr Stefaniak, Presidential Member
Dr Dr D. McMichael, Senior Member
Mr R. Nichols, Senior Member
DATES OF HEARING:
21 July 2010 13 August 2010
22 July 2010 16 August 2010
23 July 2010 24 August 2010
28 July 2010PLACE OF HEARING:
CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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