Noah's Ark Resources Centre Inc v ACT Planning and Land Authority (Administrative Review) - [2017] ACAT 77

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NOAH’S ARK RESOURCES CENTRE INC & ORS v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2017] ACAT 77

AT 10/2017
Catchwords: ADMINISTRATIVE REVIEW – application to review decision by ACT Planning and Land Authority to approve a development application – owner of nearby land sought to be joined as a party to proceedings – whether the neighbouring owner has an “interest in the application” for review of the Authority’s decision

Legislation cited: ACT Civil and Administrative Tribunal Act2008 s 29

Legislation Act 2001 Dictionary Part 1
Planning and Development Act 2007 ss 156, 407, 408A, 419, Sch 1

Cases cited:Noah’s Ark Resource Centre Inc v ACT Planning and Land Authority and Anor [2017] ACAT 44
Gingell v ACT Planning and Land Authority [2016] ACAT 10

Tribunal: President G Neate AM

Date of Orders:  7 August 2017
Date of Reasons for Decision:         22 September 2017
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 10/2017

BETWEEN:
NOAH’S ARK RESOURCE CENTRE INC
Applicant

AND:
ACT PLANNING AND LAND AUTHORITY
Respondent
FEDEM PTY LTD
First Party Joined
NIKDIA HUME PTY LTD
Second Party Joined

TRIBUNAL: President G Neate AM
DATE:7 August 2017

ORDER

Having considered:

(a)     the application by Nikdia Hume Pty Ltd to be joined as a party to this proceeding;
(b)    the submission by Fedem Pty Ltd in relation to that application; and
(c)     the responses of the Applicant and the Respondent to that application,
and being satisfied that Nikdia Hume Pty Ltd has an interest in the application for review of the Respondent's decision to approve DA 201629784,
The Tribunal orders:

Nikdia Hume Pty Ltd be joined as a party to the proceedings.
…………Signed………..
President G Neate AM

REASONS FOR DECISION

On 7 August 2017, the ACT Civil and Administrative Tribunal (the Tribunal) as presently constituted directed that Nikdia Hume Pty Ltd (Nikdia Hume) be joined as a party to AT10/2017.
Fedem Pty Ltd (Fedem), the party joined in these proceedings, sought written reasons for the decision. These are those reasons.

Background

The ACT Planning and Land Authority (the Authority) has approved DA20169784 subject to conditions in relation to a proposal by Fedem for a development on Block 22, Section 28, Rivett (the subject site).
Noah’s Ark Resource Centre Incorporated (Noah’s Ark) has applied for a review of the Authority’s decision.
On 24 July 2017, Nikdia Hume applied to the Tribunal to be joined as a party to AT10/2017.
By email dated 28 July 2017, Noah’s Ark advised that it had no objection to Nikdia Hume’s application.
By email dated 2 August 2017, the Authority advised that it neither opposed nor consented to Nikdia Hume’s application.
By letter dated 31 July 2017, Fedem objected to the application.

Submissions

In its application for order to be joined as a party, Nikdia Hume described its interests in the subject proceedings as follows:
(a)Nikdia Hume is the owner of Block 2, Section 28, Rivett which is approximately 60 metres from the subject site in this matter (Block 22, Section 28, Rivett);
(b)as the owner of an adjoining site, Nikdia Hume was notified of the development application for the subject site;
(c)Nikdia Hume made a representation dated 17 August 2016;
(d)accordingly, Nikdia Hume has an interest in this matter for the purposes of section 29 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
Attached to the application was a copy of a letter dated 17 August 2016 sent by email to the EPD Customer Service Centre by Dimitri Nikias, Director of Nikias Diamond Constructive Logistics. The letter, headed DA20169784 - Block 22 Section 28 Rivett, responded to the “opportunity to provide comment in relation to” DA20169784 and stated that “we have serious concerns in relation to the proposed development.” Those concerns were particularised and related to the proposed removal of trees, the proposed location of staff parking, the waste management plan, and lighting.
Nikdia Hume added that it did not previously apply to become a party joined in this matter because its interest in these proceedings depended on the outcome of a separate application for review by Noah’s Ark arising from approval of the development proposed by Nikdia Hume on another parcel of land. The Tribunal dismissed the application by Noah’s Ark in that case (see Noah’s Ark ResourceCentre Inc v ACT Planning and Land Authority and Anor [2017] ACAT 44 (Noah’s Ark case). The Tribunal’s decision in that matter is the subject of an application for leave to appeal in the ACT Supreme Court. Given those related proceedings, and the uncertainty in relation to an appeal, Nikdia Hume was not previously able to confirm its position in relation to the present proceedings.
Nikdia Hume submits that it would be in the interests of a quick and informal resolution to this matter to have all interested parties joined.
Fedem submits that Nikdia Hume does not have an ‘interest in the application’ for the purposes of section 29 of the ACAT Act. It makes the following submissions in support of that conclusion:
(a)although Nikdia Hume may be the lessee of an adjoining site, it is not apparent that a representation has been made as stated because the letter was from an entity trading as Nikias Diamond. That is the trading name for several companies, none of which is Nikdia Hume. The representation does not disclose that it is made for or on behalf of Nikdia Hume. Therefore it cannot be said that one of the reasons Nikdia Hume has an interest in the application is because it made a representation.
(b)The other ‘interest in the application’ referred to in Nikdia Hume’s request to be joined is mere “uncertainty” as to its development approval for DA20158713 in relation to a site adjoining the subject site due to a Supreme Court challenge to the Tribunal’s decision in the Noah’s Ark case. That should not give rise to an ‘interest’ in proceedings AT10/2017 (see Gingell v ACTPLA [2016] ACAT 10 (Gingell)). Section 419(2) of the Planning and Development Act 2007 (P & D Act) states:
An entity does not suffer material detriment in relation to land because of the 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.
Fedem submits that because Nikdia Hume’s reference to ‘uncertainty’ fails the principles set out in Gingell and is of the kind described in section 419(2) Nikdia Hume does not relevantly have ‘an interest in the application’ and its application to be joined should be dismissed.

