MOORE AND ACT PLANNING & LAND AUTHORITY
[2006] ACTAAT 30
•17 October 2006
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:MOORE AND ACT PLANNING & LAND AUTHORITY [2006] ACTAAT 30 (17 OCTOBER 2006)
AT06/58
Catchwords: Land and planning – application under section 247 of the Land (Planning and Environment) Act to amend approval given under Buildings (Design and Siting) Act 1964 – lack of jurisdiction
Administrative Appeals Tribunal Act 1989, s 37
Buildings (Design and Siting) Act 1964
Land (Planning and Environment) Act 1991, ss 222, 229, 230, 247, 251, 275, item 8, Sch 4, Pt 4.1
Land (Planning and Environment) (Amendment) (No. 3) Act (No. 85 of 1996), s 126
Legislation Act 2001, s 155
Tribunal:Mr M H Peedom, President
Date:17 October 2006
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/58
LAND AND PLANNING DIVISION )
RE: ROBERT GEORGE
MOORE
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
Respondent
CORRECTION OF ERROR
Tribunal : Mr M H Peedom, President
Date : 25 October 2006
Correction :
Pursuant to section 44A of the Administrative Appeals Tribunal Act 1989 the decision of the Tribunal in these proceedings dated 17 October 2006 is amended as follows:
Delete the following words:
“decision under review is set aside and substituted by a decision that the”; and
Add the following additional sentence:
“The application for review of decision is therefore dismissed.”
……………………….
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/58
LAND AND PLANNING DIVISION )
RE: ROBERT GEORGE
MOORE
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 17 October 2006
Decision :
The decision under review is set aside and substituted by a decision that the Tribunal has no jurisdiction to hear and determine the application for review of decision.
………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT06/58
LAND AND PLANNING DIVISION )
RE: ROBERT GEORGE
MOORE
Applicant
AND: ACT PLANNING AND
LAND AUTHORITY
Respondent
REASONS FOR DECISION
17 October 2006 Mr M H Peedom, President
The applicant in this case made application under the Buildings (Design and Siting) Act 1964 (“the Design and Siting Act”) on 17 July 1990 for the approval of building work at Block 4 Section 7 Division of Ainslie (“the subject block”). The work involved a ground floor addition to the existing residence on the subject block and the modification of the roof so as to include a second storey component. Approval to the work was given on 3 August 1990 by the Interim Territory Planning Authority.
2. On 7 July 1992 the applicant lodged a further application under the Design and Siting Act for approval of further extensions and alterations of the residence and the addition of a carport. The application was approved on 10 August 1992.
3. On 11 May 1993 further approval was given under the Design and Siting Act to plans marked 2018/C which were said to be identical to the approval given on 10 August 1992, save for some additional detail.
4. On 8 May 1997 the applicant applied for the approval of work as executed in respect of additions and alterations to the residence and which were specified in plans No. 2018/D. On 30 May 1997 an approval was given by a delegate of the respondent in respect of the application. The approval was expressed to be given pursuant to section 230 of the Land (Planning and Environment) Act 1991 (“the Land Act”) and “in respect of nominated amendments only 1-16”. The amendments were described by the applicant’s legal representative as cosmetic only.
5. On 6 March 2006 the applicant lodged an application pursuant to section 247 of the Land Act for the approval of minor amendments of the plans originally approved in 1990 as subsequently amended by the approvals given in 1992 and 1993 (“the 1992/93 approvals”).
6. On 24 April 2006 the Heritage Council advised the respondent that the development proposed would have a detrimental impact upon the values of the heritage listed precinct in which it was located and to prevent such impact would require change to the fundamental nature or concept of the development.
7. Advice was given by the respondent to the applicant that the necessary changes would include deletion of the proposed upper storey addition, a pergola and two dormer windows.
8. Advice was also given by the respondent to the applicant that it would be necessary for him to lodge a fresh development application because the 1992/93 approvals were no longer in force and, therefore, incapable of amendment pursuant to section 247 of the Land Act.
9. In a notice of decision dated 27 July 2006 the respondent confirmed its refusal to approve the applicant’s application for amendment of the 1992/93 approvals for the reasons outlined in the preceding paragraph.
10. Section 247 of the Land Act, pursuant to which the decision refusing to approve the applicant’s application for amendment of the 1992/93 approvals purported to be given, is contained in Part 6 of the Land Act. It provides:
247 Minor amendments
(1)The lessee or an occupier of a place in relation to which an approval is in force may apply in writing to the planning and land authority for an amendment of it.
