MOORE and NATIONAL TRUST OF AUSTRALIA (ACT) & ENVIRONMENT AND SUSTAINABLE DEVELOPMENT DIRECTORATE (Administrative Review)
[2012] ACAT 35
•25 May 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MOORE and NATIONAL TRUST OF AUSTRALIA (ACT) & ENVIRONMENT AND SUSTAINABLE DEVELOPMENT DIRECTORATE
(Administrative Review) [2012] ACAT 35
AT 11/134 and AT 11/135
Catchwords: ADMINISTRATIVE REVIEW – removal of third party appeal right after development approval – whether objector has an accrued right to seek review of decision: section 84 Legislation Act 2001 – whether the Tribunal’s jurisdiction is vitiated by change in law – distinction of what is and what is not a ‘right’ - ingredients which give rise to ‘something in the nature of a cause of action’ - consideration of whether it would be unjust for the repealing or amending act to affect the situation adversely – stage in the planning scheme in which the right to seek review arose – the power to take advantage of an enactment compared with a step taken under an enactment – whether specific right, not general right, is preserved – whether an indulgence granted under a statute could be an accrued right – inchoate or conditional right – distinction between rights that are purely discretionary and rights that are not discretionary – whether the applicants are asserting a mere hope or expectation – objector’s right in the context of the continuum of planning decision-making
List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss 9 and 56
Acts Interpretation Act 1901 (Cth), s 8
Legislation Act 2001, s 84
Planning and Development Act 2007, ss 50, 153, 154, 155, 156, 162, 407 and 408, and Chapter 13
List of regulations: Planning and Development Amendment Regulation 2011 (No 1) (SL2011-30)
Planning and Development Amendment Regulation 2011 (No 1) (SL2011-30) – Explanatory Statement
Planning and Development Regulation 2008, s 350, and
schedule 3Planning and Development Amendment Regulation 2011 (No 1) Amendment Resolution 2012 (AR2012-1)
List of cases: Abbott v Minister for Lands [1895] AC 425
Bass Coast SC v Christian Brethren Trust [2006] VCAT 1958
Castellano v City of Port Melbourne (1983) 57 LGRA 231
Continental Liqueurs Pty Ltd v GF Heublein & Bro. Inc
(1960) 103 CLR 422CSR v Irving [1905] AC 369
Director of Public Works v Ho Po Sang [1961] AC 901
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33
Esber vCommonwealth (1992) 106 ALR 577,
(1992) 174 CLR 430Free Lanka Insurance v Ranasinghe [1964] AC 541
Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494
Hamilton Gell vWhite [1922] 2 KB 422
Jewel Food Stores v Minister for Planning (1994) 122 FLR 269
JR Exports Pty Ltd v Australian Trade Commission
(1987) 14 FCR 161
Kentlee P/L v Prince Consort P/L [1998] 1 Qd R 162
Lakkis v City of Wyndham [2001] VCAT 863
Mathieson v Burton (1971) 124 CLR 1; [1971] HCA 4
NSW Aboriginal Land Council v Minister (The Winbar Claim)
(1988) 14 NSWLR 685
Oppe v Shire of Lillydale [1980] VR 387
Repatriation Commission v Keeley (2000) 60 ALD 401; [2000]
FCA 532
Re Rayson and Repatriation Commission [2011] AATA 233; 121 ALD 311
Resort Management Services Limited v Noosa Shire Council (1996) 92 LGERA 387
Roberts & Ors and ACT Planning & Land Authority
[2009] ACAT 10Robertson v City of Nunawading [1973] VR 819
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Simpson v Bass Coast SC [2007] VCAT 165
Starey v Graham [1899] 1 QB 406
Thomson v ACTPLA [2009] ACAT 38
Worrall v CommercialBanking Co of Sydney Limited
(1917) 24 CLR 28
List of texts: D Pearce and R Geddes, Statutory Interpretation in Australia
(7th ed, 2011)M McHugh, ‘Does Chapter III of the Constitution protect substantive as well as procedural rights? (2001) 21 Australian Bar Review 235
Tribunal: Professor Peta Spender, Presidential Member
Date of Orders: 25 May 2012
Date of Reasons for Decision: 25 May 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
AT 11/134 & AT 11/135
BETWEEN:HELEN MOORE
Applicant
(AT 11/134)
BETWEEN:NATIONAL TRUST
OF AUSTRALIA (ACT)
Applicant
(AT 11/135)
AND:
ENVIRONMENT AND SUSTAINABLE DEVELOPMENT
DIRECTORATE
Respondent
TRIBUNAL: Professor Peta Spender, Presidential Member
DATE: 25 May 2012
ORDERS
1.The respondent’s applications dated 15 February 2012 are dismissed.
2.The matters are to be listed for further directions at 4.30 pm on 30 May 2012.
3.The parties have liberty to apply.
………………………………..
