Mulligan v ACT Planning and Land Authority (Administrative Review)
[2023] ACAT 16
•14 March 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MULLIGAN & ANOR v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2023] ACAT 16
AT 113/2022
Catchwords: ADMINISTRATIVE REVIEW – reviewable decisions under the Planningand Development Act 2007 – whether the development is exempt from third-party merits review in the tribunal under the Planning and Development Regulation 2008 – application dismissed
Legislation cited: Planning and Development Act 2007 ss 7, 408A, schedule 1
Subordinate
Legislation cited: Planning and Development Regulation 2008 ss 5, 350, schedules 3, 1, 2
Residential Zones Development Code
Tribunal:Senior Member K Katavic
Date of Orders: 14 March 2023
Date of Reasons for Decision: 14 March 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 113/2022
BETWEEN:
JULIA MULLIGAN
First Applicant
BILL LEANE
Second Applicant
AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
TRIBUNAL:Senior Member K Katavic
DATE:14 March 2023
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Not every decision made by the ACT Planning and Land Authority (the respondent) under the Planning and Development Act 2007 (the Planning Act) is reviewable by the tribunal. The applicants in this matter lodged an application seeking review of a decision made by the respondent approving, subject to conditions, development on the block next door to them. The respondent says this decision is one of those decisions that is not reviewable by the tribunal, and therefore the tribunal lacks jurisdiction.
Both parties filed written submissions on the question of whether the tribunal has jurisdiction to review the respondent’s decision and agreed to the matter being decided on the papers. I have considered those written submissions in making this decision.
Background
Block 9 Section 8 Yarralumla (the Subject Site) is located in RZ1: Suburban Zone under the Territory Plan. The development application, DA202240356, sought approval for:
(a)An extension of the existing residential dwelling;
(b)demolition of part of the existing garage;
(c)an extension of the existing garage;
(d)a new entry deck and porch;
(e)a new pool, deck, and alfresco area; and
(f)extension of a courtyard wall.
The development application was decided in the merit track and publicly notified.
The applicants lodged a representation in relation to the development application.
On 8 December 2022, the respondent approved, subject to conditions the proposal for dwelling alterations and additions as follows (the Decision):
(a)Demolition of existing pool and deck;
(b)Alterations to existing dwelling and extensions to existing garage and courtyard wall;
(c)Construction of a new swimming pool, deck and alfresco;
(d)Landscaping and tree removal; and
(e)Associated works.
The Subject Site continues to be used for residential use in the form of a single residential dwelling.
Reviewable decisions under the Planning Act
The Decision was made pursuant to section 162 of the Planning Act. Section 408A of the Planning Act governs who may apply to the tribunal for review of decisions made under the Planning Act. Reviewable decisions are defined to include eligible and interested entities, which are set out in schedule 1 to the Planning Act.
A decision to approve a development in the merit track is reviewable by reason of item 4 in schedule 1:
| column 1 item | column 2 reviewable decision | column 3 eligible entities | column 4 interested entities |
| 4 | decision under s 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 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. Note A decision under s 162 is reviewable only to the extent that the development proposal— (a) is subject to a rule and does not comply with the rule; or (b) is not subject to a rule. (see s 121 (2)). | an entity if— (a) the entity made a representation under s 156 about the development proposal or had a reasonable excuse for not making a representation; and (b) the approval of the development application may cause the entity to suffer material detriment | the approval-holder |
If a development application is exempted by regulation then it is not reviewable by the tribunal. Development applications that are exempt from third-party review by the tribunal are set out in section 350 and schedule 3 of the Planning and Development Regulation 2008 (the Planning Regulation). More generally, exempt development is set out in schedule 1 of the Planning Regulation.
The respondent claims the application referred to in item 4, schedule 1 of the Planning Act is exempted by regulation, in particular item 3, part 3.2 of schedule 3 of the Planning Regulation. In the alternative, the respondent contends other exemption provisions apply. The applicants disagree. If not exempt, then the applicants are undoubtedly eligible entities as they made a representation about the development proposal.
Does the development fall within item 3, part 3.2 of schedule 3 of the Planning Regulation?
Item 3 states, “The building, alteration or demolition of a single dwelling, if the development would not result in more than 1 dwelling being on a block.”
The applicants accept that the development does not result in more than one dwelling on the Subject Site but reject that it encompasses only the construction, alteration, or demolition of a single dwelling. In their submission, the applicants reference the objects of the Planning Act, the effect of the Territory Plan, and other defined terms. The applicants at times in their submission conflate the issue of what is exempt from development approval and what is exempt from third-party review in the tribunal.
It is important to consider each of the elements of item 3 and relevant definitions.