(2)The planning and land authority may amend an approval, if satisfied that the amendment—
(a)does not change the effect of a condition subject to which the approval was given; and
(b)will not cause a significant increase in detriment to any person; and
(c)does not change the kind of development approved but only the activity permitted.
(3)The planning and land authority must give notice of an amendment—
(a)to the person who made the application to amend; and
(b)if that person is not the lessee or occupier of the place to which the approval relates—to the lessee; and
(c)to each person who had objected under section 237 (Objections—general) to the grant of the approval; and
(d)to any relevant territory authority (emphasis added).
11. The Dictionary to the Land Act contains the following definition of the word “approval”:
approval, for Part 6 (Approvals and orders)—see section 222.
12. Section 222 contains the following definition of “approval” for Part 6:
approval means—
(a) an approval under section 230 (Approvals); or
(b)if, on reconsideration of an original decision, an application for development is approved—an approval on reconsideration.
It is not suggested that paragraph (b) of the definition applies in the circumstances of this case.
13. Having regard to the definition of “approval” in section 222 of the Land Act it is clear that, by its terms, section 247 is restricted to an authorisation to amend an approval of a development application that was given pursuant to section 230 of the Land Act. Section 155 of the Legislation Act 2001 would enable broader scope to be given to the application of section 247 if a contrary intention to the adoption of the defined meaning of “approval” in section 222 were to be found in the Land Act. But no submission was made of there being such a contrary intention in the Land Act nor am I able to identify any intention that the defined meaning should not apply.
14. A submission was made on behalf of the applicant, however, that as the approval given on 30 May 1997 was expressed to be an approval given pursuant to section 230 of the Land Act it was an approval of the kind referred to in section 247 of the Land Act and, therefore, able to be amended under that section. Further, it was submitted that section 126 of the Land (Planning and Environment) (Amendment) (No. 3) Act (No. 85 of 1996) had the effect of carrying the 1992/93 approvals forward so as to become part of the approval expressed to be given on 30 May 1997 under section 230 of the Land Act and also able to be amended pursuant to section 247.
15. Reliance was also placed by the applicant on section 251 of the Land Act which relevantly provides:
(1)An approval to undertake a development (other than a development that consists only of a variation of a lease) ends if—
………..
(c)if no period is specified in an approval for the beginning of the development or any stage of the development—the development or stage of development is not begun within 2 years after the day the approval takes effect.
As the work approved in 1992/93 had commenced, it was submitted, it had not lapsed and remained in effect.
16. In response to the submission made on behalf of the applicant, the respondent’s legal representative informed the Tribunal that the approval given on 30 May 1997 had mistakenly referred to section 230 of the Land Act. It should have made reference to section 247 of the Land Act.
17. The absence of any material in the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 to suggest that the requirements of section 229 of the Land Act for the giving of notice of a development application had been satisfied and a document entitled “247 Check List” in the T documents (folio 81), provide support for the respondent’s argument that the approval given on 30 May 1997 was incorrectly expressed to be an approval given under section 230 of the Land Act.
18. Be that as it may, even were the approval given on 30 May 1997 to be correctly regarded as an approval given under section 230 of the Land Act, the expressed terms of that approval, being confined to the 16 specified amendments only, do not enable it to be regarded as an approval of the 1992/93 amendments, irrespective as to the status of those approvals at any date later than the giving of them.
19. Further, section 251 of the Land Act upon which the applicant relied as continuing the 1992/93 approvals in effect does not assist the applicant’s argument. By its terms section 251 applies to end, or to not end, an approval to undertake a development. The definition of “approval”, as has been already explained, confines the operation of section 251 to an approval given under section 230 of the Land Act, irrespective as to whether the work approved has commenced or not. It, therefore, has no application to the approvals given in 1992/93.
20. The jurisdiction of the Tribunal to hear and determine an appeal in the circumstances of this case is dependent upon there being a decision refusing to amend an approval under section 247(2) of the Land Act (see section 275 and item 8, Schedule 4, Part 4.1 of the Land Act). It follows from the conclusion which I have arrived at that the amendment requested by the applicant of the 1992/93 approvals did not relate to an approval capable of being amended pursuant to section 247 of the Land Act. As a result the Tribunal has no jurisdiction to hear and determine the applicant’s appeal.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT06/58
APPLICANT: ROBERT GEORGE MOORE
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR S GAVAGNA
RESPONDENT: MS G WONG
PARTY JOINED:
SOLICITORS: APPLICANT: GOODMAN LAW
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 9 OCTOBER 2006 PLACE: CANBERRA
DATE OF DECISION: 17 OCTOBER 2006 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENTS:
0
0
0