Professor Peta Spender
Presidential Member
REASONS FOR DECISION
THE APPLICATION
On 23 December 2011, the applicant in AT11/134, Ms Helen Moore, and the applicant in AT11/135, the National Trust of Australia (ACT), (hereafter referred to collectively as the ‘applicants’) filed applications with the Tribunal (also referred to in this decision as ‘ACAT’) seeking a review of the decision of the respondent dated 28 November 2011 (the Decision) to approve, subject to conditions, a development application, numbers 201120317 and 201120317A (the DA), regarding Block 13 Section 49 Kingston (the Subject Land). The Decision had approved a new series of rooms and a mezzanine as a freestanding structure within an existing building known as the Fitters’ Workshop and construction of a new extension with associated amenities connecting the existing and new buildings.
The Decision was made by a delegate of the ACT Land and Planning Authority, Environment and Sustainable Development Directorate. Proceedings were commenced against Environment and Sustainable Development Directorate as respondent. There is some uncertainty as to whether the proper respondent is the ACT Land and Planning Authority (the Authority) due to the functions conferred on that body by section 12 of the Planning and Development Act 2007 (the Planning Act) but no application has been made in these proceedings to substitute the Authority for the Directorate.
This decision concerns applications made by the respondent in both proceedings on 15 February 2012 which sought to have the applications for review dismissed for want of jurisdiction.
BACKGROUND TO THE PROCEEDINGS
On 8 July 2011, Daryl Jackson Alistair Swayn Pty Ltd lodged the DA in the merit track. It was publicly notified from 22 July 2011 to 12 August 2011. The respondent received seven written representations within the relevant period, including representations made by the two applicants in these matters.
On 15 November 2011, the Planning and Development Amendment Regulation 2011 (No 1) (SL2011-30) (the Amending Regulation) came into effect and, as stated above, the respondent approved the DA subject to conditions on 28 November 2011. The Amending Regulation removed third party appeal rights in relation to an area defined as the Kingston Foreshore and outlined in bold on a plan in Schedule 3 of the Planning and Development Regulation 2008 (the Planning Regulation). The boundaries of the area defined as the Kingston Foreshore were all or part of Lake Burley Griffin, the Jerrabomberra Wetlands, the Causeway, Cunningham Street, Wentworth Avenue and Eastlake Parade in Kingston. The DA is on the land at Block 13 Section 49 Kingston, which falls within the aforementioned area nominated in the Amending Regulation as the Kingston Foreshore.
As stated above, on 23 December 2011, the applicants filed applications seeking review of the Decision. On 20 January 2012, the Tribunal made orders dismissing the applications on the basis that did not have jurisdiction to determine the applications because the Amending Regulation had removed the Tribunal’s jurisdiction to consider the applications for review because the land subject to the DA fell within the definition of Kingston Foreshore, therefore third party appeal rights had been removed as from the date that the Amending Regulation came into effect i.e. 15 November 2011.
On 1 February 2012, the applicants wrote to the Tribunal asserting that they had been denied natural justice and sought a review of the order dismissing the applications and requesting an opportunity to make submissions against the order dismissing their applications. On 9 February 2012, the Tribunal made orders setting aside the orders of 20 January 2012 pursuant to section 56(d) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), and listing the matter for directions.
As stated above, the respondent filed two applications for interim or other orders with the Tribunal on 15 February 2012 seeking dismissal of the applications for want of jurisdiction.
On 17 February 2012, the ACT Legislative Assembly passed the Planning and Development Amendment Regulation 2011 (No 1) Amendment Resolution 2012 (AR2012-1) (the Resolution). The Resolution took effect from 21 February 2012. The effect of the Resolution was to further amend the Amending Regulation by removing developments on land in Section 49 Kingston from the matters which were exempted from third party ACAT review. This had the effect of reinstating third party appeal rights to ACAT in relation to the Subject Land, however the Resolution was not expressed to have retrospective effect.
The applicants and respondent made submissions and provided facts and contentions in relation to the respondent’s applications for orders and an interlocutory hearing was held on 5 April 2012.
THE LEGAL FRAMEWORK
The Tribunal is empowered under Chapter 13 of the Planning Act to review decisions of the respondent in certain nominated circumstances.
Under section 408 of the Planning Act, an ‘eligible entity’, as defined in section 407 of the Act, may apply to the Tribunal for a review of a ‘reviewable decision’ as defined in section 407. The decision of the respondent to approve the DA is a decision mentioned in the Planning Act at schedule 1, column 2 at item 4. That provision defines the relevant reviewable decision as a decision under section 162 to approve a development application in the merit track, whether subject to a condition or otherwise, if –
a)the application was required to be notified under section 153 and section 155, whether or not it was also required to be notified under section 154; and
b)the application is not exempted by regulation.
In relation to this item, column 4 states that the eligible entities include an entity who ‘made a representation under section 156 about the development proposal ... and the approval of the development application may cause the entity to suffer material detriment.’ Both applicants made a representation under section 156 in relation to the DA during the public consultation period. The additional criterion that the approval of the development application will cause the entity to suffer material detriment has not been examined at this phase of the proceedings. The respondent indicated during its oral submissions on
5 April 2012 that it challenged the standing of the first applicant, Ms Moore, but this challenge was reserved until after the threshold question of the Tribunal’s jurisdiction had been determined.