‘Development’ is relevantly defined in section 7 of the Planning Act as follows:
7 Meaning of development
(1) In this Act:
development, in relation to land, means the following:
(a)building, altering or demolishing a building or structure on the land;
(b)carrying out earthworks or other construction work on or under the land;
(c)carrying out work that would affect the landscape of the land;
(d)using the land, or a building or structure on the land;
(e)subdividing or consolidating the land;
(f)varying a lease relating to the land (other than a variation that reduces the rent payable to a nominal rent);
(g)putting up, attaching or displaying a sign or advertising material other than in accordance with—
(i)a licence issued under this Act; or
(ii)a sign approval under the Public Unleased Land Act 2013, section 25 (Approval to place sign on public unleased land); or
(iii)a public unleased land permit under the Public Unleased Land Act 2013.
‘Dwelling’ is defined in the Planning Regulation as follows:
5 Meaning of dwelling
(1) In this regulation:
dwelling—
(a)means a class 1 building, or a self-contained part of a class 2 building, that—
(i)includes the following that are accessible from within the building, or the self-contained part of the building:
(A)at least 1 but not more than 2 kitchens;
(B)at least 1 bath or shower;
(C)at least 1 toilet pan; and
(ii)does not have access from another building that is either a class 1 building or the self‑contained part of a class 2 building; and
(b)includes any ancillary parts of the building and any class 10a buildings associated with the building.
(2) In this section:
kitchen does not include—
(a)outdoor cooking facilities; or
(b)a barbeque in an enclosed garden room.
The definition of ‘development’ is broad. It encompasses the demolition, alteration, building, earthworks and other landscaping aspects of the proposal in DA202240356 and the approval given by the respondent. Importantly, none of the development results in more than one dwelling on the Subject Site. In other words, notwithstanding that there are several parts to the proposed development, all of which fall within the definition of development, the block will still only have one single dwelling on it. Therefore, the development does not result in more than one dwelling on the block.
On this basis, I am satisfied that the development application is exempt by reason of item 3, part 3.2, Schedule 3 of the Planning Regulation. However, in the interests of completeness, I consider the issue further below.
Does the development include any ancillary parts of the building and any class 10a buildings associated with the building?
Class 10a buildings are defined in the Planning Regulation as:[1]
class 10a building—
(a) for schedule 1, division 1.3.2 (Exempt developments—non-habitable buildings and structures)—see schedule 1, section 1.40; and
(b) for schedule 1, division 1.3.3A (Exempt developments—community gardens)—see schedule 1, section 1.72.
[1] Part (b) of the definition is not relevant.
Schedule 1, section 1.40 of the Planning Regulation defines class 10a buildings as follows:
1.40 Meaning of class 10a building—div 1.3.2
In this division:
class 10a building includes the following:
(a)a garage, carport or shed;
(b)a conservatory, greenhouse, gazebo, pergola, shelter, shade structure or hail protection structure, studio, workshop or cubbyhouse;
(c)a stable, storeroom or other outbuilding;
(d)a deck, verandah, porch, landing, stairs or ramp.
Note 1 Class, for a building or structure, means the class of building or structure under the building code (see dict).
Note 2 A swimming pool is not a class 10a building (see building code).
Based on the above definitions, I am satisfied that the components of the development that related to the extension of the dwelling, the demolition and extension of the garage, and the deck areas fall within the definition of ‘dwelling’ and are therefore exempt from third-party merits review in the tribunal by reason of item 3, part 3.2, Schedule 3 of the Planning Regulation.
I now turn to the pool and courtyard wall. Item 1, part 3.2 of schedule 3 of the Planning Regulation exempts from third-party merits review in the tribunal:
A development to which schedule 2 (Limited public notification of certain merit track development applications) applies.
Relevantly, in schedule 2 of the Planning Regulation, item 6 refers to “[t]he building, alteration or demolition of a class 10 building or structure” and notes that a class 10 building or structure is a non-habitable building or structure under the building code.
Both the swimming pool and courtyard wall are non-habitable buildings or structures under the building code and are class 10b buildings. Therefore, those components of the development are also exempt from third-party merits review in the tribunal.
In respect of landscaping and tree removal, I accept that the Conservator of Flora and Fauna gave entity advice in relation to the proposal and supported the development and landscaping would otherwise be exempt from development approval.[2]
[2] Section 1.104, schedule 1, Planning Regulation
I do not accept the applicants’ submissions that the Decision is not exempt from third-party merits review in the tribunal. If a decision falls within one of the items in Schedule 3 of the Planning Regulation, then a person or entity cannot seek merits review in the tribunal in relation to that decision as it is exempt. This is not considered by drawing on the definitions of different terms in the Territory Plan, but rather by reference to Schedule 3 and the definition of the terms contained therein. I further agree with the respondent’s submission that whether a development is exempt from requiring development approval is irrelevant once the approval has been sought. That is not determinative of whether a decision can be the subject of merits review in the tribunal.
Conclusion
I am satisfied that the development is exempt from third-party merits review in the tribunal by reason of item 3 of part 3.2 in schedule 3 of the Planning Regulation, and in the alternative item 1 as well.
The application is dismissed.
………………………………..
Senior Member K Katavic
| Date of hearing: | On the papers |
| Applicants: | P van der Walt, authorised representative |
| Solicitors for the Respondent: | Ms S Kivela, ACT Government Solicitor |
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