McGRATH AND ANOR v ACT PLANNING AND LAND AUTHORITY & ANOR (Administrative Review)

In the matter of McGrath and Another v ACT Planning and Land Authority & Another, the applicants, Ms McGrath and Ms Brennan, sought to have the reconsideration decision made by the Authority on 8 March 2018 set aside. The Authority had approved a development as amended, subject to conditions, including the erection of tree protection fencing and retention of certain trees under the supervision of a suitably qualified arborist. Ms McGrath applied to the Tribunal on 5 April 2018 for an order to confirm the original decision made by the Authority on 15 January 2018, which had refused the development application. The applicants argued that the reconsideration decision did not comply with the Multi Unit Housing Development Code (MUHDC) and that the Authority had not provided sufficient justification for non-compliance with the rules.

The legal issues before the Tribunal included whether the reconsideration decision was consistent with the MUHDC and whether the Authority had provided adequate justification for approving a development that did not fully comply with the rules. The applicants submitted that the Tribunal should consider the "minimum ideal" as set out in the related rule as a guide when interpreting terms such as "proportionate" and "reasonable" in the criteria. They referred to previous decisions by the Tribunal in Javelin Projects and Deakin Residents Association, where it was noted that context is an important tool in statutory interpretation and that the requirements in the criteria should be informed by the terms of the corresponding rules.

The Tribunal considered the arguments presented by the applicants and the submissions from the Authority and Fleming. It found that the reconsideration decision did not adequately address the non-compliance with the rules and did not provide sufficient justification for approving the development. The Tribunal concluded that the Authority had not demonstrated that the relevant criteria were satisfied through supporting drawings and/or written documentation. Therefore, the Tribunal set aside the reconsideration decision made by the Authority on 8 March 2018.

The Tribunal ordered that the decision dated 8 March 2018 of the respondent be set aside and that the original decision made by the Authority on 15 January 2018 be confirmed, effectively refusing the development application. The Tribunal's decision highlights the importance of providing clear and sufficient justification for approving a development that does not fully comply with the relevant code and criteria, and the need for the Authority to demonstrate that the criteria have been satisfied through appropriate documentation.