The aforementioned threshold question of the Tribunal’s jurisdiction concerns the question of whether the applications are exempted by regulation and therefore not satisfying the requirements set out by the Planning Act at schedule 1, column 2 at item 4(b).
In this regard, section 350 of the Planning and Development Regulation 2008 (‘the Planning Regulation’) states that certain merit track decisions are exempt from third party ACAT review. Section 350 of the Planning Regulation refers to an exempt merit track decision as ‘a development application in relation to a matter mentioned in schedule 3 ... part 3.2’. After the Amending Regulation came into effect, schedule 3, part 3.2 of the Planning Regulation refers in item 4 to ‘a development on land in ... (d) the Kingston Foreshore’. A map of the aforementioned Kingston Foreshore is set out in Division 3.4.6 in Part 3.4 of the Planning Regulation, and, as stated above, the DA is on the land at Block 13 Section 49 Kingston, that at the relevant time fell within the Kingston Foreshore.
Pursuant to section 9 of the ACAT Act, the Tribunal may only exercise such jurisdiction as is conferred upon it by statute and, as stated above, the jurisdiction of the Tribunal is, prima facie, expressly excluded in relation to this application for review by the Planning Act and the Planning Regulation.
However in this case, the applicants argue that the Amending Regulation does not apply to them due to the operation of section 84 of the Legislation Act 2001 (the Legislation Act). Section 84 states as follows:
84 Saving of operation of repealed and amended laws
(1) The repeal or amendment of a law does not—
(a) revive anything not in force or existing when the repeal or amendment takes effect; or
(b) affect the previous operation of the law or anything done,
begun or suffered under the law; or
(c) affect an existing right, privilege or liability acquired,
accrued or incurred under the law. …
(6) In this section:liability includes liability to penalty for an offence against the law.
penalty includes punishment and forfeiture.
privilege includes immunity.
right includes capacity, interest, status and title
The applicants argued that they have an accrued right under the previous version of the Planning Act and Planning Regulation which has the consequence that their right to seek third party review through ACAT is preserved. The right is said to arise from them making a representation in relation to the DA when it was publicly notified. This was prior to the Amending Regulation and is preserved by the operation of section 84 of the Legislation Act, even though the alleged right has been taken away by the Amending Regulation.
By way of clarification, the parties did not allege that the Resolution dated
17 February 2012 had retrospective operation, so as to make the Decision the subject of these proceedings a reviewable one. This contention was first raised by the respondent in its submissions stated 28 February 2012 and was not contested by the applicants in the hearing on 5 April 2012.
At that hearing, the applicants were represented by Mr Arthur of counsel and the respondent was represented by Mr Clynes of counsel.
The respondent’s applications and the applicants’ arguments raise atypical, perhaps novel, questions that deserve careful scrutiny.
THE PARTIES' CONTENTIONS
Even though this decision concerns the respondent’s applications to strike out the applications for review on the ground that the Tribunal lacks jurisdiction, in discussing the parties’ arguments, the applicants’ contentions will be considered first because the respondent relied upon the conventional effect of the Amending Regulation and it was the applicants’ challenge to that argument that raised atypical or novel issues of law. Therefore, in order to achieve some logical coherence, the applicants’ arguments will be considered first.
THE APPLICANTS’ CONTENTIONS
The applicants’ contentions about the preservation of accrued rights
The applicants contended that they had lodged their representations/objections prior to the making of the Amending Regulation. Applying section 84 of the Legislation Act, they argued that their right was a right to have their objections determined on their merits by application to the Tribunal in the event that the DA was approved. It is no less a right because it is conditional: Gerrard v Mayne Nickless Ltd.[1]
[1] (1996) 135 ALR 494 at 509-513
The applicants further maintain that the nature of that determination is not purely discretionary because, pursuant to section 50 of the Planning Act, the Tribunal is bound not to approve the application where it concludes that approval would be inconsistent with the Territory Plan. Thus the observations of Higgins J (as he then was) in Jewel Food Stores v Minister for Planning[2] (Jewel) are not apt.[3] This case is also distinguishable from Jewel as the lodging of the objection preceded the making of the amendment.
[2] (1994) 122 FLR 269 at 283
[3] Gerrard v Mayne Nickless (1996) 135 ALR 494 at 512-513
The applicants say that their right to bring this application had accrued at the time the Amending Regulation was made, and is preserved by section 84(1)(c) of the Legislation Act.
During the hearing, Mr Arthur of counsel presented the stages of the alleged accrued right as follows:
1. Statutory provision
• For objection to DA
• For appeal against approval of DA
2. DA lodged and notified
3. Objection lodged
Amending Regulation came into effect
4. Decision to approve
5. Appeal lodged
Mr Arthur argued that at stage 1, there is simply a statutory provision which allows for objections to a development application to be brought and for an appeal against the approval of a development application. That is to say, the statutory provision exists, but nobody has done anything that engages that statutory provision.