Consideration and conclusion

Despite the fact that the letter dated 17 August 2016 was on Nikias Diamond letterhead, I have proceeded on the basis that the letter was sent on behalf of Nikdia Hume. That approach is supported by the fact that Nikdia Hume and Nikias Diamond have the same address, and Dimitri Nikias is a director of both companies. According to the website for Nikias Diamond, Dimitri Nikias joined the Nikias Group in 1997 and he manages the client interface, the design process, and development and building approvals. I understand ‘Nikdia’ to be a conflation of Nikias and Diamond. Although the companies are separate legal entities, I find that the letter was sent on behalf of Nikdia Hume by one of its directors.
The parts of section 29 of the ACAT Act relevant to this application provide:
Division 5.2 Parties
29Parties to applications
(1)The parties to an application are the applicant and the respondent, unless this section or an authorising law otherwise provides.
...
(5)The Tribunal may, by written notice to the parties to an application, join a person as a new party to the application if-
(a)the person has an interest in the application; or
(b)for an appeal- the person was a party to the original decision.
(6)The tribunal must not join a person as a new applicant to an application if the person is not entitled to apply to the tribunal under the authorising law under which the application is made.
Example
Under the Planning and Development Act 2007, s 408 (1) only an entity mentioned in relation to a decision in that Act may apply for a review of a decision.
Note An example is part of the Act, is not exhaustive and may extend but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
‘Interest’ is not defined in the ACAT Act, and the definition of ‘interest’ in relation to land in the dictionary to the Legislation Act 2001 does not apply to the circumstances of this case.
In ascertaining the nature and extent of Nikdia Hume’s interest I have taken into account its proposed development on Block 2 Section 28 as considered in the Noah’s Arkcase.
In this case, Nikdia Hume did not make the original application for the review of the decision to approve DA20169784, but seeks to be joined as a party to proceedings commenced previously by Noah’s Ark. Consequently, the application has to be determined by reference to section 29(5) of the ACAT Act.
As a person with an interest in the parcel of land adjoining the subject land, Nikdia Hume has an ‘interest’ in the development of the subject land greater than that of an ordinary member of the public, or a mere intermeddler or busybody. Arguably, it could suffer some detriment if the action to be joined as a party fails.[1]
[1] See e.g. Gingell v ACT Planning and Land Authority [2016] ACAT 10, [10]-[11] quoting from Australian Conservation Foundation vCommonwealth (1980) 146 CLR 493 at 526, 530; US Tobacco Co v Minister for Consumer Affairs (19098) 20 FCR 520 at 527
However, given the operation of section 29(6), that is not sufficient to join Nikdia Hume to the application. It is necessary to consider whether Nikdia Hume would have been entitled to apply to the Tribunal under the authorising law under which the application is made.
That question is to be resolved by reference to the scheme in sections 407, 408A and 419 and Schedule 1 of the P & D Act. In summary, the section 408A allows an ‘eligible entity’ for a ‘reviewable decision’ to apply to the Tribunal for a review of the decision. Section 407 defines:
(a)‘reviewable decision’ to mean a decision mentioned in Schedule 1 column 2 made by a decision-maker; and
(b)‘eligible entity’ for a reviewable decision to mean an entity mentioned in Schedule 1 column 3 for the decision.
Item 4 of Schedule 1 lists as a ‘reviewable decision’ a decision under section 162 to approve a development application in the merit track, whether subject to a condition or otherwise. An entity is an ‘eligible entity’ in relation to such a decision if:
(a)the entity made a representation under section 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’.
Section 419 sets out the scope of, and limits to, the expression of ‘material detriment’.
419 Meaning of material detriment
(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 a business of the entity or an associate of the entity.
Note Material detriment is used in sch 1.
(3)In this section:
associate, of a person, means––
(a)the person’s business partner; or
(b)a close friend of the person; or
(c)a family member of the person.
First, as noted earlier, I proceed on the basis that a representation was made under section 156 of the P & D Act about the development proposal if not by, then on behalf of, Nikdia Hume.
Second, I am satisfied that the approval of DA20169784 may cause Nikdia Hume to suffer material detriment as it is likely to have an adverse impact on its use of its land for a childcare centre. That impact could arise if the development on the subject land were to be approved without proper compliance with requirements in relation to the matters identified in the letter from Mr Nikias dated 17 August 2017, including in relation to traffic and parking.
Although that letter, and the application to be joined as a party to these proceedings, might have been motivated in part by a concern that approval of DA20169784 might increase competition with the business of an entity on Nikdia Hume’s land, there is no evidence of that motivation or concern. Hence this is not a case to which section 419(2) of the P & D Act applies. More significantly, the concerns about the proposed development as expressed in that letter go to the use of the subject land that might affect the proposed development of Nikdia Hume’s land.
For those reasons, Nikdia Hume has been joined as the second party joined to AT10/2017.

………………………………..
President G Neate AM