The second step in the process is the lodging and notification of a development application, and at this stage of the process there is at once an expression of the interest of the pursuit of the economic interests of the developer, the proponent, but also, suddenly, the interests of the persons who may be adversely affected by the development are at risk. So at this moment, there is a real risk that has arisen, that the interests of the persons may actually be affected if there is an approval.
Stage 3 in the process involves the lodging of an objection. The applicants argued that this stage is significant because of the double requirement in schedule 1 of the Planning Act for an eligible entity to have made an objection under section 156 of the Planning Act and to prove that they will suffer material detriment as a consequence of the approval of the development.
The next event in the continuum on the applicants' argument is the decision to approve (stage 4) and then the final event is the lodgement of the appeal to ACAT (stage 5). In this case, the statutory provisions were amended between stages 3 and 4 and the reason for identifying that point is that when one reads the cases, it become clear that the point at which the amendment operates can be decisive of the outcome and the applicants’ contention is that their right had accrued at the time that the amendment took effect.
The applicants’ contentions about invalidity stemming from unlawfulness
The applicants made arguments based upon the Human Rights Act 2004 (the Human Rights Act).
The applicants seek to have their opposition to the DA determined on its merits by the Tribunal. They say that the right to a fair trial is thus enlivened or is engaged or is admissible at least to a threshold standard: Thomson v ACTPLA.[4] Further, they contend that the effect of section 350 of the Planning Regulation, upon the addition of the Kingston Foreshore precinct to the areas of exemption, was to preclude absolutely the exercise by the applicants of their right to a fair trial. It was argued that the decision of the Ministers concerned to execute the Amending Regulation was made without proper consideration of the applicants’ right to a fair trial.
[4] [2009] ACAT 38 at [56]
The applicants say that the DA relates to a heritage listed building which is a public asset. The objection of the applicants concerns the effect of the proposed use of the building on the heritage values and characteristics of the building, a matter of public interest. It is said to be apparent from the Explanatory Statement accompanying the Amending Regulation[5] that the concern of its makers was solely with the elimination of litigation for commercial advantage with respect to large scale mixed use commercial developments, and with a view to maintaining investor confidence in a high value land area. In short, when considering whether it was appropriate to introduce the exemption only commercial development was in view – the relative benefits and disadvantages with respect to development proposals of the present kind of complete exemption were not considered.
[5]Planning and Development Amendment Regulation 2011 (No 1) (SL2011-30)
Explanatory Statement
Finally the applicants argue that the failure of the makers of the Amending Regulation to give any consideration to the rights of those pursuing non-commercial interests in the making of the decision to make the amendment renders that act unlawful. Being unlawful, the conduct of the makers of the Amending Regulation is beyond their legitimate regulation-making power. The Amending Regulation is, accordingly, invalid.
THE RESPONDENT’S CONTENTIONS
The respondent’s contentions about the preservation of accrued rights
The respondent rejected the applicants’ ‘accrued right’ submission, referring to the observation made by Lord Evershed in Free Lanka Insurance v Ranasinghe[6] that the distinction between what is and what is not a ‘right’ is one of ‘great fineness’.[7]
[6] [1964] AC 541
[7] [1964] AC 541 at 552
The respondent argued that notwithstanding the fineness of the distinction, it is plain enough on the authorities that the right sought to be invoked here is not one that the courts would protect. Relying upon Jewel [8] and Hamilton Gell vWhite,[9] the respondent claimed that a mere right under statute to lodge an objection within a statutory planning scheme is not the kind of substantive right that the rules of statutory interpretation would protect against retrospective removal. Rather, as stated in JR Exports Pty Ltd v Australian Trade Commission [10] (JR Exports) the applicants must establish something in the nature of a cause of action which has arisen before the repeal or amendment that renders it manifestly unjust for the repeal or amendment to affect the situation adversely. [11]
[8] (1994) 122 FLR 269
[9] [1922] 2 KB 422
[10] (1987) 14 FCR 161
[11] (1987) 14 FCR 161 at 163
The respondent pointed to the types of rights that have been protected by a section 84 of the Legislation Act and its equivalents as follows:
·a right to receive compensation: Hamilton Gell v White[12]
·a right to receive a lump sum payment for commutation of workers’ compensation payments: Esber v Commonwealth[13];
·a right to receive payment for damages for personal injury under a policy of insurance: Free Lanka Insurance Co v Ranasinghe[14]
·a right to have what is effectively an employment contract reviewed as ‘unfair’ or ‘harsh’ : Gerrard v Mayne Nickless[15]
[12] [1922] 2 KB 422
[13] (1992) 174 CLR 430; (1992) 106 ALR 577
[14] [1964] AC 541
[15] (1996) 135 ALR 494
The respondent further argued that rights less than those in the nature of a cause of action have not been protected. For example:
·a claim to an ‘indulgence’ for a grant of an extension of time to apply for a benefit: JR Exports Pty Ltd v Australian Trade Commission [16]; and
·a right to challenge as third party objector a decision under the Land (Planning and Environment) Act 1991 (ACT): Jewel[17] and Robertson v City of Nunawading[18] (Robertson).
[16] (1987) 14 FCR 161
[17] (1994) 122 FLR 269 at 283
[18] [1973] VR 819
The respondent relied upon a passage in Robertson that stated that the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal.[19] Robertson was applied in both Jewel[20] and JR Exports[21] and the respondent submitted the applicants' case founders on this principle.
The respondent’s contentions about invalidity stemming from unlawfulness
[19] [1973] VR 819 at 826
[20] Jewel Food Stores v Minister for Planning (1994) 122 FLR 269 at 281-282
[21] JR Exports Pty Ltd v Australian Trade Commission
(1987) 14 FCR 161 at 164-165
The respondent submitted that the applicants’ invocation of the Human Rights Act does not make their case any stronger because they cannot point to any available interpretation that would uphold the designated ‘human right’. Further, it argued that the applicants’ attack on the Amending Regulation must fail because:
(a) upon the authorities, it fails as matter of interpretation or construction of the instrument in its application to the facts in the context of the Human Rights Act; and
(b) the Tribunal has no power to strike down the Amending Regulation .
The arguments set out above were augmented during the oral submissions made by counsel at the interlocutory hearing.
CONSIDERATION OF THE ISSUES
THE ACCRUED RIGHTS ISSUE
Introduction
The Tribunal certainly agrees with Lord Evershed that the distinction between what is and what is not a ‘right’ is often one of great fineness.[22] In the Tribunal’s view, this case involves fine distinctions but, after a review of the authorities, the Tribunal has concluded that the applicants’ argument is correct and that both Ms Moore and the National Trust of Australia (ACT) have rights that are protected by section 84 of the Legislation Act. The consequence of the operation of section 84 of the Legislation Act is that the Amending Regulation does not affect the applicants’ right to continue the proceedings in ACAT to review the Decision. Therefore, the Tribunal has jurisdiction to hear the applications for review.
[22]Free Lanka Insurance v Ranasinghe [1964] AC 541 at 552
According to Fryberg J in Resort Management Services Limited v Noosa Shire Council, the language used in section 84 and its equivalents ‘is not susceptible of precise definition, nor should it be’.[23] Similarly, Windeyer J. opined in Mathieson v Burton that, ‘[w]e are not engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld’.[24]
[23] Resort Management Services Limited v Noosa Shire Council (1996) 92 LGERA 387 at 394
[24] (1971) 124 CLR 1 at 12
Instead, the primary task of the Tribunal is set forth in JR Exports and that is to determine whether there is:
something in the nature of a cause of action which has arisen, or is claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to affect the situation adversely.[25]
[25] (1989) 14 FCR 161 at 163 per Fox J
The reference to circumstances which ‘render it manifestly unjust’ directs attention to the broader policy objective of section 84 and its equivalents, which is to counter the possible draconian and arbitrary effects of the repeal of a statute.[26] Although justice is the overarching purpose of section 84 of the Legislation Act, the criteria identified in the case law provide a clear direction to the interpretative task, by indicating factors relevant to ascertaining a just result.[27]
[26] Resort Management Services Limited v Noosa Shire Council (1996) 92 LGERA 387 at 394
[27] Resort Management Services Limited v Noosa Shire Council (1996) 92 LGERA 387 at 394-395
Overall, the Tribunal has concluded that the statutory framework of the Planning Act, which allows for a public consultation period for certain development applications in the merit track, followed by the entitlement of a third party to make representations about the development, followed by the approval of the development (in certain circumstances), followed by the entitlement of third parties to challenge the decision in ACAT (provided that the relevant applicant can also show that he or she has suffered material detriment) are all ingredients which give rise to ‘something in the nature of a cause of action’ on the JR Exports test. Once the objection to the development is lodged, it is a right which is protected by section 84 of the Legislation Act because, in combination with the other elements of the scheme, it will constitute ‘something in the nature a cause of action’, in so far as that term applies to statutory rights.
Of course, the power to exercise a right to seek a review of the decision in ACAT is conditional upon the DA being approved and upon proof of material detriment, but it is nevertheless a sufficient to attract the protection of section 84. If the Tribunal finds that the proposed development breaches the Territory Plan, then section 50 of the Planning Act precludes the approval of the DA. Therefore, upon the scheme set out above, the relevant right has arisen at stage 3, before the Amending Regulation came into effect.
ADDRESSING THE FINE DISTINCTIONS
Power to take advantage of an enactment
The case law draws a distinction between a power to take advantage of an enactment and a step taken under a statutory provision to assert a right. The right that it is asserted here by the applicants is the right to participate in the process to avert material detriment. Although the case law demonstrates that the power to take advantage of an enactment, without more, is not protected by section 84 and its equivalents, this case law is distinguishable because the applicants took the step of lodging a representation under section 156 of the Planning Act.
At stage 1 of the applicants’ scheme set out above, no rights could be said to have accrued because the statutory provisions more or less lay fallow until someone acts to exercise a right to object or (eventually) to appeal. The issue was raised in Abbott v Minister for Lands (Abbott).[28] In Abbott, the appellant claimed that, as a purchaser of Crown land, he became entitled under the Crown Lands Alienation Act 1861 to make a further purchase. The Act of 1861 was repealed, preserving all rights accrued. It was held by the Privy Council that the mere right existing as at the date of the repealing statute to take advantage of the provisions of a repealed statute was not a right accrued within the meaning of the salient clause.
[28] [1895] AC 425
In Abbott there was a statutory right but as at the date that it was repealed nobody had done anything to avail themselves of that right. As their Lordships said in Abbott:
They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a ‘right accrued’ within the meaning of the enactment.’[29]
[29] [1895] AC 425 at p.431
Abbott is relevant to the argument made in response to the applicants’ claim that section 50 of the Planning Act is part of a framework of obligations upon which the applicants’ right is based. The respondent, relying upon comments made by Lord Atkin in Hamilton v Gell,[30] submits that the applicants are seeking to assert a general right available to the entire public and an important discriminator in the cases is that a right that attracts the protection of section 84 of the Legislation Act must be personal. As Lord Atkin stated:
It is obvious that that provision [the equivalent of section 84 of the Legislation Act] was not intended to preserve the abstract rights conferred by the repealed act, for if it were the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute[31]
[30] [1922] 2 KB 422
[31] [1922] 2 KB 422 at 431
Note also the comments of Channell J in Starey v Graham:[32]
“[R]ight acquired” means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got. It does not mean “right” in the sense in which it is often popularly used. ... A right enjoyed in that way is not, within the meaning of this saving clause, a “right acquired”.. Otherwise it is obvious that such a clause would nullify the operation of any Act … .
[32] [1899] 1 QB 406 at 411
As a broad proposition, it is certainly true that general rights are not protected by section 84 of the Legislation Act. However, in Hamilton v Gell the relevant right was found to have arisen without action on the part of the tenant. It is not plausible to translate that finding into the framework created by the ACT planning legislation. In any case, on the authority of Abbott, each of the claimants in the present case has taken an actual step by lodging an objection, which constitutes an event under the Lord Atkin test in Hamilton Gell v White which converts a general power to take advantage of the Planning Act to a specific right.[33] Therefore, although sections 50 and 156(1) of the Planning Act are expressed in general terms, there has been a specific exercise of a right by the applicants under that statute prior to the Amending Regulation coming into effect.
An indulgence?
[33] See also the analysis in Resort Management Services Limited v Noosa Shire Council (1996) 92 LGERA 387 at 396
The distinction must be made between an entitlement supported by section 84 of the Legislation Act and an indulgence granted under a statute. An example of an indulgence is an extension of time to lodge a grant application which was in issue in JR Exports.[34] The Full Federal Court in that case relied upon the Privy Council judgment in Director of Public Works v Ho Po Sang[35] (Ho Po Sang):
It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. … But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not.[36]
[34] (1987) 14 FCR 161
[35] [1961] AC 901
[36] [1961] AC 901 at 922
In the case law, the question of indulgence often overlaps with a situation where the applicant is seeking the exercise of a pure discretion such as the claim in Ho Po Sang or the more recent case of Kentlee P/L v Prince Consort P/L.[37]However an indulgence is distinguishable from two situations: firstly, where the right is conditional, for example, upon the relevant facts being established. In that situation, the right is sufficient to be protected by section 84 of the Legislation Act although it might ‘fairly be called inchoate or contingent.’[38] In the second situation, the right involves some investigation and this was discussed in the extract from Ho Po Sang quoted above, and was further elaborated by the High Court in Esber v Commonwealth,[39] (Esber) which involved an application for review by the Administrative Appeals Tribunal of the refusal of the Commissioner to allow weekly payments of compensation to be redeemed for a lump sum. The plurality in Esber said:
If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim.[40]
[37] [1998] 1 Qd R 162
[38] NSW Aboriginal Land Council v Minister (The Winbar Claim) (1988) 14 NSWLR 685 at 694 per Hope JA
[39] (1992) 174 CLR 430
[40] (1992) 174 CLR 430 at 440
It is clear that the right that is being asserted in the present case involves a right to challenge the decision making that ensues as a consequence of the operation of section 50 of the Planning Act and the Territory Plan, which sets out an intricate system of rules and criteria to be applied when approving development applications across the entire Territory. This is demonstrated by a significant body of case law emanating from this Tribunal and its predecessor, the Administrative Appeals Tribunal (ACT). It is therefore distinguishable from the alleged rights that were asserted in the JR Exports or Ho Po Sang cases, that were based on purely discretionary decision-making. In no way could it be said that the respondent, or the Tribunal standing in the shoes of the respondent, exercises an unfettered discretion when making decisions about development applications in the merit track.[41] Moreover, the alleged right in this case must be conditional because it would be contingent upon a development application being approved after an objection has been lodged. Therefore the right in this case is consistent with the right asserted in NSW Aboriginal Land Council v Minister (The Winbar Claim).[42]
Are the applicants asserting a mere hope or expectation?
[41] See also KentleeP/L v Prince Consort P/L [1998] 1 Qd R 162 at 181
[42] (1988) 14 NSWLR 685
The respondent argues that Higgins J (as he then was) made a definitive statement in Jewel[43] that third party objectors have a ‘mere hope or expectation’ that a DA would not be approved and this was the case at the review stage as well as at the stage that the original proposal was considered. This argument is based upon a statement by his Honour as follows:
However, even if they are “affected” by the proposed redevelopment, it is clear that no opponent of the proposed “controlled activity” would have any "right" to do more than make representations in the hope that the "controlled activity" would [not] be approved. That would be the case at the review stage as well as at the stage when the original proposal was considered.[44]
[43] (1994) 122 FLR 269
[44] (1994) 122 FLR 269 at 283
The applicants argued that Jewel must be distinguished because at the time that it was decided, the consideration of an objection involved a complete discretion. Moreover, the present applicants say that the development application in Jewel had not been finalised, and therefore not notified, before the amendment to the statutory scheme came into effect, therefore it was not possible in that case for an objection to have been lodged.
The Tribunal is not satisfied that Jewel may be distinguished on the first basis argued by the applicants. At that stage, section 8 of the Land (Planning and Environment) Act 1991 (the predecessor to the Planning Act) appears to have a similar effect to section 50 of the Planning Act, although the judgment in Jewel does contemplate that the approval of a DA at that time involved the grant of an indulgence.[45] However, the second ground relied upon by the applicants to distinguish Jewel is significant, because no objection had been lodged by the applicant in Jewel and therefore Justice Higgins’ comments are obiter. Further, on page 284 of the judgment, his Honour canvasses an alternative scenario where the right to review is regarded as an accrued right. This may be linked to his statement on page 283 that ‘the substantive right would accrue to [a lessor-developer] only if the review was successful’. The latter obiter was relied upon the Tribunal in Roberts & Ors and ACT Planning & Land Authority[46] (Roberts) in deciding whether a developer applicant may have an accrued right after a DA had been approved. Although the Tribunal in Roberts contemplated that the developer may have a right that would be protected by section 84 of the Legislation Act, it found that the relevant ‘right’ had not accrued because of the operation of sections 177-178 of the Planning Act. This was based on authority from Victoria which adopted the same analysis.[47]
[45] Jewel Food Stores v Minister for Planning (1994) 122 FLR 269 at 283
[46] [2009] ACAT 10 at [27]
[47] Simpson v Bass Coast SC [2007] VCAT 165; Bass Coast SC v Christian Brethren Trust [2006]
VCAT 1958
These cases are distinguishable from the cases that deal with developer applicants where the developments have been refused.[48]
[48] Robertson v Nunawading [1973] VR 819; Ungar v City of Malvern [1979] VR 259
The Tribunal considers that the obiter comments in Jewel are distinguishable from the present case.
The distinction between an accrued right and the mere taking of procedural steps which cannot survive the repealing statutory provision
Mr Clynes suggested that in each case where an accrued right has been established it is possible to drill down to find something in the nature of a substantive right, analogous to a common law right. The Tribunal recognises that references are made in the case law from time to time about the distinction between substantive and procedural law which states that substantive but not procedural rights are protected by section 84 Legislation Act and its equivalents[49] but notes, with respect, that the distinction is very difficult to maintain. This point has been recognised by Pearce and Geddes,[50] as well as McHugh J (as he then was) who stated that ‘in discussing procedural rights, I may occasionally be referring to what others describe as substantive rights’. [51]
[49] CSR v Irving [1905] AC 369, Worrall v CommercialBanking Co of Sydney Limited (1917)
24 CLR 28
[50] D Pearce and H Geddes, Statutory Interpretation in Australia, 7th edn (2011) [10.22]
[51] Justice McHugh, ‘Does Chapter III of the Constitution protect substantive as well as
procedural rights? (2001) 21 Australian Bar Review 235 at 237
The Tribunal suggests, with respect, that it is not particularly helpful to analyse the alleged rights by reference to common law rights, nor the problematic dichotomy between substantive and procedural law, and would rather follow the advice of Windeyer J in Mathieson v Burton (extracted above) and avoid classifying the issues in terms of problematic opposites.
A novel right?
There are many hundreds of cases that involve allegations of accrued rights. For example, there are many Australian cases where a developer has been found to have an accrued right.[52] Two of the ACT cases in this category have been discussed above.
[52] See the cases referred to by Morris J in Simpson v Bass Coast [2007] VCAT 165 at [17] – [18] e.g. Lakkis v City of Wyndham [2001] VCAT 863; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33; Oppe v Shire of Lillydale [1980] VR 387; Castellano v City of Port Melbourne (1983) 57 LGRA 231
However, this case fits in neatly with a series of cases in the federal jurisdiction which refer to a continuum of decision-making.[53] The federal cases generally involve an individual making an application for a decision which concerns their own interests and then appealing through various decision-making levels. The roles of the parties in this case are different. Nevertheless the concept of the continuum (which was raised by the applicants in the present case) is helpful because it anticipates a process that might involve multiple decision makers and multiple decisions.[54] The critical question is whether the process has been invoked. If so, it will attract the Esber principle, therefore distinguishing the situation from Abbott.
[53] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [45] to [46];
Repatriation Commission v Keeley (2000) 60 ALD 401; [2000] FCA 532; Re
Rayson and Repatriation Commission (2011) 121 ALD 311; [2011] AATA 233
[54] See comments on this point in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 [45] to [46]
The fact that the original application for approval of the DA was made by a third party to the person alleging the accrued right does not undermine the continuous nature of the process, since the applicants’ entitlement to continue that process is dependent upon them establishing standing. Therefore, unless they can establish material detriment for the purposes of section 419 of the Planning Act, the right to pursue the proceedings will be ineffective. This is analogous to the reference made by Kitto J in Continental Liqueurs Pty Ltd v GF Heublein & Bro. Inc[55] (Continental Liqueurs), where his Honour referred to the independent requirement in that case that the applicant had locus standi to make an application under the relevant provision of the Trade Marks Act as a ‘person aggrieved’.[56]
[55] (1960) 103 CLR 422 at 426
[56] (1960) 103 CLR 422 at 426
Does the fact that proceedings had not been commenced in ACAT when the Amending Regulation came into effect undermine the applicants’ argument? This fact means that some of the cases involving accrued rights are distinguishable because proceedings been commenced in the relevant tribunal at the time the amendment occurred. For example, in Continental Liqueurs Kitto J commented:
If the application had not been pending in court when the new act came into force, I should have agreed that the applicant company had not a right to relief ... which it could thereafter enforce. ... But in my opinion the applicant, by instituting its application in the Court, that is to say file its notice of motion, acquired a right to have the court decide whether it ought to exercise its jurisdiction under section 72 in that application, and that right was within the protection of section 8(c) of the Acts Interpretation Act: cf Colonial Sugar Refining Company Ltd v Irving.
However, Kitto J then goes on to consider the Abbott test and found that the filing of the notice of motion in the case before him was an act done by an individual towards availing himself of the right to have an order made for the removal of the mark from the register. Therefore, accordingly, Abbott was distinguishable because in Continental Liqueurs there had been an act done by an individual towards availing himself of the right.[57]
[57] Abbott v Minister for Lands [1895] AC 425 at 431 quoted by Continental Liqueurs Pty Ltd v GF Heublein & Bro. Inc (1960) 103 CLR 422 at 427
Consequently, the continuum of decision making must be analysed carefully in each case to determine the nature of the rights asserted at each point. In other words, whether or not proceedings have been commenced in the Tribunal at the time of the repeal or the amendment is not determinative of the issue.
Establishing a contrary intention in the statute
The question of whether a contrary intention is established by the amending legislation has often been pivotal in the reasoning of courts when applying section 8 of the Acts Interpretation Act 1901 (Cth). Section 84 of the Legislation Act is not drafted in precisely the same terms, nevertheless an interpretation of the Amending Regulation may yield some insights to assist the Tribunal. However, the Amending Regulation is silent about transitional provisions and also the type of activity that is targeted by its removal of third party appeal rights. It focuses upon a physical area rather than particular participants. In this respect, the Tribunal does not consider that the text of the Amending Regulation or the Explanatory Statement support the interpretation pressed by the applicants that the Amending Regulation is targeted at particular developers. In the Tribunal’s view, the interpretation of the Amending Regulation does not assist in analysing the applicants’ rights in this situation.
CONCLUSION ON THE ACCRUED RIGHTS ISSUE
In conclusion, the Tribunal finds that there is something in the nature of a cause of action that has arisen in this case when the applicants lodged their objections to the DA. The right that arose was a conditional right and the condition was met when the respondent approved the DA. Therefore, the Tribunal concludes that each applicant has an accrued right that is protected by section 84 of the Legislation Act with the consequence that the Amending Regulation has no effect upon the applications for review. Therefore, on this ground the Tribunal’s jurisdiction is not vitiated.
THE INVALIDITY STEMMING FROM UNLAWFULNESS ISSUE
Although the Tribunal is grateful for the erudite arguments made by counsel for both parties regarding the application of the Human Rights Act, because the Tribunal has found that it has jurisdiction on the accrued rights argument, it is not necessary to traverse the arguments concerning invalidity.
CONCLUSION
Based on the foregoing reasoning, the Tribunal concludes that it has jurisdiction and the respondent’s applications for interim orders are accordingly dismissed. The matters are to be listed for further directions.
..………………………………..
Professor Peta Spender, Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT: MOORE AND NATIONAL TRUST OF AUSTRALIA (ACT)
RESPONDENT: ENVIRONMENT AND SUSTAINABLE DEVELOPMENT DIRECTORATE
COUNSEL APPEARING: APPLICANT: Richard Arthur
RESPONDENT: Robert Clynes
SOLICITORS: APPLICANT:
RESPONDENT: ACT Government Solicitor
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER: Professor Peta Spender, Presidential Member
DATE/S OF HEARING:
5 April 2012
PLACE: CANBERRA
DATE/S OF DECISION: 25 May 2012 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
1
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